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Criminal Procedure
University of Illinois School of Law
McAdams, Richard H.

Criminal Procedure

The Fourth Amendment (1791)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fifth Amendment (1791)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Sixth Amendment (1791)
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by in impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Electronic surveillance and entrapment
Due process clause
Eyewitness testimony

I. Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

4th Amendment does not apply to private security/police.
4th protects against unreasonable S&S, but DN protect against government procedure.
Other government actors (school officials, public employers) given more latitude. See drug testing cases.

A. The Exclusionary Rule

1. Should unlawfully obtained evidence be allowed in to trial? Does the 4th Am. Allow warrantless searches?

Mapp v. Ohio (1961) – police forcibly entered; waived a purported warrant which M grabbed and stuffed down shirt; police retrieved, and commenced w/ search.
a. Weeks rule, suppresses unlawfully obtained incriminating evidence. 1st time the court interpreted the 4th to provide for a remedy.
b. Rule: “all e

only if we determine That this is a S or S.)
i. A search DN require that there be an actual physical trespass—what is needed is some kind of expected privacy. (The focus is not on place).
ii. 2 fold requirement for a government invasion of a justified expectation of privacy (p. 342)
1) Subjective/actual expectation of privacy
2) Reasonable, justifiable expectation that society is willing to recognize.
Hypo: posted notices that starting May 1st there will be random searches of apartments for guns, drugs, etc. Q. If I tell you that I’m going to search, and you believe that I’ll do so, then doesn’t that mean that you no longer have an expectation of privacy? –if so, then this would suggest that prong 1 (re. subj.) is easily destroyed and/or not really necessary (i.e. we only need prong 2?).
iii. Old rule (Olmstead & Goldman) – would not have considered this a search, cuz. Neither a warrant nor probable cause would be needed.
Ct. decided that the search was unreasonable cuz 1) no warrant was got (based on probable cause), and 2) D could rightly assume privacy.