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

Criminal Procedure
Nowlin Fall 2004

I) INTRODUCTION (OR, USELESS POLICY BULLSHIT)
A) Dershowitz handout: 13 rules (basically: everybody lies, everyone knows and doesn’t care, no one cares about justice, anyone will say or do anything to win…just use the word “Dershowitz” on the exam in a cynical manner and you’ll get a gold star)
B) Herbert Packer’s models of the criminal process
1) Crime Control
(a) central value to be served by criminal process: the efficient, expeditious and reliable screening and disposition of persons suspected of crime
(b) administrative and managerial
(c) analogous to an assembly line
2) Due Process
(a) central value to be served by criminal process: the maintenance of the dignity and autonomy of the individual suspected of crime
(b) adversarial and judicial
(c) analogous to an obstacle course
3) Real-world criminal process
(a) tends to follow the C/C model more than the D/P model
(b) the officially prescribed norms for the criminal process, as laid down by the S. Ct., are rapidly providing a view that looks more and more like D/P
(i) “judicializing” each stage of the criminal process
(ii) enhancing the capacity of the accused to challenge the operation of the process
(iii) equalizing the capacity of all persons to avail themselves of the opportunity for challenge so created
C) The Constitution & The Declaration of Independence
1) Lincoln (and Nowlin) believe(d) that the purpose of the Constitution was to enshrine and preserve the political principles articulated in the Declaration
2) Nowlin says the government both protects and potentially violates the rights of citizens
(a) the C/C model tends to view the government as protecting rights
(b) the D/P model tends to view the gov’t as potentially violating rights
D) Judicial Restraint v. Judicial Activism
1) Judicial activists
(a) are non-deferential to democratic decision makers
(b) are not required to ground their decisions firmly in traditional legal materials
(c) exercise a substantial amt of political discretion in determining the meaning of constitutional decisions
(d) accept, and even celebrate, judicial policy-making in areas of political importance and controversy
2) Passivists
(a) are deferential to democratic decision makers
(b) are required to ground their decisions firmly in traditional legal materials
(c) strive to minimize their political discretion
(d) reject expansive judicial policy-making in areas of political importance and controversy
E) Courts create the code of criminal procedure. Problems:
1) federalism issues (of concern to passivists)
2) separation of powers: Court’s job is to interpret Constitution, not making statutory law
3) Court passive; must wait for cases to be presented
4) Court has packed docket
5) Court’s fact-finding powers are limited
6) Code needs to be coherent, comprehensive and consistent. Problems:
(a) changing personnel
(b) stare decisis
7) Courts need to deal with implementation of codes. Problems:
(a) reality: state courts following crime control model conflict w/ S. Ct.’s decisions in many cases, but not much S. Ct can do about it
F) Incorporation
1) Duncan v. Louisiana (1968)
(a) Duncan convicted of simple battery (up to 2 yrs and $300)
(b) Does fed’l (6th Amd’t) right to trial by jury apply in LA?
(c) Duncan says yes b/c 14th Amd’t DPC begins “No state…”, and the B of R applies to states thru 14th Amd’t
(d) Majority agrees with incorporation arg’t; holds right to trial by jury for serious criminal offenses applies to states
(e) Harlan’s dissent: Harlan fears that if the same tough rules that restrict the feds were applied to states, it would slow down the state system of justice and crime-fighting and the S. Ct would end up watering the rules down to expedite the state criminal systems (in fact, this was what ended up happening in many cases)
(f) Kinds of incorporation
(i) Majority uses “selective incorporation”
* some provisions incorporated
* test is fund’l fairness
* this is a compromise btwn total and pseudo incorporation
(ii) Black (in concurrence) argues for total incorp’n: full B of R incorp’d
(iii) Harlan (in dissent) argues for psuedo-incorporation (AKA Fund’l Fairness): if something is essential to our ordered concept of liberty then, it will be mimicked in the state constitution; no actual incorporation.
2) All provisions we will study have been incorporated
3) States have primary responsibility for crime fighting, so it is safer to put major restrictions on fed’l gov’t than on states
4) Incorporation moves more of those major restrictions to the states
5) S. Ct has discretion over the nature of those restrictions
G) Major Constitutional provisions for this course
1) 4th Amd’t:
(a) The right of ppl to be secure in their persons, houses, papers and effects, against unr’ble searches and seizures, shall not be violated, and
(b) 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.
