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Criminal Procedure: Investigation
University of North Carolina School of Law
Myers, Richard E.

Criminal Procedure Investigation—Myers Spring 2016
 
Norms of the Criminal Justice System
Liberty/Security
Federalism
Debate go back and forth in the cases; More interested in issues of remedy; Court choosing to do what it can do institutionally
Guilty Criminal Defendants are not strong constituents
Accuracy
Fairness
Good example is 5th Amendment (accuracy v. fairness)
Limited Government (Can they do that? I don’t want that)
Efficiency
Administrative system of criminal justice that wears an adversarial hat
90% of stuff is resolved well short of trial, we cannot afford the level of criminal justice system we have if it went up to 20%
Type 1/Type 2 errors
Type 1: false positive
Type 2: false negative
Trade those off? At what level of trade
10 times better that a guilty person go free than an innocent person held guilty?
Substance-Procedure feedback loop: “We’ve made it illegal-ish,” we don’t want full enforcement of that law if it’s just in our home
How we feel about the substance of the law (child pornography v. recreational drug use)
Incorporation
At the time of ratification, the Bill of Rights only applied to the federal government, not the states
Barron v. Baltimore (1833)-BOR does not restrain the states
Brown v. Mississippi (1936)
Whether convictions, which rest solely on confessions shown to have been extorted by officers of the State by brutality and violence, are consistent with the due process of law required by the 14th Amendment.
Went medieval on them; While states are free to regulate the procedure of their courts in accordance with their own conceptions of policy, such freedom is limited by the requirements of due process of law
Through the Due Process Clause of the 14th amendment (nor shall any State deprive any person of life, liberty, or property, without due process of law) the protections of the 4th, 5th, and 6th amendments are applied to the states.
Not ALL but most of the protections of the 4th, 5th, and 6th amendments apply against the states.
Incorporation Process: Text of the 14th Amendment; What is the relationship between the due process clause and the BOR; How does the language fit against the BOR
Duncan v. Louisiana (1968)-incorporated the Sixth Amendment right to a jury trial and applied it to the states
What makes trial by jury fundamental? Should it apply to the states?
Court tracks the history of trial by jury, issue in the founding of the nation
Justices frame their arguments in history, notion of fundamental rights, textualism, originalism, original intent and original public meaning
 
