Criminal Procedure
Professor Gottlieb
Fall 2002
Chapter 1 INTRODUCTION – Basic Principles
I. Steps in a Criminal Proceeding
A. Arrest: When a police officer has probable cause to believe that a suspect has committed a crime, the officer makes an arrest. An arrest may occur either with or without a warrant (most are made without a warrant). Arrest usually involves taking the suspect into custody and transporting him to the police station.
B. Booking: At the police station, the suspect undergoes “booking” which includes entering information about him into a police blotter, photographing and fingerprinting him.
C. Filing complaint: A prosecutor now decides whether there is enough evidence to file charges; if so, the prosecutor prepares a “complaint.”
D. First appearance: After the complaint has been filed, the suspect is brought before a magistrate. In most states, this is called the “first appearance.” Here, the magistrate informs D of the charges, notifies him that he has the right to counsel, and sets bail or releases D without bail.
E. Preliminary hearing: If the case is a felony case, a “preliminary hearing” is held. Again, this is in front of a magistrate, and usually involves live witnesses so the magistrate can determine whether there is probable cause to believe that D committed the crime charged.
F. Filing of indictment or information: In the federal system, or in a “grand jury” state, the next step is for a grand jury to hear the prosecutor’s evidence and to issue an indictment. In a non-grand-jury state, the prosecutor now prepares an “information,” reciting the charges.
G. Arraignment: After the indictment or information has been filed, D is “arraigned”; that is, he is brought before the trial court and asked to plead innocent or guilty.
H. Pre-trial motions: Defense counsel now makes any pre-trial motions.
I. Trial: Next comes the trial. If the charge is a felony, or a misdemeanor punishable by more than six months in prison, all states (and the federal system) give D the right to have the case tried before a jury.
J. Sentencing: If D pleads guilty or is found guilty during the trial, he is then sentenced (usually by the judge, not the jury).
K. Appeals: A convicted defendant is then entitled to appeal (e.g., on the grounds that the evidence admitted against him at trial was the result of an unconstitutional search).
L. Post-conviction remedies: Both state and federal prisoners, even after direct appeal, may challenge their convictions through federal-court habeas corpus procedures.
Legislative Designation
a. Civil Penalty
1. US v. LO Ward (p.2) The Supreme court held that a penalty imposed upon persons discharging hazardous substances into navigable water was a civil penalty and therefore that reporting requirement for violators did not violate the 5th amendment’s privilege against compelling
2. The court said that the questions of whether a penalty is a criminal or civil is a matter of statutory construction
b. Commitment of Sex Offenders
1. Allen v. Illinois
2. Kansas v. Hendricks
c. Distinguishing Civil and Criminal Contempt Proceedings
1. UMWA v. Bagwell
ii. Criminal Procedure Issues in a Civil Context
d. 2 Aspects of Constitutional Law
i. The Incorporation Doctrine
1. Duncan v. Louisiana
2. Relationship between Due Process and Incorporated Rights
1. State Constitutional Protections
SEARCH AND SEIZURE
b. An Introduction to the 4th Amendment
i. 4th Amendment to the US Constitution says “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.”
ii. It applies to searches and seizures of both property and arrest of persons – but only government searches – not private ones.
1. The 4th Amendment regulates state action, but does not limit private individuals action on their own initiative.
2. No matter how unreasonable a search may be the 4th amendment is not implicated if the search is conducted by private actors not acting as government agents.
iii. Problems with gathering evidence (p.32)
1. lack of voluntary cooperation
iv. Government can use the Fruits of a Private Search
1. If a private party conducts a search and uncovers evidence the 4th Amendment does not prohibit the Government from using the evidence in a criminal trial.
v. “the People as a Limiting Term
a. Does not protect Aliens when the Search is conducted Abroad
b. Courts have said that the 4th amendment does not apply to a search of property that is owned by a non-resident alien and located in a foreign country.
i. US v. Verdugo Urquidez (p.33)
1. Mexican Citizen apprehended by Mexican Police and taken to US for trial on Drug Charges. Police conducted warrantless searches of D’s residences in Mexico.
