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

Fall 2006, Professor Nowlin

SW—Search Warrant
AW—Arrest Warrant
QOS—Quantum of suspicion
PC—Probable Cause
RS—Reasonable Suspicion
WE—warrant exception
XR—Exclusionary Rule
TC—Totality of the Circumstances
BOK—Basis of Knowledge
SIA—search incident to arrest
SOP—Standard operating procedures
CS—Consent Search

4th Amendment—no unreasonable search & seizure, no warrants w/o PC
5th Amendment (self incrimination clause)
6th Amendment—Right to counsel
14th Amendment—due process clause

Packer: The Courts, Police & the rest of us
Crime control vs. Due process; two ends of the spectrum. The more rights people have, the harder it is to control crime. The more we control crime, the harder it is for people to have those rights.

The Constitution, Declaration, Due Process & Crime Control:
Lincoln’s idea is that the principles & rights of the Dec. of Independence are the “picture” the Constitution is the frame that accents & preserves it.

Government is created to control crime, but once we’ve done that we must protect our rights from government. CC protects natural rights from private violence. DP protects individual rights from government’s tyranny.

Judicial Activism/Restraint:
Restraint: stick close to the text & history, and defer to elected officials. Courts should do less rather than more. Narrow readings of the constitution opposed to broad readings. Majority rule idea is the emphasis.

Activists: Changes in values & facts influence policy decisions. Don’t have to defer to elected officials. Minority rights are emphasized.

1960s—criminal procedure explodes onto the scene based on new interpretations of the 4/5/6/14 amendments. Warren court sat at the time, Warren court was an activist, DP court.

1980s—Berger & Rehnquist courts, much more in the restraint & CC camp. Practically none of the Warren court’s major decisions are overturned. We are given narrowing of the interpretation of the Warren court’s doctrine.

2006—The split will likely be a 5-4 split favoring R/CC.

Limits on SCOTUS creating a criminal procedure code: Why can’t it create a-
Comprehensive code—court is limited to a passive role, it is limited to the cases that are brought before it. The court is too busy to take all criminal procedure cases.

Coherent code—different members of the court, complex fact situations, court’s membership changes, which leads to the court’s policy shifting from one end to the other. This means that cases don’t end up reconciling.

Implementation of the code—(Dershowitz, The Best Defense)
The more rigorously DP procedures are, the likelihood of compliance drops. Courts may set out the rules, but police & prosecutors are resistant to change.

Tips for reading cases:

Learn major case names, and note cases we talk about
Carefully read separate opinions (concurrence, dissents)
Keep policy shifts in mind
Keep in mind Brennan’s Rule of 5—5 justices do whatever they want.


Bill of Rights limits the federal government, not the states. The 14th amendment limits the state governments.
Doctrine of Incorporation: Applying the B/R to the states via 14th Amendment

Duncan vs. LA:

i. Total Incorporation (All B/R are incorporated)
1. Justice Black’s approach: A privilege and immunity of being a US Citizen should be the rights in the B/R. The intent of the P&I clause was to incorporate everything.
ii. Pseudo-Incorporation (fundamental fairness)
1. What rights are fundamental or essential to a fair trial? Rights are “created” and incorporated that may be identical to those in the B/R. None of the B/R are actually incorporated, however.
iii. Selective Incorporation (selected provisions are incorporated)
1. The test for incorporation is fundamental fairness. It is in or out based on its fundamentality to fairness. Is it essential? (Justice White’s approach)
iv. Selective incorporation seems to win because it is sort of a compromise of total/pseudo incorporation. Most B/R amendments have been incorporated today.

All provisions of the 4/5/6 have been incorporated & applied to the states.
Boyd v US: 1886

i. Boyd is compelled to produce evidence that would be used in a civil forfeiture proceeding against him. Boyd raises a 4th & 5th amendment challenge.
1. Court says that if you are being forced to hand over your own property to be used against you, you are being compelled to be a witness against yourself.
2. Equivalent to a search because govt. could have sought a warrant for the papers. The question becomes, “What is an unreasonable search?” The key to is property rights, or a trespass analysis. Is there a physical trespass on the person’s rights? If the government compels you to hand over property viol 5th, when they search and seize your property by trespass, they have violated the 4th amendment.
3. This leaves govt. to search only for fruits of a crime (stolen goods), instrumentalities, or contraband. Search based on government’s property interest.
ii. Bradley says that our amendments written ca. 1791 were to reflect English common law, and that was outlined in the Entick case, which gave us the trespass analysis, protecting the rights of the individual against the government.

Boyd v US dies with three cases

Schmerber vs. CA

i. Was the search (OUIL blood draw) unreasonable?
ii. Brennan—makes distinction between testimonial evidence & physical evidence. The 5th only applies to testimonial evidence.
iii. Brennan—4th amendment only prohibits unreasonable searches & seizures. What is reasonable is based on clause 2 of 4th amendment; did officer have PC, and if he didn’t have a warrant, was there an exigent circumstance present?
iv. Black’s dissent: Doesn’t buy the argument that providing blood isn’t self-incrimination under the 5th amendment.
1. Hubble (2000) Scalia & Thomas in dissent spoke of the self-incrimination clause and said that current cases make a distinction between testimony/physical, but that has little historical support. History supports Boyd & trespass analysis.

fear that what you are saying is being overheard by others. He rejects the risk assumption argument. If the evidence is so important, police need a warrant to search. Harlan would require a warrant to have a CI wear a wire.

Oliver v US: 1984

i. Is it a search when police go into a private field?
1. Not a search under the 4th amendment because open fields fail the objective test for reasonableness.
ii. Marshall’s dissent: all states have trespass laws; this is evidence that society considers open fields to be a private area.
iii. To fall under the open field doctrine, an area need not be “open” or a “field.” Open fields are private property that aren’t close enough to the house to be considered curtilage.
iv. This case allowed police to violate the trespass laws without consequence.

Dunn (1987)

i. Curtilage—basically the yard, and is protected under 4th. It takes the privacy interest of the home.
1. Factors for determining the curtilage:
a. Proximity to home-closer rather than further
b. Use-is it used like a yard?
c. Enclosures (fences/hedges)
d. Exclude-what steps are taken to keep people out?

Ciraolo 1984:

i. Police fly over Ciraolo’s house to see the marijuana growing in the curtilage of the house. (Fixed wing aircraft 1000 feet)
ii. Not a search because it doesn’t invade a reasonable expectation of privacy.
1. Berger’s majority opinion: No REXP, the police are in a lawful vantage point, and the intrusion was minimal. There were no steps taken to guard from aerial inspection.
2. Powell’s dissent:
a. The analysis based on a member of the general public flying over the property is going to be over the house & see the marijuana—there is no empirical risk. The privacy value is high because the area was within the curtilage.
b. If you have to put a roof on the back yard, then you cease to have curtilage.
iii. Riley: Helicopter (FAA regulation 400 ft) The search here didn’t involve any disruption of the use of the property from wind or dust. Even if they had been above 400 ft, but the use was disrupted, this might have been an unreasonable search because of the intrusion.

Bond 2000:

i. Bond is on a bus, USBP agent boards a bus to verify immigration status. On the way out of the bus, he squeezes the luggage feels what he thinks are drugs in Bond’s duffel bag.
ii. Is the squeeze of the bag a search? Yes. There was an invasion of a REXP