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Criminal Procedure
University of Kentucky School of Law
Welling, Sarah N.

Criminal Procedure

Welling

Spring 2013

Exam Tips

· Use her exact language.

· Analysis process needs to conform to what was articulated during the discussion on 3/7.

· Plain view doctrine seems to be applicable in a lot of different situations.

· Check circled things in notes.

· Magistrate Judge Weir’s probable cause examples.

· Most traffic stops are considered stops, not full custodial arrests (need only reasonable suspicion) (probable cause is advanced in Whren, though).

· Exam:

o Need to break up pieces of evidence.

o Know 4th Amendment, 5th Amendment, 6th Amendment, Due Process Test

o 3 kinds of police activity: search and seizure (4th), confessions and interrogation (5th, 6th, DP, maybe 4th), pretrial identification.

o Steps:

§ Identify the evidence at issue

§ Check and see if any right is violated

Chapter 1: The Legal Regulation of the Criminal Justice Process

Section 2. The Steps in the Process

1. Pre-Arrest Investigation

2. Arrest

3. Booking

4. Post-Arrest Investigation

5. The Decision to Charge

6. Filing the Complaint

7. Magistrate Review of the Arrest

8. The First Appearance

9. Preliminary Hearing

10. Grand Jury Review

11. The Filing of the Indictment or Information

12. Arraignment on the Information or Indictment

13. Pretrial Motions

14. Guilty Plea Negotiation and Acceptance

15. The Trial

16. Sentencing

17. Appeals

18. Collateral Remedies

Chapter 2: Sources of Criminal Procedural Law

Section 1. The “Fundamental Fairness,” “Total Incorporation,” and “Selective Incorporation” Theories

1. 4th 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.”

2. 5th 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 offence to be twice put in jeopardy of life of limb; nor shall be compelled in any criminal case to be witness against himself, nor be deprive of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

3. 6th Amendment (1791) – “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an 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 defence.”

4. Does the Bill of Rights apply to the states?

a. Three Approaches:

i. Total Incorporation

1. Championed by Justice Black, but never embraced.

ii. Selective Incorporation

1. The Due Process Clause of the 14th Amendment fully incorporates particular rights contained in the first eight amendments.

2. Only a few protections in the Bill of Rights remain unincorporated.

iii. Zero Incorporation

b. Implementation of the Bill of Rights applies the same to state and federal court.

Chapter 6: Arrest, Search, and Seizure

Section 1. The Exclusionary Rule

1. Exclusionary Rule – the general rule in criminal procedure that evidence obtained in violation of the 4th Amendment may not be used against the individual whose rights were violated in obtaining the evidence.

a. Judicially created remedy.

b. The Supreme Court does not like this rule, will try to find ways to limit it.

2. Exclusionary Rule – Context of the 4th Amendment

a. Weeks Case (1914) – in all federal cases, the remedy for violation of the 4th Amendment is to exclude the evidence.

b. Wolf Case (1949) – the exclusionary remedy does not apply to the states.

3. Mapp v. Ohio, 367 U.S. 643 (1961)

a. Holding – the exclusionary rule applies equally to both the state and federal governments.

b. The purpose of the exclusionary rule is to deter police misconduct.

c. Cardozo – “the criminal goes free because the constable has blundered.”

i. Judicial integrity point – the criminal may sometimes go free, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws.

d. Harlan’s Dissent – focuses on federalism concerns and state rights.

i. Problems of criminal law vary from state to state, and the states should be allowed to use what works best for them.

4. United States v. Leon, 468 U.S. 897 (1984)

a. Holding – so long as police have a good-faith belief that a warrant has been properly issued by a magistrate and based on sufficient probable cause, evidence obtained pursuant to the warrant is admissible.

i. Establishes the “good-faith exception” to the exclusionary rule.

b. Steps to get a warrant:

i. Police officer presents facts to magistrate judge (through affidavit).

ii. Magistrate judge decides if there is probable cause, if yes, issues warrant (attaches affidavit to it).

iii. Police officer executes the warrant.

iv. The trial judge will determine if the warrant was valid, and his ruling will trump the magistrate judge.

1. Was the warrant supported by probable cause?

a. Yes – okay!

b. No – warrant is invalid and evidence cannot be admitted at trial!

c. The only purpose of the exclusionary rule is to deter police misconduct. Here, the law enforcement officer acted reasonably, the error was on behalf of the neutral magistrate, who we have no reason to deter.

d. Brennan’s Dissent – a chief consequence of this decision will be to conve

the good-faith exception.

c. Again, the exclusionary rule was designed to deter police misconduct, not mistakes by court employees.

12. Whether the 4th Amendment applies to foreign nationals

a. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Note Case)

i. The phrase “the people” in the 4th Amendment refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this community to be considered part of that community.

13. Hudson v. Michigan, 547 U.S. 586 (2006)

a. The exclusionary rule does not necessarily apply to suppress evidence obtained through a violation of the knock-and-announce rule.

14. Herring v. United States, 555 U.S. 135 (2009)

a. Question turns on the “culpability of the police” and the potential of exclusion to deter the police.

i. In order to deter conduct, it must be culpable conduct. The officer must possess the requisite mens rea:

1. Intentional

2. Knowing

3. Reckless

4. Grossly negligent

ii. Plain negligence is not adequate mens rea to suppress the evidence.

15. Remedies for violation of the 4th Amendment:

a. Criminal action should be dismissed (due to lack of evidence).

b. Civil action remedies (§ 1983 actions).

c. Federal Civil Rights crimes (rare).

Section 2. Protected Areas and Interests (the definition of search)

1. Katz v. United States, 389 U.S. 347 (1967)

a. Two-part “reasonable expectation of privacy test” from Harlan’s concurrence (for the 4th Amendment to apply):

i. A person must exhibit an actual (subjective) expectation of privacy.

ii. The expectation must be one that society is prepared to recognize as reasonable.

b. Defendant has a reasonable expectation of privacy because even though everyone can see him in the telephone booth, no one can hear him. States action constituted a search under the 4th Amendment.

i. A different result would arise if one was merely reading his lips while he was in the telephone booth. His lips are in plain view to the public.

c. The 4th Amendment protects people, not places.

d. Black’s dissent:

i. The framers were aware of the practice of eavesdropping, and would have used appropriate language to prohibit or restrict the use of evidence obtained by this method if they desired to do so (textual and original intent argument).

ii. Welling – eavesdropping could violate “persons” provision in text of 4th Amendment.