2) 5th Amd’t:
(a) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger;
(b) nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;
(c) nor shall be compelled in any criminal case to be a witness against himself,
(d) nor be deprived of life, liberty or ppty w/o due process of law;
(e) nor shall private ppty be taken for public use, w/o just compensation.
3) 6th Amd’t
(a) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,
(b) and to be informed of the nature and cause of the accusation;
(c) to be confronted with the witnesses against him;
(d) to have compulsory process for obtaining witnesses in his favor,
(e) and to have the assistance of counsel for his defense.
4) 14th Amd’t
(a) § 1: All persons born or naturalized in the U.S. and subject to the jurisdiction thereof, are citizens of the U.S. and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S; nor shall any state deprive any person of life, liberty or ppty, w/o due process of law; nor deny to any person w/in its jurisdiction the equal protection of the laws.
(b) § 5: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
II) 4TH AMD’T THRESHOLD: HAS THERE BEEN A 4TH AMD’T SEARCH?
A) The Rise and Fall of Boyd: What Constitutes a 4th Amd’t Search?
1) Boyd v. U.S. (1886)
(a) Act of 1874: fed’l prosecutors can issue notice to compel Δ to produce evidence to be used against him/her
(b) Boyd says his compulsion to produce an invoice was unr’ble under 4th Amd’t
(c) Holding:
(i) Compulsory production/seizure is equivalent to the 4th Amd’t search b/c the gov’t would search for the documents if they were not timely produced.
(ii) The search in this case was unr’ble. Reasoning:
* self-incrimination
– intimate relationship btwn 4th and 5th Amd’ts
– almost every case that violates the 4th violates the 5th
* SDP
– Ct says the 4th & 5th deal w/ ppty rights; therefore a search is unr’ble if constitutes trespass on Δ’s ppty rights
– the gov’t can only search stuff you don’t have ppty rights in
a. at the time of Boyd, the categories of stuff you could search were: fruits of crime, instrumentalities of crime, or contraband
b. gov’t not allowed to search for “mere evidence of crime”
(d) Boyd analysis (for policy question purposes):
(i) Does the D have a ppty right in the searched area or searched-for object?
(ii) If yes, did the police trespass on these rights? (e.g. physical invasion)
* If yes, 4th Amd’t violated
* If no, is it mere evidence?
2) Schmerber v. California (1966; Brennan)
(a) Schmerber has a wreck, looks intoxicated to the officer. At the hospital, the cop has the nurse take a blood sample over Schmerber’s objection, cop arrests for DUI and blood is used as evidence for conviction
(b) New 4th Amd’t analysis
(i) R’bleness in Clause 1 of 4th Amd’t is not about ppty rights; it refers to Clause 2
(ii) Clause 2 addresses warrant and probable cause (you need a warrant OR a major reason not to have one)
(iii) To satisfy r’bleness requirement of 4th Amd’t, then:
* the search must be conducted in a “r’ble fashion under the circumstances”
* there must be cause to suspect probable criminal wrongdoing
(c) New 5th Amd’t rule: 5th Amd’t only protects testimonial communications, not physical evidence
(d) The Ct holds that the blood test was a search but was not unr’ble b/c exigency excuse, officer’s actions meet r’bleness test
(e) Effect on Boyd:
(i) 5th not about all evidence, only testimonial communication
(ii) 4th not about ppty rights anymore
(iii) “mere evidence” rule dead (although not mentioned)
3) Warden, Maryland Penitentiary v. Hayden (1967; Brennan)
(a) Cops seized Hayden’s clothes that he wore during commission of the crime
(b) Ct says:
(i) principal object of 4th Amd’t is not protection of ppty rights, it is protection of privacy rights
(ii) must recognize interest in privacy even where there is no ppty interest
(c) expressly gets rid of mere evidence rule: 4th Amd’t can secure the same protection of privacy whether the search is for mere evidence or for fruits, etc.
4) Katz v. U.S. (1967; Stewart)
(a) FBI agents placed electronic eavesdropping equipment on the outside of a public phone booth from which D, a bookmaker, conducted his business.
