Criminal Procedure – Spring 2012
(Prof. Sanders)
Introduction
1) Criminal Procedure really means constitutional criminal procedure
a. Primary focus on 4th, 5th, 6th, and 8th Amendments
b. Fourth Amendment
i. Unreasonable search and seizures
ii. Warrant requirement & probable cause
c. Fifth Amendment
i. Due process (Miranda)
d. Sixth Amendment
i. Speedy and public trial
ii. Impartial jury
iii. Informed of charge/confronted with witnesses
iv. Assistance of counsel
e. Eighth Amendment
i. Excessive bail & fines
ii. Cruel and Unusual Punishment
f. [Fourteenth Amendment]
i. Due Process (most of what crim pro concerns)
ii. Equal Protection (more Con Law in general)
iii. Most of the Bill of Rights are incorporated , except for:
1. 5th Am—no right to grand jury indictment (state decides)
2. 6th Am—no right a jury of exactly 12 people/nor unanimous
3. 8th Am—no right of protection against “excessive fines”
2) Why do we need rules for criminal procedure?
a. History—we didn’t have these rights in England; need to ensure genuinely fair trials today; overcome societal problems such as race relations
3) Stages of the criminal case
a. Investigation
b. Arrest
c. Filing of complaint/probable cause statement
d. First appearance/probable cause or bail hearing
i. [low bar—gov’t makes its prima facie case]
e. Grand jury indictment/preliminary hearing
i. [no Δ or defense counsel present]
f. Arraignment
i. [generally the Δ’s first chance to plead]
g. Plea bargaining
h. Discovery and pre-trial motions
i. Trial
j. Sentencing
k. Post conviction – appeals & habeas corpus
i. Appeals are guaranteed by right—still part of criminal process
ii. Habeas corpus are a separate civil case—collateral challenge on conviction or sentence
Searches and Seizures
Relevant Provisions: Fourth Amendment
[I] – What constitutes a search
1) In general, a Fourth Amendment search only occurs where there is a “constitutionally protected reasonable expectation of privacy”
a. This used to be evaluated solely as a matter of Common Law trespass (Olmstead), but the Trespass Doctrine was overruled in Katz
b. The inquiry is now one of “reasonableness”
i. Note: “the Fourth Amendment protects people, not places”—the Constitution protects interests associated with places, not the places themselves
c. Idea is that the Gov’t can only act on reasonable suspicion
2) Two Part Test from Katz for determining const’l protected privacy interests:
a. (1)—(subjective)—Is there an actual expectation of privacy? [always yes, basically]
b. (2)—(objective)—Is society prepared to recognize that expectation as reasonable?
i. Objective Reasonableness factors in Katz:
1. Intent of Framers
2. Uses to which individual has put a location
3. Societal understanding that some areas deserve protection from government intrusion
3) Open Fields Doctrine (Oliver, Dunn)—while the Fourth Amendment protects the home and the curtilage (area immediately surrounding home), open ground beyond these is not deserving of constitutional protection
a. Factors for determining curtilage (Dunn):
i. Proximity of area to home
ii. Whether area is included within enclosure surrounding the home
iii. Uses to which the area is put
iv. Steps taken by resident to protect the area from observation from pasers-by
4) Aerial surveillance thus far appears to be constitutional (Ciraolo, Riley)
a. Idea that any member of the public could be lawfully present in the airspace above a home, thus meaning there is no objectively reasonable expectation of privacy from aerial surveillance
b. A Δ who “knowingly exposes” illegal activities to public has no privacy interest
5) Advanced technology may constitute a search depending on what it reveals
a. Kyllo—use of thermal imaging device that revealed the intimate details of the home was a search because it was tantamount to police actually being present in the home
b. Jones—use of GPS tracker on a car was a search because it revealed contents of the home (plus long duration of use)
c. Karo—use of a tracking beeper inside the home was a search because it described the contents of the home
d. Knotts—use of a tracking beeper on public roads was NOT a search because any member of the public could see the car; beeper just “augmented” cops ability
i. As noted above, observation of public behavior is NOT a search
e. Also, remember that Katz involved an (illegal) wiretap of a public phonebooth
f. Electronic surveillance is a bit tricky:
i. Domestic electronic surveillance is a search (use Katz analysis)—cases like Katz, Kyllo, and Karo make clear that police need a warrant to conduct electronic surveillance of people w/n the US for criminal investigations
ii. Foreign electronic surveillance may or may not be a search
1. US v. Dist. Ct of MI—W-less electronic surveillance of a domestic terrorist is valid on the basis of the President’s expanded foreign affairs powers—thus, the need to ensure national security overrides the Fourth Amendment’s warrant requirement
Breakdown of Factual Situations (Rsn Exp Prv)
Yes Search
No Search
· Electronic listening device in phone booth (Katz)
· Thermal imaging of home (Kyllo)
· Area encompassing home and curtilage
· Use of beeper in home (Karo)
· GPS tracking devices on cars/in garage (Jones)
· Open fields and items outside the curtilage of the home (Oliver, Dunn)
· Aerial surveillance(includes open areas of home and curtilage) (Ciraolo, Riley)
· Garbage left for collection outside of curtilage (Greenwood)
· Surveillance on public roads (Knotts)
· Beepers in 3rd party products until inside private home (Knotts-Karo-Jones)
· Electronic surveillance of domestic terrorist for national security purposes
[II] – Probable Cause and the Warrant Requirement
1) Probable Cause is more or less = to “totality of the circumstances” (TOTC)
a. TOTC = “sufficient to warrant a man of prudence and caution in believing that the offense had been committed”
i. i.e., facts & circumstances must warrant the (objectively) prudent and cautious officer’s belief that an offense has been committed
b. In other words, sufficiency of belief an objective standard of reasonableness
c. Probable Cause is determined on a case-by-case basis; rigid multi-part tests will not do
d. Probable Cause is more than Reasonable Suspicion but less than a Preponderance of the Evidence
e. Police are allowed to be reasonable inferences
i. Pringle—Rsn to infer that one or all three Δs in car own drugs
ii. Whren—“suspicious” driving in a known drug neighborhood is sufficient to give an obj. reasonable officer PC
1. Plus, violation of drug law is suff. P.C. to search car
f. Credibility of informants—balanced awareness of those factors in favor and those not in favor of reliability
g. Independent Corroboration Rule
2) The Fourth Amendment Warrant Requirement
–Warrant Analysis has Five Requirements:
a. (1)—neutrality
i. Basically, a judge must sign the W
ii. Must be evident that the neutral magistrate believes PC exists
1. SoP—this is the Judiciary acting as a restraint on the Executive
b. (2)—oath or affirmation
i. Officer must file a separate affidavit describing his basis for PC (observations, talking with witnesses, etc.)
