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Criminal Procedure: Investigation
University of North Carolina School of Law
Kennedy, Joseph E.

Criminal Procedure
Professor Kennedy
Fall 2012
I.                   The Criminal Process: Failure, Choices, and Legitimacy
a.       Failures
                                                               i.      In a capital case, where the defendant is unable to employ counsel and is incapable of adequately defending himself, the Due Process Clause requires that effective counsel be appointed for him. (Powell v. Alabama)
1.      ISSUE: whether the defendants were denied a right to counsel, and whether this was a violation of DP
2.      Defendants said no DP because
a.       Not given a fair, impartial, and deliberate trial
b.      Denied right of counsel (no consultation or prep) (the whole bar was assigned as counsel, but there was no time (no one person in particular), no opportunity to get counsel of their choice)
c.       Juries with members of defendants’ own race were systematically excluded
3.      Must have effective counsel on both sides so on appeal, you will know what happened below (not possible if there was not a good, competent lawyer on both sides)
4.      2 holdings:
a.       Denying counsel is a violation of 14th DP à must have reasonable time and opportunity to secure counsel
                                                                                                                                       i.      Factors: capital case, monitored by national guard, ignorance & illiteracy, youth, public hostility, away from friends and family
b.      Requires court to appoint someone as counsel in capital cases
                                                                                                                                       i.      Court must also appoint counsel if you cannot afford, or are incapable of making own defense because of ignorance, feebleness, illiteracy, and the like
5.      Prompt disposition is good, but not at expense of defendants being stripped of their right of time to advise with counsel and prepare defense
                                                             ii.      Indigent defendants: all indigent defendants must be assigned counsel in capital cases
                                                           iii.      A confession obtained by inflicting physical pain during interrogation is not admissible against the accused. (Brown v. Mississippi).
1.      Origin story
2.      In 1936, prosecutors could call defendants to testify
a.       No right to a trial by jury
b.      The state could decide what you get
3.      Doctrinal issue: what violates, in state court, the DP clause of the 14th?
a.       4th, 5th, and 6th Amendments were incorporated into the 14th to apply to the states
4.      Courts found that confessions violated DP because defendants were tortured
5.      Only true evidence of guilt was confessions, but nothing affirmative in the record going to innocnce
6.      State said that defendants did NOT have a right against self-incrimination
a.       Didn’t happen in the trial itself (vs. before court)
b.      They objected, but didn’t move to exclude (efficiency norm à don’t want to clog system)
c.       Judge did give torture instruction and made sheriff testify
                                                                                                                                       i.      Goes to weight of evidence and accuracy
7.      What offends DP is that the whole trial becomes a sham/pretense
a.       Does not mean the guys were innocent, just that there was no process
b.      Norms of Criminal Procedure
                                                               i.      Accuracy à no innocent people convicted
                                                             ii.      Fairness à put defendants on even playing field
                                                           iii.      Limited Government Provisions
                                                           iv.      Efficiency
                                                             v.      Norms post-September 11th
c.       Seeking Legitimacy in the Fourteenth Amendment
                                                               i.      Extent to which people are protected from overreaching by agents of the state depends in large measure on extent to which the 14th incorporates the Bill of Rights
                                                             ii.      Values of Federalism
                                                           iii.      Proper role of judiciary in enforcement of constitutional rights
                                                           iv.      Fourteenth Amendment due process guarantees a right of jury trial in all state criminal cases “which, were they to be tried in federal court, would come within the Sixth Amendment’s guarantee.” (Duncan v. Louisiana)
1.      Is right to trial by jury guaranteed by Sixth amendment?
a.       Fundamental principle of liberty and justice?
b.      Basic in our system of jurisprudence?
c.       Fundamental right; essential to fair trial?
2.      Yes, fundamental to American scheme of justice
a.       Prevents oppression by the government
b.      Independent judiciary; further protection against arbitrary action
3.      Selective incorporation – look at whether something is fundamental
4.      Dissent says question should be narrower
a.       Trial be jury is not the only fair way to do it
b.      Something is required by due process if it is the ONLY way to be fair/essential to fairness
d.      Striking the Balance
                                                               i.      Safety and security of society vs. individual rights
                                                             ii.      Judicial power vs. executive and legislative
                                                           iii.      Federal power vs. state power
                                                           iv.      Rules vs. standards
                                                             v.      How to take race/class into account (fairness)
II.                An Overview of the Fourth Amendment
a.       Basic Framework
                                                               i.      Did the government search of seize you? If no, stop.
                                                             ii.      If so, was it reasonable?