(b) Answers question: What is a search, for 4th Amd’t purposes? A 4th Amd’t search or seizure takes place only when a person’s r’ble expectation of privacy has been violated (from CT)
(c) predecessor: Olmstead (1928): nothing counts as a 4th Amd’t “search” if there is no physical invasion
(d) Holding:
(i) electronic eavesdropping is NOT permissible under the 4th Amd’t b/c D had a r’ble expectation of privacy
(ii) the 4th Amd’t protects ppl, not areas/places
(e) Harlan’s concurrence: (more authoritative than m

(1978): automobile passenger has no legitimate privacy interest in unlocked glove compartment or area under front seat
7) U.S. v. Place (1983)
(a) dog sniff of luggage located in a public place is not a search
(b) fails objective: social value – high; intrusiveness/guarding – low
8) Hudson v. Palmer (1984)
(a) prisoner has no legitimate privacy expectation in prison cell
(b) 4th Amd’t not applicable w/in confines of prison cell
9) New York v. Class(1986): auto owner has no legitimate privacy interest in vehicle identification number
10) California v. Greenwood(1988): 4th Amd’t does not prohibit warrantless seizure and search of garbage placed in opaque containers and left for collection on curb in front of home
11) Kyllo v. U.S. (2001)
(a) cops used a thermal imaging device aimed at D’s home from a public street to detect relative amounts of heat w/in the home; garage much hotter so D probably using heat lamps to grow marijuana there
(b) Holding: constitutes a 4th Amd’t search b/c observation could not be made by the naked eye in a place legal for cops to be.
(i) the information could not otherwise have been obtained w/o physical intrusion into a constitutionally protected area
(ii) the technology in question is not in gen’l public use
12) U.S. v. Jacobsen (1984)
(a) Fed Ex employees opened D’s package, re-sealed it, and told cops they suspected drugs. A gov’t agent re-opened the bag and found a white substance; he ran a chemical “field test” to determine whether it was cocaine (it was). Search?
(b) Fed Ex ppl opening not a 4th Amd’t search: they are private parties; 4th Amd’t requires state action
(i) all gov’t employees can possibly violate 4th Amd’t
(ii) a private person is acting as an agent of the state can violate 4th Amd’t
(iii) test to determine whether a private party is acting as a state agent (Skinner) is a totality of the circumstances test. Ask: did the state
* authorize?
* encourage?
* participate?
(c) Agent’s re-opening not a search
(i) didn’t exceed the scope of the private search
(ii) didn’t enable agent to learn anything that had not previously been learned during the private search
(d) Field test to determine whether cocaine not a violation
(i) could disclose only one fact previously unknown to agent
(ii) that disclosure could not compromise any legit interest in privacy b/c
* the fact that something isn’t cocaine isn’t of special interest
* the fact that something is cocaine means it is not something in which D could have a legitimate privacy interest.
(e) basic rule from Jacobsen and Place: a gov’t action does not threaten protected privacy interests if the gov’t is almost certain to learn nothing at all, nothing of significance, or nothing “legitimate.”
III) 4TH AMD’T THRESHOLD: HAS THERE BEEN A 4TH AMD’T SEIZURE?
A) Seizure of Ppty
1) Test: Ppty has been seized for 4th Amd’t purposes where there has been a meaningful interference with a possessory interest (Jacobsen)
2) Destruction of ppty is considered a meaningful interference, but testing a small amt is a de minimus destruction, which is not a meaningful interference
3) Moving an object around (e.g. picking it up to look at the serial no.) is not a meaningful interference
B) Seizure of Persons
1) Test: a 4th Amd’t seizure occurs only when there is a governmental termination of freedom of movement through means intentionally applied (Brower v. County of Inyo)
2) Examples:
(a) handcuffs, arrest, getting in squad car
(b) otherwise indicating you’re not free to leave
(c) using force against you which touches you
3) Questioning
(a) U.S. v. Mendenhall (1980)
(i) lady who fit “drug courier” profile stopped on concourse, ID/ticket names don’t match, cops ask her to go with them to the DEA office in the airport, she does and consents to search
(ii) Rule: a person is seized only when, in view of all the circumstances surrounding the incident, a r’ble person would have believed he was not free to leave
(iii) Holding: not a seizure b/c free to go
(iv) Ct cites examples of circs that might indicate to a r’ble person that he is not free to leave:
* the threatening presence of several officers