ii. Affidavit describing facts may be incorporated by reference in W
iii. Affidavit may be based on hearsay
c. (3)—basis of probable cause
i. TOTC standard
ii. Could be several things: officer’s affidavit, or included in W itself
1. Groh v. Ramirez—failure to include specific affidavit in W itself makes the warrant invalid (even though separate affidavit had plenty of facts—it has to be included to count)
d. (4)—particularity regarding details of persons/places/things to be searched
i. W is designed to prevent “exploratory rummaging”
1. Andersen—W to search land fraud Δ’s officer for papers and “other fruits, instrumentality, and evidence of crimes unknown” was valid; despite seeming lack of specificity, flexibility needed when search through a large amount of documents; plus, inevitable that cops will see unrelated docs
ii. Can likewise incorporate other documents by reference (affidavits)
iii. Technical errors are permissible (e.g., wrong address) so long as it is reasonable to rely on these errors
1. No retroactive invalidation—based on info that was or should have been disclosed at the time the W was issued
2. Officers must cease actions when mistake discovered
a. Garrison—cops accidentally search multiple connected apartments, but W only specifies one apartment; cops cease once they know they entered a separate apartment—reasonable here because cops couldn’t know until they entered apartment that it was attached to another; good faith
e. (5)—period for execution
ome
1. Mobility increases risk of escape
2. Existing government regulation/control of vehicles diminishes privacy interest
v. Scope of search is restricted to area that could conceal or hold contraband
1. Includes compartments and containers, as well as a passenger’s containers
2. Plain View exception applies in the context of automobiles
3. Exigencies of officer safety and evidence preservation apply, too, of course
vi. CA v. Carney—gay sex for pot in a mobile home; W-less search justified based on mobility of vehicle and existing gov’t regulation (pseudo “consent”)
vii. Acevedo—drug set-up; feds have PC to believe pot stored in trunk, so W-less search justified
1. Basically, you can search any part of the car without a Warrant so long as you have Probable Cause—i.e., if the cops are specifically looking for something
b. Situation Two—the search of an automobile incident to arrest
i. Generally, police can search your car right after they arrest you after stopping you on the road
ii. Scope is restricted to passenger compartments and containers with “reachable distance”—i.e., so Δ can’t reach into backseat and pull a gun on cop
1. Applies to recent occupants of the car
iii. Same exigencies: officer protection and prevent destruction of evidence
iv. NY v. Belton—searches pre-arrest are valid
1. After arresting guys in car, cop searches car and finds pot in guy jacket; valid exception because drugs were within Δ’s “immediate reach”
v. Thornton—searches post-arrest are valid
1. It does NOT matter where the Δ is in relation to car (seated inside vs. outside or locked in patrol car)–police have broad discretion
2. Police authority to search incident to arrest does not depend on where the Δ is because arrests can always turn volatile
vi. AZ v. Gant—searches when Δ is secured are invalid
1. Three guys sit outside car handcuffed while cops proceed to search car; contrary to Thornton, no exigencies here to justify W-less search (no way for handcuffed Δs outside to reach gun/destroy ev)
vii. Bottom line:
1. Police have broad discretion both pre/post arrest and in/out of car
2. It does not matter whether you are arrested inside the car or outside of it—the same exigencies still apply
3. However, it does matter whether the Δ is secured or not
a. Gant—Car searches incident to arrest apply in two situations:
i. Arrestee is unsecured and the auto is still accessible
ii. There is reason to believe that evidence related to arrest could be inside auto
6) Inventory Searches
a. Inventory searches are basic administrative procedures where cops create an inventory of stuff seized in a search—W-less searches in this context are valid because the policies underlying the Fourth Amendment are not present here provided that:
i. (A) Actions are routine administrative procedure
ii. (B) Scope is limited to investigative purposes
iii. (C) Conducted in good faith
b. SD v. Opperman—guy’s car is towed for traffic violation; cop does inventory search at impound yard and finds drugs in car, arrests guy when he comes to get car
i. W-less inventory search was valid because police are acting as custodians rather than investigators
c. IL v. Lafayette—similarly, stationhouse searches have always been valid
i. The prevention of fraud (i.e., Δ can’t claim cops stole his wallet) justifies this
