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



Themes à Striking the balance between . . .

Safety and Security of Society vs. Individual Rights (Privacy, Dignity, Autonomy)
Judicial Power vs. Executive and Legislative Power
Federal Power vs. State Power
Rules vs. Norms/Standards

Rules: more predictable, clear, stable
Norms: more flexible, contextual, discretionary

How to take Race/Class into Account? (Fairness)


Limited Government

We can read constitutional cases . . .

Broadly: Expanding case to future facts that come within reasoning; providing more guidance to future courts who will confront lots of different issues
Narrowly: Limiting case to its facts; the more careful approach to making law; just deal with the case in front of you


Brown v. Mississippi (1936)


Defendants were being tortured to coerce their confession
State court found that the defendants did not object to their admission and the evidence of the torture had been brought to the jury and the jury had still ruled against them


This is a violation of due process because it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental
The whole trial here was a sham
State is free to regulate unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental

A fundamental right cannot be waived


What if coercing a confession leads to the confession of the location of a victim?

We would get more evidence (fairness)
But we want privacy and to not torture (limited government)

Duncan v. Louisiana (1968)


In federal courts, there was a right to grand jury on a felony charge but not in state cases


Right to jury trial when it would be required if the case was in federal court is one of the fundamental principles of liberty and justice (crimes subject to 6+ months)

J. White’s Reasoning

Selective Incorporation
Historically, we protect a fundamental right for three reasons:

to prevent oppression by the government,
to protect against unfounded charges, and
to protect from unsympathetic judges

J. Black’s Concurrence

Total incorporation
The privileges and immunities clause should incorporate all of the Bill of Rights

J. Fortas’s Concurrence

Selective incorporation but don’t bring the baggage of jury trials, such as unanimous decision or 12 person juries

J. Harlan’s Dissent

If the 14th Amendment meant this, then it would have explicitly said so; fundamental rights cannot be simply defined as ones that are “old” or “praised” or “in the Bill of Rights”
As long as justice prevails, Due Process has been served


No right when the prison sentence is less than six months

Critics of Selective Incorporation say . . .

It takes the focus off justice and turns an appellate process into a checklist (“Did he have an attorney? Yes. Did he have a jury? Yes. Due Process was served.”)
Takes the focus off the innocence of a defendant
Takes the focus off of race and class issues, the whole reason incorporation began in the first place

Lawyers for indigent cases were really bad
Racial issues within the trial in some areas

Encourages judicial activism

Judges pick and choose what rights are fundamental
Some say that non-incorporation would encourage activism because there would be more room to articulate rules to find justice

In Conclusion . . .

Selective Incorporation (without ancilliary rules)

This is the approach the Court has largely settled upon
A right is in or out

Due Process as Fundamental Rights that could include more than Bill of Rights

A possibility but not something the court has done yet

All the most important rights get incorporated in Crim Pro Investigation

4th Am.: Unreasonable Search and Seizure
5th Am.: Right against Self-Incrimination
5th Am.: Right of Due Process as applied to interrogation
6th Am.: Right to Counsel


Basic Framework . . .

Did the government search or seize you?
If so, was it reasonable?

Reasonable if pursuant to a valid warrant
Reasonable if within exception to warrant requirement
Otherwise, reasonable?

If not reasonable, must evidence be excluded?

Text of Fourth Amendment:

“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.”

Scope of the Fourth Amendment

“persons, houses, papers, effects”
Are conversations covered?

Two interpretations

Reasonableness Requirement (around 20 years ago, this became the interpretation used by the Supreme Court)
Reasonable = Warrant (the traditional interpretation)

Requires probable cause
Presumption is that we should always have a warrant for searches




1. Old Approach: Physical Trespass

A search occurs when the government physically occupies private property for the purpose of obtaining information

2. New Approach: Reasonable expectation of privacy:

Subjective expectation: an actual, subjective expectation of privacy
Objective expectation: an expectation that society considers to be reasonable

3. Old/New Approach in Jones: Trespass exists alongside of Katz

Katz v. United States (1967) pp. 87–91

RULE: A search is that which violates your reasonable expectation of privacy

Subjective expectation: you did not hold the thing out to the public but kept it private (you believe that your conversation will be private)
Objective expectation: in a way the society considers this expectation to be reasonable


FBI recorded phone call conversation in telephone booth about defendant gambling (when it was illegal)
They attached a listening devise to the outside of the booth


Is this a search?


