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

Criminal Procedure Welling Spring 2008 Outline

5th amd: Two issues
Privilege against self-incrimination
(Miranda and testifying in court)
DP clause against federal government
4th amd: Police practices at investigation stage
6th amd: Right to counsel
14th amd: DP clause against states

Fourth Amendment: “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.”
I. Exclusionary rule (“ER”)
a. Evidence obtained in violation of 4th Am is inadmissible at trial (Mapp v. OH)
i. Development map (pardon the pun)
1. Weeks (1914) Applied only to federal courts; excluded improperly obtained Evidence
2. Wolf (1949) SCt held the exclusionary rule d/n apply to states
3. Mapp (1961) Only 12 years later, SCt ignores stare decisis, holds this rule applies to states.
a. SCt uses “make weight” argument that there is a trend of states adopting the rule.
b. Found exclusion is only remedy that deters 4th amd violations.
c. “Criminal goes free b/c constable blundered” criticism vs. imperative of judicial integrity (courts are part of state and we d/n want state complicit in this wrong)
d. In nearly half-century of exclusionary rule in fed. ct., it hasn’t gummed the works.
e. “There is no war btw the constitution and common sense.”
f. Police searched for evidence. of crime A, but found and prosecuted for (new) crime B.
b. Exceptions to ER
i. Good Faith Exception—No exclusion of Evidence resulting from warrant later found to lack probable cause IF objectively reasonable for law enforcement to rely on it AND objectively reasonable in its technical correctness (US v. Leon). Why?
1. No Evidence that deterrence would result from exclusion (can’t deter neutral magistrates), so integrity of court is not implicated by this “polluted” evidenence.
2. But d/n consider deterring negligence
3. Remedy not present in constitutional text; SCt has continued to limit the remedy.
4. Issue of exclusion of Evidence is separate from issue of 4th amd violation.
5. Ironically, language of 4th amd says, “no warrants shall issue but probable cause exists.”
ii. Limits—GF exception d/n apply if, under totality of circs:
1. LE lies or is reckless with truth in affadavit
2. Warrant obviously facially invalid (rsnbl person would notice) (Groh v. Ramirez)
3. Magistrate wholly abandons judicial role
4. Other Possible reasons to “balance” harm of exclusion and harm 4th amd violations
a. Seriousness of offense
b. Training / Education programs in place
c. Exclusion is so far removed from police conduct, deterrent effect would be minimal
iii. Search pursuant to statute later declared unconstitutional—no deterrence to law enforcement b/c legislators are neutral, therefore no exclusion (IL v. Krull). Analogy to similarly neutral judicial officers in Leon.
iv. Exclusion rule not applied at sentencing hearings. No case on this, but very clearly this is the law.
v. No exclusion at Grand jury hearings (US v. Calandra)
vi. Exclusion rule d/n apply at probation / parole revocation hearings (PA Bd. of Prob’n & Parole v. Scott). Deterrent effect would be minimal.
vii. quasi-criminal/civil cases—no exclusion at IRS assessment hearings (US v. Janis) or deportation hearings (INS v. Lopez-Mendoza); but ER still applies to civil forfeiture hearings (One 1958 Plymouth Sedan v. PA)
viii. No exclusion where civilian / private actor / non-LE could not be deterred. If civilian is acting as agent of police, 4th amd exclusion may apply. Estranged spouses are a murky area.
1. AZ v. Evans: Court clerks cannot be. No exclusion.
2. NJ v. TLO: Teachers can be. May get exclusion.
3. US v. Jacobsen: FedEx employees are not. No exclusion.
ix. Foreign citizen exception—No exclusion where D doesn’t accept enough societal obligations to become part of the nat’l comm’y (US v. Verdugo-Urquidez)
x. Knock & Announce exception – No exclusion for knock & announce violations.
1. Costs of exclusion are high.
2. Attenuated relationship btw violation and seizure of Evidence.
3. Benefits of deterrence are speculative.
4. Other remedies available:
a. 42 USC § 1983 (st actors)
b. Bivens v. Six Unknown Named Agents (fed’l actors)
5. Increasing professionalism and training of police forces.
c. Standing: a separate analysis— Ownership of item not enough for standing. D must have REP in the THING and PLACE.
i. Standing req is satisfied if D has a REP in the thing seized (Rakas v. IL) (Did D have a REP in thing seized?).
ii. Standing satisfied if D has a REP in place item found (Rawlings v. KY) (Did D have a REP in the place searched?).
iii. Q: “Did it violate B’s expectation of privacy when LEOs entered A’s house and seized evidence?”
d. Standing: Was D’s REP Violated? Welling Outline:
i. REP in thing seized? Ownership not sufficient to give REP (Rakas, Rawlings).
ii. REP in place searched? E.g., an apartment.
1. Absent owner landlord? No cases. Hard to say he has a REP. Maybe if renter is a family member (my idea).
2. Tenant resident? Yes, has REP.
3. Overnight guest Yes, has REP. (MN v. Olsen: Guest has enough of a relationship to qualify for REP)
4. Person present 2.5 hours while bagging drugs for sale. No REP. (MN v. Carter). Relevant factors:
a. D was not a social guest but involved in a business transaction, (*Most important*)
b. only at home for a short amount of time,
c. no prior relationship btw resident and D)
d. **Kennedy concurrence: Even a short visit, where there was no prior relationship might create a REP if the visit was social, not commercial**
5. Traffic Stop: Brendlin v. CA
a. After officers stopped a car to check its registration without reason to believe it was being operated unlawfully, one of them recognized defendant, a passenger in the car. Upon verifying that defendant was a parole violator, the officers formally arrested him and searched him, the driver, and the car, finding, among other things, methamphetamine paraphernalia. The State conceded that the police had no adequate justification to pull the car over. The Court held that the relevant question was to ask whether a reasonable person in defendant’s position after the car was stopped would have believed himself free to terminate the encounter between the police and himself. The Court thought that in such circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.
e. Fruits of the Poisonous Tree—any Evidence come at by exploitation of the illegal search or seizure is inadmissible (Wong Sun v. US). Rather than dismiss action, ct takes less harsh approach: exceptionluding Evidence.
i. attenuation factors—1. time lapse (Taylor v. AL: 6 hours insufficient); 2. intervening conduct, incl’g giving of Miranda warnings (Brown v. IL, insufficient by itself); 3. purpose and flagrancy of LE conduct (Rawlings v. KY: may be a threshold to finding evidence is fruit at all)
ii. limitations
1. Payton violations—where LE ha