1.      Reasonable if pursuant to valid warrant
2.      Reasonable if within exception to warrant requirement
                                                           iii.      If not reasonable, must evidence be excluded? à limits and exceptions to scope of exclusionary rule
                                                           iv.      There can be no unreasonable searches and seizures and no warrants without probable cause
1.      If warrant, must be reasonable
2.      Searches must be reasonable. If you get a warrant, warrant must have certain characteristics.
a.       Some searches do not need a warrant
3.      If no warrant, search is presumptively unreasonable
                                                             v.      Limits only government actions
b.      The exclusionary rule
                                                               i.      Evidence obtained in an unlawful search and seizure by agents of the federal government may not be used against the defendant in a federal prosecution. (Weeks v. United States)
1.      Police, then US marshal, finding papers at house with no warrants
2.      If governments can use fruits of unreasonable searches in court, the 4th is of no value
3.      Exclusionary rule really only protects guilty people
a.       No, exclusionary rule protects integrity of the judicial process
4.      Silver platter doctrine: feds can’t tell stats to conduct an unreasonable search and then give evidence to feds
                                                             ii.      In a prosecution in a state court for a state crime, the 14th does not forbid the admission of evidence obtained by an unreasonable search and seizure (Wolf v. Colorado)
1.      Whether the 4th is incorporated and applies to states
a.       It does apply – implicit in concepts of ordered liberty
b.      Security of one’s privacy against arbitrary intrusion by the police, which is at the core of the 4th
2.      BUT not for courts to condemn as falling below minimal standards assured by the DP clause a state’s reliance upon other methods, which, if consistently enforced, would be equally effective
3.      SO 4th applied under 14th, but states can do what they want
                                                           iii.      In a prosecution in a federal or state court, the 4th Amendment **by application of the 14th** forbids the admission of evidence obtained by an unreasonable search and seizure (Mapp v. Ohio)
1.      Applies exclusionary rule to the states. All evidence obtained by searches & seizures in violation of the Constitution is, by that same authority, inadmissible in state court
2.      To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment
3.      Exclusionary rule is required because the right cannot exist without the remedy
III.             What is a “search”?
a.       If it’s not a search or seizure, 4th does not apply
b.      Even if it is a search, government can still do it if reasonable
                                                               i.      Either with a warrant or if it falls under an exception to the warrant requirement
c.       The Fourth Amendment protects a person from search and seizure if, under the circumstances, he has a justifiable expectation of privacy, regardless of whether an actual physical trespass occurred (Katz v. United States) (Expectation: reasonable, justifiable, legitimate)
                                                               i.      Two-fold test set forth in Harlan’s concurrence:
1.      That a person have exhibited an actual (subjective) expectation of privacy
2.      That the expectation be one that society is prepared to recognize as “reasonable”

ate details were observed
                                                           vi.      Greenwood
1.      No reasonable expectation of privacy in garbage except if it is within curtilage of home
h.      Issue: Use of GPS device to track violate the 4th? Attach GPS tracking device violate the 4th?
                                                               i.      Kyllo v. US
1.      Whether use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home is a search
a.       They use the results to get a warrant to enter the home
2.      Learning information about inside of the home
3.      BUT, no trespass, just observing is not a search
a.       The eye cannot trespass à common law
4.      RESULT: is a search [where the government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant] a.       Not technology generally available to the public (is this too narrow? What about when things become widely available? Then, what’s a search?)
b.      Could reveal private details within a home
c.       Information previously unknowable without physical intrusion
5.      Upholds reasonableness standard from Katz.
6.      DISSENT
a.       All the camera did was passively measure heat emitted from exterior
b.      Not an unauthorized physical penetration into the premises
c.       Only member of the public could notice heat
d.      Thermal imaging is not equal to x-rays
                                                                                                                                       i.      Off the wall vs. through the wall
e.       Sense-enhancing is reasonable
f.        Learning about heat is not a private, intimate thing
V.                  What is a seizure?
a.       The delivery of an electronic tracking device in a container of chemicals to a buyer without knowledge of the device does not violate the 4th (Karo)
                                                               i.      Possessory interests were not meaningfully interfered with by the transfer, so no seizure occurred. At most, a technical trespass.
                                                             ii.      Dissent: was a seizure; interferes with possessory right to exclude
b.       Jones majority: attaching the GPS was enough – violation of his effect à notion of trespass.
VI.               Probable Cause
a.       Exists where the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested
b.      PC for warranted search less than PC for warrantless search
c.       Spinelli/Aguilar: If an affidavit to obtain a search warrant is based upon an informer’s tip, the affidavit must state why the informer is “reliable” and the “underlying circumstances” from which the informer drew his conclusions, so as to enable an independent magistrate to conclude that the informer’s information provides PC
                                                               i.      Two-prong test
1.      Validity of information/basis of knowledge
2.      Informant’s credibility/reliability
                                                             ii.      In the absence of a statement detailing how the tip was gathered, a search warrant may still issue if
1.      The tip describes the accused’s criminal activity in such detail that a magistrate may conclude that it is reliable (Draper)
2.      There is sufficient independent corroboration of criminal activity in the affidavit so that a magistrate may conclude that there is probable cause that a crime is being committed.
                                                           iii.      Anything anonymous fails under Aguilar/Spinelli