Yes, it is a search.
The Fourth Amendment protects people not places (not just penetration of constitutionally protected areas)

Majority’s Reasoning

“The Fourth Amendment protects people, not places” pp. 88

Court scolds the petitioner for incorrectly framing the issues: this is not about the constitutionally protected area, it is about the protection of people
The Fourth Amendment is distinguished from privacy rights

Privacy should be left to the states

Until Katz, the Fourth Amendment used to be all about trespass

Olmstead (wiretapping the wire after it left the house à not a search)
Goldman (wiretapped outside the house à not a search)
Silverman (spike penetrates home à not a search)

Here, no physical trespass occurred, because the device was on the outside of the booth, but the court still finds that a search occurred
The defendant expected to exclude “not the uninvited eye, but the uninvited ear”

He justifiably relied on this expectation

Harlan’s Concurrence (this becomes the test)

Defendant expected privacy when he came into the booth
RULE: A search is that which violates your reasonable expectation of privacy pp. 89

Subjective expectation: you did not hold the thing out to the public but kept it private (you believe that your conversation will be private)
Objective expectation: in a way the society considers this expectation to be reasonable

Our expectations of privacy are often tied to physical place, but that does not limit the Fourth Amendment to physical areas
Interception of conversations reasonably intended to be private could constitute a search and seizure

Black’s Dissent

When the Fourth Amendment was written, eavesdropping occurred; however, the amendment only lists tangible go

pen fields doctrine would say that even if it is someone’s property, an open field is not a search (Hester)

Note, this is pre-Katz

Oliver: even when there were signs and high fences, there is only so much you can do in your fields that is private

Essentially unless there were intimate activities occurring in your fields, they are not protected

Curtilage – the area immediately surrounding and associated with the home; the area which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life, (Boyd, 116)

Dunn factors, pp. 116

Proximity of the area to the home
Whether or not the area is included within the enclosure surrounding the home (versus open area)
Nature of the area’s use
Steps taken to protect from outside observation (signs, fences, etc.)

Hypo: what if the marijuana grower grew marijuana adjacent to his home and put signs up?

This could constitute a search because of the proximity and steps taken to protect it from observation
Still the question of can it be seen by outsiders and the illegitimate nature of its use

Aerial surveillance

RULE: aerial surveillance of activities within the curtilage of a home does not constitute a search California v. Ciraolo, pp. 117
Not a protected search because a person from a commercial airline could see the area

Flight occurs from public, navigable airways
Conducted in a physically nonintrusive manner
Does not reveal intimate activities traditionally connected with the use of home or curtilage
Criticism: commercial airlines fly very high and are not looking for the area



Kyllo v. United States (2001) – thermal imaging device pp. 121–129

RULE: it is a search when 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 pp. 124

The government used a thermal imaging device to detect heat being used to grow marijuana plants


Whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a “search”


Yes, it is a search

Scalia’s Majority Opinion

Privacy of the home is the heart of the Fourth Amendment

Highest protection we have
A man’s home is his castle

The naked eye cannot trespass, pp. 122

This is more than naked-eye surveillance
Reasonable expectation of privacy is altered when there is:

Use of a device that is not in general public use
Information that could not have been obtained without physical intrusion

Scalia creates a compromise

Either trespass (where there is a device not generally used and information that could not have been obtained without physical intrusion) OR a violation of Katz test (reasonable expectation of privacy)

Stevens’ Dissent

This information was available to the general public because the heat escaped the house
Did not accomplish an “unauthorized physical penetration into premises” and did not “obtain information they could not have obtained by observing from outside curtilage of house”

Ex: They could have seen the snow melting