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Criminal Procedure
University of Kentucky School of Law
Connelly, Allison

Criminal Procedure- Professor Allison Connelly

Fall 2016


Steps in a Criminal Case

Crime- substantive criminal law
Arrest, complaint, warrant, summons
Initial appearance
Preliminary Hearing- probable cause hearing
Grand jury- indicted or directly submitted
Indictment- true bill handed down by grand jury
Arraignment- def now in ct with proper jurisdiction to try the case
Pretrial- where most cases are won or lost- motions filed (discovery, suppression, etc.), notices to use certain defenses, guilty pleas and deals made.
Trial- case won or lost
Judgment and imposition of sentence- PSI filed, post-trial motions, new trials, JNOV, etc.
Appeal- sentence of 20+ years go straight to SC. Death sentences= mandatory appeal cannot be waived.

How to analyze Fourth Amendment search and seizure challenges:

Was there a search?
If yes, did it violate (a) reasonable expectation of privacy? (b) possessory interest in property?
Is there standing?
Was there state action?
Did gov. agent have a warrant? If not, exception?
Was the warrant proper?
Was the warrant properly executed?

Chapter 6 – Arrest, Search and Seizure: the 4th amendment

The Exclusionary Rule- the remedy for a 4th amend violation

Wolf v. Colorado- Wolf was convicted for violating CO law- was convicted in Co state court.

Holding- in a prosecution in a state court for a state crime the 4th amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.

Mapp v. Ohio- 1961- officers demanded entrance into Mapp’s home to search for a person who they had word was hiding there. Mapp demanded a warrant. Officers showed a fake warrant- entered- and arrested Mapp and searched the house. He was convicted at trial without search warrant in evidence.

Issue- whether unconstitutionally seized evidence was admissible at trail under Wolf?
Holding- all evidence obtained by S&S in violation of Constitution (fake warrant) is inadmissible in state court! – right to privacy is a basic right of free society.

U.S. v. Leon- 1984- Reasonable reliance upon an otherwise invalid search warrant does not render evidence obtained during the search inadmissible.

issue- whether evidence obtained under a search warrant found not to be supported by probable case is inadmissible?

Only when affidavit is knowingly or recklessly false is evidence obtained under that search warrant excludable. Purpose of exclusionary rule is to deter police misconduct. Exclusion of evidence would do nothing to deter judges’ decisions in granting warrants, when found not supported by PC.

Hudson v. Michigan- 2006- police executing a warrant for drugs and firearms at Hudson’s home. Knocked and announced their presence and entered 3-5 seconds after. Hudson moved to suppress drugs and weapons found.

Rule- police must “knock and announce” (Wilson v. Arkansas) and must wait a “reasonable time” before entering.
Evidence may be admitted here- exigency and fear of destroying evidence.

Herring v. U.S.- 2009- Herring went to sheriff’s office to retrieve items from impounded truck. Investigator arrested him on outstanding warrant for failure to appear. In their search incident to arrest invest found drugs and a handgun (felony possession). Afterwards they found out the database was incorrect and his warrant for arrest was recalled.

Issue- whether the evidence obtained in search should be suppressed?
Rule- good faith exception- GFE to the exclusionary rule applies when a police officer makes an arrest based on warrant later found to be incorrect not by his own error. He believed the warrant and his actions were proper.

** exclusionary rule does not apply where police conduct was not sufficiently deliberate! ** begins to take into consideration police conduct –> the question turns on the culpability of the police and the potential for exclusion to deter wrongful police conduct.

Exclusionary Rule Summary-

1961- Mapp- all evidence that is unconstitutionally obtained is excluded.
1984- Leon- good faith exception (only applies in warrant cases)
1987- Krull- exclusionary rule is aimed at police conduct, not at statutes enacted by legislative conduct

When police action is non-culpable, then exclusionary rule is not applied.
Exclusionary rule only comes into play when there is fruit from the poisonous tree (when there is evidence obtained from the “bad search”).

1995- Evans- court employee (clerical error) results in an arrest and incidental search. But arrest warrant was withdrawn. Clerk had failed and caused error. No indication that police officer was not acting in good faith and

en fields” vs. “curtilage”

An open field is accessible to the public in a way that the home is not.

It is not curtilage.
Does not need to need to be a field, does not even need to be open.
Not a person, house, paper, or effect. Basically anything else.

What is curtilage?

It is the buffer around the home- your yard, porch, driveway- “the area immediately surrounding the house that harbors intimate activity associated with the home.”

Proximity of the area to the home
Area in an enclosure surrounding the home (fence)
What is the use of the area- actual use
What steps does owner take to preserve privacy of the area

Policy- The curtilage idea may benefit wealthy people- they have more money, therefore more land to be considered curtilage and used as a protective privacy buffer around the home.

Florida v. Riley- What if police fly over greenhouse in helicopter?

Rule- non sense-enhanced surveillance by gov of activities occurring within the curtilage of a home is NOT a search if, 1) occurs from public airspace, 2) in a non-intrusive manner, 3) and does not reveal intimate activities of the home.

Kyllo v. U.S. – what limits are there upon the power of technology to shrink the realm of guaranteed privacy? Thermal imaging from police cruiser was used to look into a home and found large emissions of heat which police believed to be from lamps used to grow pot plants.

Yes, search. 5-4 decision.

Andersen v. Maryland- whether seizure of a law office documents and business records, and their admission into evidence at trial, compelled petitioner to testify against himself in violation of the 5th amendment?

Rule- a party is privileged from producing the evidence but not from its production. -Justice Holmes.