Criminal Procedure Outline
Professor Jefferson – Spring ‘08
The University of Kansas School of Law
The Criminal Process
I. Policy Reasoning of the Supreme Ct.
a. Efficiency
b. Accuracy of Verdicts
i. Innocence weighted — Reasonable Doubt
ii. Allowing speediness= better memory from witnesses, public nature disallows non impartial judges
c. Fairness of the Procedure
i. Equating indigent to the rich in protections, knowledgeable to ignorant
ii. Limit coerciveness, puts savvy affluent on same level as indigent
d. Honoring the presence of certain limitations on the power of govt.
II. Legitimacy in the Fourteenth Amendment
a. Limits power of states – Incorporation of the Bill of Rights
i. Extent 14th Amendment incorporates the Bill of Rights
1. Too little = less freedoms afforded in protection of rights
2. Too much = nationalized criminal code
ii. Federalism
1. Broader = less power for state’s sovereign
2. Narrow = less uniformity, which is a traditional notion
iii. Proper Role of Judiciary
1. View that certain incorporation will lead to personal views of judiciary deciding views.
b. Fourteenth Amendment DPC
i. Trend seems to be total incorporation – N5 p. 29
ii. No negative inferences allowed – N6, p. 29
iii. Three aims of 14th
1. Equal Protections
2. Privileges and Immunities granted by BOR
3. Speaks specifically to States.
c. Duncan v. LA
i. Right to Jury incorporated into states – DPC of the 14th Amendment
III. The Fourth Amendment
a. Searches, Seizure, Warrants and Probable Cause
i. Is it a Search? – the inspection of anything that a person should have a reasonable expectation to privacy to determined by society
1. Policy:
a. Private Homes are generally looked at with strict scrutiny, like to protect the home – specifically mentioned by 4th Amendment.
b. Cars tend to have less privacy because of the movability, the ability to view, the high regulation
c. Person is very private, would only allow any stop with reasonable suspicion and can only pat down for a weapon(Terry), we allow searches when under arrest because persons under arrest have a lower expectation of privacy.
2. 2 Questions to determine if Search has happened:
a. Reasonable Expectation of Privacy (Subjective)?
i. Katz – an interference with a person’s reasonable expectation of privacy
1. Protects persons, not places(Phone Call in Public Place but reasonable expectation of Privacy)
b. Does Society see the expectation as reasonable (Objective)?
i. Katz – J. Harlan: society sees expectation reasonable: (Phone Booths have closeable doors, thick glass, and “designed to protect against the uninvited ear” which is recognized by society, still expectation if lipreader). Physical intrusion is not necessary to be designated a search.
ii. Situations Society would deem reasonable/unreasonable
1. Confiding in 3rd Parties
a. U.S. v. White (4-2-3)- Confiding in a 3rd Party any information is not a search b/c the person can go to the police and communicate even if not wired, there is no expectation of privacy, wiring = more reliable(efficiency)
i. Dissent – more chilling to right of privacy, don’t expect people to record you, Harlan – likes warrants
ii. Cases discussed: Hoffa(risk of 3rd person going to police), Lewis(not a search if agent is undercover and acting part), On Lee(Not a search if someone overhears), Lopez(No search if talking to undercover agent w/wire).
b. Smith v. Maryland (6-3
urveillance – anything that can be seen with naked eye falls under plain view
a. California v. Ciraolo – Air using plane deemed not a search, did not violate reasonable expectation of privacy b/c it was visual from a plane and anyone from flying overheard not searching for something could observe, public vantage point. Non-trespassory = not intrusive
i. Dissent – People flying are not purposely observing, public use air for travel, business, pleasure
b. Florida v. Riley (4-1-4) – Helicopter used for observation, still fell under “plain-view”. Police can fly helicopter has low as public to view(no limit here), 1 concurrence said it might be a search depending on how low, but not here
i. Dissent: real, practical height that public would fly would be reasonable not any height allowable
c. Dow Chemical Co. v. US – Aerial surveillance using an aerial camera used commonly to take pictures of landscape, “enhanced the human eye” not a search, publicly available to public, so doesn’t violate Kyllo(also still using human eye). Wouldn’t reveal intimate details, private details of life.
i. Dissent – Sophistication doesn’t matter still had a high expectation of privacy
7. Trash – or abandoned property
a. Greenwood – May look in trash w/o warrant, 3rd Party garbage man, scavengers, kids could check trash and report to police, no reasonable expectation of privacy, not objectively reasonable