The Fourth Amendment—Introduction
Text
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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
At the time of framing, concerned about General Warrants (“I am the King’s officer, can search anywhere and arrest anyone to keep the king’s peace”)
NO REMEDIES CLAUSE
We’re not told what the reaction should be
Meaning
Basic Framework
Did a Search or Seizure occur?
If so, was it reasonable?
Reasonable if pursuant to a valid warrant
Reasonable if it falls within one of the exceptions to the warrant requirement
If not reasonable, must exclusion of the evidence occur?
There are two distinct clauses—the reasonableness clause and the warrant clause.
Two ways to read the amendment
Searches and Seizures must only be reasonable, not warranted (but warranted searches are one type of reasonable search).
Reasonable Searches and Seizures must be supported by Warrants (unless court finds an exception)
The reasonableness clause prevents unreasonable searches and seizures
There is a debate about whether or not the reasonableness clause requires a warrant in order for a search to be reasonable, or whether a search can be reasonable absent a warrant, with a warrant merely being one of several indicia of reasonableness.
IN ORDER TO BE PRESUMPTIVELY REASONABLE YOU NEED A WARRANT UNLESS THE SITUATION MEETS ONE OF THE RECOGNIZED EXCEPTIONS TO THE WARRANT CLAUSE.
Our notion of what is reasonable is shaped by what police already get to do
It always seems reasonable to let them go one step further, unless they were already at the outer limits of a general rule (warrant requirement)
Scope of the Amendment
The 4A applies to “the people”.  This clearly includes U.S. citizens, but what about others?  The Supreme Court has rarely spoken on this.
Verdugo-Urquidez (1990)—the Court held that the 4A protections do not apply to searches by U.S. agents of property owned by a non-resident alien and located in a foreign country.
Test: have you established sufficient ties to the United States, “member of the community”
The 4A does not restrict searches by private parties unless the government instigates or participates in the search.
Burdeau (1921)- 4th amendment only limits government action, does not reach private searches and seizures
On the other hand, the Amendment is implicated if there is police instigation or participation, such as when an officer requests a landlord to search through her tenant’s belongings or assists in the process
Must be “state action,” not private parties
Remedy
Initially, the Court stated that “the weight of authority” was that testimony clearly competent as tending to establish the guilt of the accused of the offense charged may be retained by the government and used at a defendant’s trial-Adams v. NY (1904)
“[T]he courts do not stop to inquire as to the means by which the evidence was obtained”
SCOTUS adopted the 4th Amendment Exclusionary Rule in Weeks v. United States (1914)
In Federal trials, the 4th amendment bars the use of evidence unconstitutionally seized by federal law enforcement officials
Without such a rule, 4th amendment would be reduced to mere “form of words”
Since Weeks had only applied exclusionary rule to evidence seized under “federal authority,” appeared that local police could conduct unreasonable searches and deliver evidence to federal prosecutors on a silver platter
However, Byars vs. United States (1927) ruled that silver platter doctrine didn’t apply to unlawfully obtained evidence from a search that was “in substance and effect” a joint state-federal venture
State Police were accompanied by a federal agent
Gambino v. United States (1927)-state officers acting alone conducting search on behalf of federal government, court also applied exclusionary rule to state officers’ actions
Court in weeks had not considered whet

nt’s words and the evidence so gathered is later offered in evidence
On Lee v. United States (1952)
Court rejected claims of 4th amendment violation because informer had not trespassed when he entered the defendant’s premises and conversed with him
Smith v. MD (1979)-installation and use of a pen register by telephone co., at behest of government, to record telephone numbers dialed from a private residence is not a “search” within 4th amendment.
Objectively unreasonable expectation of privacy
United States v. Miller (1976)- bank customer has no legitimate expectation of privacy in financial information that he “voluntarily conveys” to bank employees in the ordinary course of business.
Not a search if Bank gives it to Gov’t
Dog Sniff
United States v. Place (1983)-DEA agents seized luggage belonging to P, a deplaning airline passenger whom they suspected of drug possession and subjected it to a “sniff test” by dog trained to discover narcotics, reacting positively to one piece of luggage.
Not a search; information was obtained in a comparatively nonintrusive manner and information revealed was limited (only contraband)
Illinois v. Caballes (2005)-also upheld the use of a narcotics-trained dog to walk around an automobile, lawfully stopped on the highway for speeding, to sniff for drugs
No legitimate privacy interest in possessing contraband
Rodriguez-Can’t extend a traffic stop for the purpose of running a drug dog, can’t hold you longer for purpose of running the drug dog
Jardines-Bringing the dog was a trespass, can’t have dog sniff at the door of house (trespass)
Open Fields Doctrine—police entry of an open field does not implicate the 4A (Hester v. United States (1924))
An open field includes any unoccupied or undeveloped area outside of the curtilage; it need neither be “open” nor a “field” as those terms are used in common speech. (Oliver v. United States (1984)).
An asserted expectation of privacy in open fields is not an expectation that “society recognizes as reasonable”
Curtilage—
Definition: area which extends the intimate activities associated with the “sanctity of a man’s home and the privacies of life”-Boyd
determined using a four factor “test” (United States v. Dunn) (1987); ultimately these factors are just analytical tools to determine whether the area on question is so intimately tied to the home itself that it should be placed under the umbrella of fourth amendment protection.
The proximity of the area to the home
Whether the area is included in an enclosure surrounding the home
The nature of the use to which the area is put
The steps taken by the resident to protect the area from observation by people passing by