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Criminal Procedure
University of Denver School of Law
Leong, Nancy

Criminal Procedure:

Leong-Summer 2015

Introduction à

1. Drafting of the Amendments:

a. In the late 1700s when they were drafted there are some stark differences between societies now and then.

i. Ex.: No prosecutors, no public police forces, no plea-bargaining, very little imprisonment, and no substantive criminal law that we utilize today (i.e. no Model Penal Code, no federal or state statutes).

b. 1868 – 14th amendment was ratified. The system had begun to change to mimic today. It really started the idea of criminal procedure – that everyone should have protections in the criminal process.

2. Why have such a complex Criminal Justice system?

a. Allows for error correction throughout the process.

4th Amendment – Prohibits unreasonable searches & seizures à

0. Standing:

a. Before we get to whether there was a search or seizure. Usually standing is very obvious and not an issue – only arises in unusual cases.

i. Who has the ability to assert a violation?

1. In a search analysis we ask was there a reasonable expectation of privacy.

b. In order to claim the protection of the 4A, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable. (MN v. Carter)

i. The 4A protection against unreasonable search and seizure does not extend to visitors to another’s home.

1. Was there a search or seizure?

a. Not everything the police do implicates the 4A.

i. If the answer to this is no, the 4A does not apply.

ii. If the answer is blatantly clear then you can dismiss the issue in one sentence.

b. Searches:

i. To demonstrate a search took place the defendant needs to show:

1. Katz test – whether the person had an expectation of privacy (subjective) that society is prepared to recognize as objectively reasonable.

a. “The 4A protects people and not places.” Way to reconcile this with the fact that the court is always concerned about places is that people are in places.

2. Property-based rationale (FL v. Jardines, Martinez, and US v. Jones)

a. This adds to Katz with a property-based portion – trespass into curtilage is sufficient to establish a search.

b. Test is still emerging.

i. Important to remember if a particular intrusion would have been a trespass at common law, in some circumstances that common law trespass will count as a search.

ii. The court suggests this is not just for curtilage. There are other places where intrusion onto property would be analogous to trespass under common law and be sufficient to be a search.

iii. After Jardines, we have an either or test. Either the defendant can show that both the subjective and objective prongs are met of the Katz test, or they can show that there was an intrusion onto property that would look like trespass under common law.

ii. Curtilage –

1. The open fields doctrine distinguishes between open fields and “curtilage” – the area surrounding the home where reasonable privacy expectations receive 4A protection.

2. US v. Dunn:

a. Court applied four factors: (1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, (4) and the steps taken by the resident to protect the area from observations by people passing by.

i. Barn located 50 yards from the defendant’s home was not considered curtilage and in an open field.

b. Other factors that could help defendant: posting of no trespassing signs (modern version would be a passcode on your cell).

iii. Non-Searches:

1. IL v. Caballes (Automobile)

2. Knowingly Exposed to the Public:

a. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4A protection. (CA v. Greenwood, US v. White).

b. If something is knowingly exposed to the public, then to examine it isn’t even a search/seizure. The particular intrusion does not get over step 1 of 4A analysis.

iv. Technology:

1. The governments’ use of a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant. (Kyllo v. US)

a. See also US v. Jones

c. Seizure:

i. Test: Whether a reasonable person would have believed that she was free to decline requests or terminate the encounter. (Drayton)

1. Objective analysis.

a. Factors such as age, gender, language, etc. do not matter.

b. Factors: Advising the individual of refusal to consent to a search, application of force, intimidating movement, overwhelming show of force, brandishing of weapon, blocking of exits, threat, command, or authoritative tone of voice do matter.

2. Reasonable person is the average of everybody, but it is mediated through judges and what they think the reasonable person would do.

3. Police do not have to tell suspects they are free to decline requests or terminate the encounter. (Drayton).

ii. Running from police –

1. An arrest (seizure) occurs when physical force has been applied to a person, or when a person submits to the assertion of authority. (CA v. Hodari D.). A seizure doesn’t occur until some sort of physical restraint is achieved via either the use of physical force or through the suspect’s submission to a show of authority.

iii. If the seizure may be an accident – Brower v. Inyo County

1. If it is accidental then it is not a seizure according to the 4A. You canno

or arrest of all 3 occupants in the car when cocaine was found in the car and none of the occupants would say who owned it. (Maryland v. Pringle).

ii. Warrants:

1. Made with an oath or affirmation by the person requesting the warrant (police officer, or prosecutor).

a. Specifying facts that would satisfy probable cause in the sworn affidavit or statement of the officer.

2. Issued by a neutral magistrate.

a. Does the person have any incentives to issue or not issue a warrant aside from the evidence in the case? If yes, then we do not have a neutral magistrate.

3. Warrant needs to be written with particularity

a. Description of the “places to be searched and the things to be seized” that would allow a reasonable police officer to execute the warrant.

b. Search needs to be limited spatially and the search needs to be limited temporally.

4. Executed in a constitutional manner. (Source of the majority of warrant litigation.)

a. Default requirement is knocking and announcing – the exception is if there is some sort of exigency.

b. Potential Issues:

i. Did they wait long enough to enter the house?

ii. Did they limit their search to the areas identified?

iii. Did they do unreasonable damage while executing the search?

c. Rules to execution of warrants:

i. If there is no exigency – *Exigency is the risk of destruction of evidence or risk to safety of officers or public.

1. The police have to wait long enough either to receive an actual refusal or until enough time has elapsed to infer a constructive refusal (Banks p. 465).

a. Receive a yes – can search immediately.

b. No – can force entry if necessary.

c. Silence – wait long enough to infer a constructive refusal at which point they can use force to enter the premises.

ii. If there is an exigency –

1. Applies a totality of the circumstances test to determine whether the police waited long enough prior to entering the premises.

a. Determined by the risk to destruction of evidence and/or the risk to police safety.

i. More risk = less wait time. Court has upheld warrants that were executed without a knock and announce.

b. In Banks a 15-20 second wait time was upheld in those circumstances.