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

Spring 2007 Criminal Procedure Professor Welling

I. Substantive Criminal Procedure
A. Basis: Bill of Rights
1) BOR applies explicitly to Federal Government
2) BOR applies to states only as selectively incorporated through 14th Amendment
(a) Rights incorporated
▪ All of the 4th
▪ Part of the 5th
1. Privilege against self-incrimination
2. Deprivation of life, liberty, and property without due process of law
▪ Part of the 6th
1. Right to counsel
2. Right to a speedy trial
(b) Rights that have not been incorporated
▪ Right to have a grand jury indictment (states allowed to use informants to indict individuals)
▪ 8th Am. right to bail
3) federal cases applying an incorporated amendment are binding in state courts
4) for incorporated amendments, the case law interpreting such amendment is incorporated too
B. Remedy: Exclusionary Rule
(a) Clear that exclusionary rule applies in federal cases
(b) After 1961, exclusionary rule applies to states (Wolf)
(c) Supreme Court has limited purpose of rule to “deterrence”

II. 4th Amendment
A. Language: “But no warrants shall issue, but on P/C.”
B. Remedy: Exclusionary Rule – any evidence generated as a result of the violation will be suppressed
1) Applies to states as well (Mapp v. Ohio)
(a) Majority of states already had rule
(b) Court wanted to create uniformity (before this, states got to choose how to handle a violation)
(c) Would otherwise have allowed federal prosecutors to turn over evidence they couldn’t use to state officials to use in state adjudications (Silver Platter Doctrine)
2) Rationale: deterrence – if police can’t use fruits, don’t have incentive to violate 4th amendment
3) Arguments against:
(a) “The Criminal is free to go because the constable has blundered” (Cardozo)
▪ Response: Need people to have confidence in police and judiciary – impossible if they don’t follow the rules themselves
(d) ER will grind criminal prosecution to a halt and allow too many people to go free
▪ Response: applied in federal courts since 1914 and prosecutions have not ground to a halt
(a) Officers don’t care about prosecution of the case as much as we would like to think
(e) Police don’t have time/inclination/training to read and grasp the nuances of the opinions that define the parameters of the ER.
2) Exceptions:
(a) where police reasonably and in good faith relied upon a faulty warrant (U.S. v. Leon)
▪ Facts: Warrant was w/o P/C on review, but was initially issued by the magistrate who found P/C at the time
▪ Reasoning:
1. Police shouldn’t be required to second-guess the magistrate
2. Integrity of the court not implicated; sanction should only be applied if it can act as a deterrence
3. ER is not a “right”
▪ Limit: ER still applies when:
1. officers act recklessly
2. officers knowingly lie to magistrate
3. Magistrate abandons judicial role and issues warrants w/o really looking for P/C
4. Warrant has so many errors that it’s deficient on its face(Groh v. Ramirez)
– Facts: Police took an affidavit to the judge that was reasonable, but it had an obvious mistake on it (stuff was filled out in wrong part of affidavit). They put the address in the description column.
– Reasoning:
a. 4th Am. says warrant must list the things with particularity that are to be seized
b. could not have relied on warrant b/c it didn’t list items to be seize.
(b) good faith reliance upon a statute authorizing a search (Ill. v. Krull) {{WHAT???}}
▪ officers don’t know whether a statute is unconstitutional or not
▪ Arguments why good faith exception should not apply:
1. Still a violation of a constitutional right
2. legislative branch has a different agenda than does the judiciary – not analogous to Leon
– might be encouraged to pass violative laws; less direct electoral pressure with a magistrate
(c) good faith reliance upon information given by court/police staff (AZ v. Evans)
▪ Warrant listed on system should have been taken off
▪ Police who arrested suspect based on warrant found marijuana
(d) authorized uses outside of trial setting:
▪ Sentencing Hearings (Verdugo v. US)
▪ Parole Hearings (Scott)
▪ INS/deportation hearings
▪ Exception: Civil Forfeiture Proceedings (One 1958 Plymouth Sedan v. Penn)
1. Now civil forfeiture is more common b/c of drug cases
B. 4th Am. Overview:
▪ Police must get a search warrant
1. If police search w/o a warrant, still have P/C req’ment
▪ Magistrate must issue the warrant
▪ Judge must look at the warrant at a later time
C. Scope
1) “Government”
(a) 4th Am. covers any gov’t activity, not just police activity
▪ i.e. housing authority or county government, even professors at public universities
(b) ER and 4th Am. generally do not apply to private individuals, but could if person is acting as an agent of the police (Jacobson)
▪ not agents if they did the search on their own
▪ Once Fed Ex opened the box, no expectation of privacy and therefore no unconst. Search
2) “Search”
(a) Plain View – little introduction – if government housing inspector has a right to be in a particular place and observes illegal contraband in open view, that’s not a search
3) “People”
(a) 4th amendment applies only to citizens, legal residents

n w/o P/C b/c when they do that it’s not a search, and so not subject to the 4th Am.
(c) Curtilage: places around your home are covered (Dunn)
▪ 4 Dunn Factors for curtilage:
1. Proximity of area to home
2. Whether area is included w/in an enclosure surrounding the home
3. Nature of use of land
– Forest vs. tennis court
4. Steps taken by resident to protect area from observation
– No trespassing sign, non-chain-link fence
(d) assume land is curtilage & then see whether it meets the std of open fields
(e) Helicopter Surveillance: as long as within legal airspace, then not a search as anyone flying within this airspace could also have observed )Florida v. Riley)
▪ (O’C): public use of choppers at such low heights is rare enough that it may violate reasonable expectations of privacy
(f) Was there an expectation of privacy?
▪ Member of the public + possibility
▪ Use of land
▪ Intimate Actions
4) Other Premises
(a) Businesses and Commercial Places – are covered by the 4th Am.
(b) Bathroom Stalls – most of the time, you have REP
(c) Jail Cells – no REP
▪ person in jail has forfeited their expectation of privacy
1. prisoner’s expectation of privacy must yield to interest in prison security
2. may be different if you’ve already been convicted vs. being in jail pending trial
(d) Tire Treads
▪ You leave tire treads all the time on the road.
▪ You can’t expect to keep them private. Police can make a mold of your tire marks.
(e) Paint Chips off Car
▪ Police can come and take paint chips off your car – it’s in the open
1. it may be a little property destruction, but it’s not a search
▪ However, if the car is in a garage, you might have an expectation of privacy.
(f) Car’s VIN # – cannot reach into your car to move papers to see your VIN # (is a (reasonable) search); are allowed to look through the windshield (is not a search)
▪ Just looking = no search; reaching in = search
1. have a REP that cops won’t reach in and move stuff on yo dashboard
(g) Carry-On Baggage – Bond –
▪ Touching is not a search, but manipulating bags is a search