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

Criminal Procedure: Investigation Nowlin-Spring 2015


1. Amendment IV (1791)

a. Clause 1: Reasonableness clause- search and seizure

b. Clause 2: Warrant clause

c. Is the reasonableness clause really about the warrant clause?

2. Amendment V (1791)

a. Self-incrimination clause

b. Pre-trial doctrine, as opposed to trial doctrine—Miranda

3. Amendment VI (1791)

a. Right to counsel-mostly a trial doctrine, but we will examine this at the interrogation stage

4. Amendment XIV (1868)

a. Due process clause

b. Equal protection clause


1. Crime control v. Due process

a. Crime control- concerned with getting bad guys off the street. Never lose sight that police, courts are there to deter crime

b. Due process- concerned with protecting liberties; policing the police that individual rights are protected

c. Declaration of Independence- protect life, liberty and the pursuit of happiness

i. Strong reaction against British tyranny and invading people’s property so supports Due Process thought process

ii. But we should also protect citizens against criminals; protect natural rights against violence (Crime Control theory)

iii. Founders had to balance differing values

2. Judicial restraint v. Judicial activism

a. Restraint- judges should be deferential to the judicial process; shouldn’t be making too much policy; if Court strikes down a procedure as unconstitutional, they should have text and history to support their position

i. Most worried about activism’s impact on separation of powers and federalism

b. Activism- judges should be more aggressive in actions with legislatures and should base their decision more on policy

i. Most worried about restraint’s impact on individual rights

c. Conservatives believe in judicial restraint, with emphasis on crime control

d. Liberals believe in judicial activism, with emphasis on due process

3. From the Warren Court to the Roberts Court

a. Warren-late 50s to late 60s

i. Activist, liberal style court

ii. Created modern criminal procedure- not much case law prior to Warren ct.

iii. Created big doctrines that weren’t ever overruled, but subsequent courts found holes in these doctrines. Post-Warren courts narrowed interpretation and created exceptions to the Warren doctrines—Swiss cheese

iv. Subsequent courts: reason for exception is typically reason to not have the rule at all

b. Burger court- Conservative

c. 1980s Rehnquist court- Conservative

d. Today- Roberts Ct.-Conservative

4. Limits on Court’s ability to create rules of criminal procedure that are comprehensive, coherent and subject to implementation

a. Comprehensiveness: Case has to be litigated that addresses specific issue, and court has to have ability and time to hear that case—SCOTUS is super busy.

b. Limit on coherence: complexity of the rules and endless fact patterns; courts changes and justices differ in opinion and philosophy

c. Subject to implementation limit

i. Dershowitz’ rules on first handout

ii. SC has to craft rules recognizing that police or officers of the court might not want to follow them

iii. ex: Miranda created bright line rule that made it harder for police to get around due process violations

iv. SC had a mistrust of trial judges

5. Incorporation controversy

a. Bill of Rights-limits Federal government; first word of first amendment is “Congress”

b. States and local governments are NOT limited by BR as originally written; not incorporated until 1950s, 1960s

c. BR incorporated by reference through Fourteenth Amendment

d. Duncan v. Louisiana (1968)- vehicle to understand incorporation; black teen is charged with simple assault, which is punishable by no more than 2 years, so under LA law, he isn’t entitled to a jury trial. He appealed and SCOTUS ruled that he is under incorporation of the Sixth Amendment.

i. Total incorporation set forth by Justice Black in concurring opinion in Duncan

1. Whole BR applies

2. Never got a majority on SCOTUS

ii. “Pseudo incorporation” or fundamental fairness set forth by Justices Harlan and Frankfurter- dissent in Duncan

1. No provision of BR is actually incorporated, but there are parallel protections that are similar, but potentially different

2. How do we decide what is incorporated? We decide whether it is fundamentally fair throughout history

3. Can have two standards—right to a unanimous 12 person jury might not be applicable to states, but still hold that citizens have the right to jury. In other words, it does not require uniformity among federal and state government.