2. Judge said that the purpose of the amendment is to protect the people of the US from abuses by their own government – not aliens outside of the US.
c. Basics of the 4th (p.32)
i. The Purpose of the Amendment
1. To Protect Privacy
2. To Protect Innocent and Guilty Alike
ii. TWO CLAUSES
1. The Reasonableness Clause
i. Sets the general Standard
ii. A search must always be “reasonable” Whether or not there is a search warrant or arrest warrant, the arrest or search must not be “unreasonable”
2. The Warrant Clause
i. Imposes the requirements for obtaining warrants
ii. A warrant is sought to justify government action.
iii. Courts state that a search and seizure are presumed to be unreasonable unless they are carried out pursuant to a warrant.
iv. A S and S is presumed unreasonable in the absence of a warrant based upon probable cause.
v. BENEFITS
1. The warrant requirement requires the officer to establish on the record the facts allegedly constituting probable cause before the search is conducted.
2. Also requires that the warrant must particularly describe e the place to be searched and the things to be seized. It defines the scope of the search and thereby limits the discretion of the officers conducting the search
3. NOTE Warrant clause is predominate
3. Probable Cause
i. The minimum showing necessary to support a warrant application
ii. Not used to demarcate reasonableness generally in search and seizure situations.
4. State Action Requirements
a. People have a right to be free from all search and seizures that are not reasonable, even if conducted by private persons. However, the 4th only deals with S and S from government.
b. BUT keep in mind the protection is against all unreasonab
checks) imposed upon banks and individual by Bank Secrecy Act of 1970 violate the 4th Amendment?
ii. Not protected against government seizures
i. The amendment establishes the right but does not mention the consequences of violation of that right.
ii. Dual Requirements of a warrant and probable cause are NOT needed in the following situations:
1. When the warrant is impracticable to obtain
2. Where the police conduct a limited seizure to investigate possible criminal activity and a limited search for weapons to protect the investigating officer (TERRY DOCTRINE)
3. Where the official is searching for evidence, but the search is conducted for “special needs” – purposes other than criminal law enforcement.
4. Where a search is conducted incident to a valid arrest
5. Where there is a voluntary consent
6. Where the citizen is arrested in public (police must still have probable cause)
7. Where an incriminating object is in plain view or plain touch – it may be seized without a warrant (only probable cause is required)
8. Where the officer searches an automobile or other form of transportation
iii. Exclusionary Rule – Remedy
1.
2.
3.
4. D cannot obtain exclusion of evidence unless his own personal 4th amendment rights are violated
5. When evidence has been obtained in violation of the S and S protections guaranteed by the 4th, this evidence cannot be used in the case against the defendant.
6. This rule is also applicable to the States
7. However, the court says that the illegally obtained evidence CAN be used at the trial to impeach the credibility of the D.
8. This is a court created remedy not set aside in the Constitution.
The court is NOT constitutionally required to exclude illegally obtained evidence. – It is just a court REMEDYIt is designed to deter future violations of the 4th.
iv. The fruit of the poisonous tree
v. Has been devastating to gun control laws
1. Unless a police officer has PC to make a reasonable search, nothing found during the search, including guns, can be introduced into evidence. Therefore, it is virtually impossible to convict someone in the US of carrying a weapon illegally.
1. If the search was illegal, nothing found in the search (drugs, weapon) can be used.
This provides that evidence obtained in violation of a defedant’s 4th Amendment rights must be excluded from trail in both federal and state courts.
(p.32) – when the legislature calls something criminal it becomes criminal.
iii. Miller – There is NO reasonable expectation of privacy to be protected. If records are accessible to the bank and thus there was no reasonable expectation that they would be free from government surveillance
