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Criminal Procedure
University of Mississippi School of Law
Nowlin, Jack Wade

Criminal Procedure Skinny

Thom Bittick Fall 2003 – Prof Nowlin’s class


Duncan v Louisiana (1968)

*Convicted of Battery…wanted jury trial but LA said “minor crime” no jury.

SCt: 14th Amend makes 6th Amend applicable to states

Rule: Serious Crimes afforded Jury Trial

Boyd v US (1886)

*Gov takes papers (mere evid) w/o a superior possessory interest (i.e. contraband, stolen goods, and instrumentalities of crime).

*4th Amen seen as protecting property rights.

Rule: 4th and 5th cyclic protection of one another in protecting property

4th……search w/o warrant = prohibited

5th……seize w/ warrant = prohibited as against Self Incrimination.

Olmstead (1928)

*FBI wiretap OUTSIDE home

*Had tap been inside, it would have been violation of Boyd

Rule: No property rights in conversation…. b/c “intangible.”

Modern Beginnings

Schmerber v CA (1966)

*DUI case – blood taken over objection

*FIRST case to reject “Property Rights” (Boyd) analysis of 4th and 5th

*New view

4th = Privacy

5th = communication (written and oral) testimony

Rule: 5th Amend: Gov’t can’t force to testify against self

4th Amend: Gov’t can force to hand over physical evidence with a search

warrant & P/C or P/C and warrant exception

Warden v Hayden (1967)

*Rejects “mere evidence rule”

*Protecting “Property Rights” = crude way to protect “Privacy”

Rule: Search for “mere evidence” is no more intrusive than searching for contraband/ stolen goods/ or instrumentalities.

Katz v US (1967)

*Guy in phone booth, Gov’t taps outside of booth.

*SCt: 4th Amend protects people, not places!



KATZ TEST———à 1) Actual Subjective Expectation of Privacy

2) Reasonable Justifiable Objective Expectation of Privacy

**Katz had a justifiable objective “reasonable expectation of Privacy”

Schmerber (1966) ——-à

Hayden (1967) —à

Katz (1967) ———à Kills Boyd

Search? Or No Search?

No Search

US v White (1971)

*“False Friend” has wired phone – state’s evidence to police

Rule: No reasonable expectation of privacy regarding other party on phone


Katz Modified Rule

(1) Actual Subj Expectation of Privacy (all criminals say they have subj exp)

(2) Reasonable Justifiable Objective Expectation of Privacy

(1) Empirical

Rule: No reasonable expectation of privacy in TRASH

Is Search

Bond (2000)

*Squeeze luggage on Bus

*Tactile search triggers (#2 INTRUSIVENESS)

Rule: Touching an item in an “exploratory manner” = Search

Kyllo v US (2001)

*Thermal imaging

Rule: Sense enhancing equipment = search unless technology in general use (binoculars etc.)

Emp – no one expecting


1. Value of home the highest

2. Intrusive b/c sense enhancement – couldn’t do w/o

3. Very costly to guard against

4. Law enforcement – easily abused.

Western Alfalfa Corp

Rule: Visual observation of smoke from “open fields” not search or seizure.

Rakas v Illinois

Rule: AUTO PASSENGER no legitimate privacy interest in unlocked glove box or under front seat.

Hudson v Palmer

Rule: PRISONER has no legitimate privacy expectation in CELL.

New York v Class:Rule: AUTO OWNER has no legitimate privacy interest in VEHICLE IDENTIFICATION NUMBER