4. This was majority thought process for a long time

iii. Selective incorporation by Justice White’s majority opinion in Duncan

1. Current majority approach

2. Fundamentality analysis by history

3. Important cases: Mapp v. Ohio (Fourth Amendment), Malloy v. Hogan (Fifth Amendment), Gideon v. Wainwright (Sixth Amendment)

4. Applied with the full rigor of the original amendment

5. This is hybrid of total and pseudo- we totally incorporate the amendment, but we only incorporate the ones that are deemed fundamentally fair

HW: Shift from Boyd on handout, skim cases; read Katz pg. 3-16; pg. 30-31; 466 US 170


1. Shift from Boydà Shmerber, Hayden, Katz

a. Boyd (1886)- D was importing glass and there was a question as to whether he was paying customs fees. Police requested that he produce invoices to prove that he wasn’t paying. If he didn’t hand over papers, then government will treat him as a “quasi-criminal.”

i. 5th amendment self-incrimination clause: he was being compelled to present incriminating evidence against himself, so 5th applies

ii. 4th amendment search: was there a search? Was there a seizure? SCOTUS thought this was the functional equivalent of a search, and would lead to a seizure. Therefore, 4th amendment applies. This was a liberal interpretation of the provision.

iii. 4th amendment unreasonableness clause: Government can’t reasonably search and seize the papers in this case, BUT they CAN reasonably search and seize: stolen goods-fruits of the crime; contraband; required records (ex: government asks D to fill out paperwork, and then asks for it back. This isn’t search bc paperwork belongs to the government); criminal instrumentalities (ex: gun used in crime.) All of this is contrasted with mere evidence, which is not deemed reasonable and would be a violation of 4th amendment.

iv. Court said 5th and 4th amendments have “intimate relationship.” Both amendments, according to English common law (Entick v. Carrington), are really about property rights and trespass. This Court viewed them as the flip side of a coin—if they compelled him to turn over the papers, this results in a search and seizure; and if they search and seize his papers, this results in self-incrimination.

b. Schmerber (

t is Search?”

Open fields doctrine

a. Curtilage is fancy word for yard

b. Open field does NOT have to be open and it does NOT have to be a field. It is real property that people own that is away from the structure. It is the land beyond the curtilage.

c. Oliver (1984)- Police received tip that Defendant was growing marijuana on property. Police went onto property without probable cause and without warrant. They walked past No Trespassing signs and went through a gate. Police found marijuana and used this evidence to convict Defendant.

i. Court applies Katz to determine if there is sufficient expectation of privacy in open field. Ct finds no reasonable expectation of privacy.

1. Subjective- he has no trespassing signs, fence, etc.

2. Objective reasonable expectation

A. Facts-open fields are open to public

B. Social value

C. Intrusiveness

D. Guarding privacy-if he really didn’t want people to find marijuana, he should have grown it inside

E. Police crime control-how valuable is it that police can go on to open field? HIGH

ii. Justice Marshall’s dissent points to trespass laws as reason to show that society values privacy on property.

d. Dunn (1987)- To distinguish open fields from curtilage, look at the following factors:

1. Proximity to house

2. Existence of enclosure (fence?)

3. Use- if it is for business use, more likely to be open field

4. Guarding- fence, hedge, no trespassing sign, dog


e. Ciraolo (1986)- Police received anonymous tip that D was growing weed. They flew over his house and verified that it was marijuana, then got search warrant. D wants everything excluded bc police used the information they got from flight to get warrant. D argues the flight was an unconstitutional search, but Ct disagrees and says THIS IS NOT SEARCH and so police can do whatever and whenever they want.

i. Facts: anybody can fly over the area and see the weed

ii. Values: what you knowingly expose to the public, it isn’t private. Social value in curtilage is high, but this is visual observation from a lawful vantage point. If he wanted it private, he should have put up a roof. It isn’t intrusive, bc they just flew over and anybody could have flown over. If an ordinary citizen can go, then police can go too.

iii. Dissent: empirically, there was no reason to believe that anybody but the police would be flying that low. Curtilage is an extension of the home, so we have high privacy value. How intrusive is it to spy on the curtilage? VERY. Guard- why would you put up a roof over curtilage? Says Katz doesn’t let new technology of wire-tapping erode privacy values, so they shouldn’t let planes do it either. If he would have jumped the fence, it would have been a search, but just bc they flew over, it wasn’t.