se (intimate activities)
4. Resident takes steps to protect area from observation (US v. Dunn)
v. Plain Perception—No search b/c no REP in areas in plain view. Two-factor test for plain view:
1. Law enforcement officer is where he has a right to be (US v. Dunn);
2. Law enforcement officer observes something with his senses (Dow Corning Chemical Co v. US, US v. Knotts: Sensory augmentation allowed; Kyllo v. US: No sensory augmentation allowed. Fundamentally same as Katz, where no physical intrusion, but still a search)
vi. 3rd party presence doctrine—no REP that stmts will be kept pvt when talking to UCA (Lewis v. US) or CI (Hoffa v. US), or not recorded when talking to LEO (Lopez v. US) or CI (Osborn v. US), or not sent out live when talking to CI (US v. White)
vii. Technology Issues
1. Thermal imaging: Ok in public places only (Kyllo v. US)
2. Dogs: Ok b/c search is limited to single item and entails no physical invasion (US v. Place)
3. Weapons detection technology: No holdings. Guess.
4. Beeper technology: Only not a search when revealing public information
a. Permitted: Only reveals s/t a LEO could see on public street (US v. Knotts)
b. Not: Reveal info LEO couldn’t have discovered w/o entering home (US v. Karo)
5. Cellular phones: Not a search. These phones provide information regularly, like pen devices. ** But watch out for Kyllo and Karo. Tracking has potential to be so large-scale. This might be an exam question. **
a. Not a search if more like Knotts (outdoors) and Greenwood (convey info to 3rd p)
b. Search if more like Kyllo (uncommon technology) and Karo (intimate area)
6. Dow Chem: Govt used plane and $22k camera to monitor pollution from factory. (Dow)
a. Inconsistent today with Kyllo. Not a sensitive area (factory), but weak case.
7. Heartbeat monitor: no cases yet.
8. Encryption: can govt force companies to provide them with decryption keys? No cases yet.
9. Facial Character Recognition, DNA, and Fingerprinting: Not a search to compare previously compiled data with a database, but may be a seizure.
a. Taking DNA in a new investigation IS a search.
10. Gas Chromatography: Police flashlight or clipboard with a vapor sampling unit. No cases.
c. Fourth Amd Mini Outline
i. Is the government involved?
ii. Is there some 4th Amd activity? (Search or Seizure)
1. Search (Std: REP; many applications)
2. Seizure
iii. Is there PC to believe Evidence of crime is currently located at that place?
iv. Is a warrant required? PC and warrant requirements are separate. See CB 353.
1. Seizure of person (arrest)
a. In Public (no warrant required)
b. In home
2. Search (warrant generally required, but many exceptions)
a. Chimel (SITA)
b. Buie (1st ring – no grounds req; 2nd ring RS of need to search for persons)
c. Plain view (rt to be there + PC the thing they see is Evidence of crime)
d. Lafayette (search at booking d/n require more PC)