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Criminal Procedure
University of Oklahoma College of Law
Henderson, Stephen E.

Criminal Procedure
Fall 2012
1.      Introduction
a.       4th Amendment
                                                               i.      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 searched
b.      5th Amendment
                                                               i.      No person shall be compelled in any criminal case to be a witness against himself
c.       6th Amendment
                                                               i.      The accused shall have the assistance of counsel for his defense
d.      Bill of Rights
                                                               i.      Incorporation – which, if any, apply to the states
1.      Passed for fear of a strong central government, intended for limitations on the federal government only.
2.      Baron v. Baltimore (1833) held Bill of rights only limited federal government.
                                                             ii.      14th Amendment
1.      Privileges and Immunities – doesn’t mean much
2.      Due Process
3.      Equal Protection
                                                           iii.      Duncan v. Louisiana (1968) 6th Amendment right to a criminal jury
1.      White Majority – Selective Incorporation Plus – is the right fundamental?
2.      Black Concurring – Total Incorporation
3.      Held that a jury trial was fundamental, incorporated. Today all of 6th amendment is incorporated.
a.       5th Amendment right to a grand jury indictment in criminal cases is not incorporated
                                                           iv.      Incorporation questions
1.      Whether a right is among those fundamental principles of liberty and justice which lies at the base of all our civil and political institutions
2.      Whether it is basic in our system of jurisprudence
3.      Whether it is a fundamental right, essential to fair trial
                                                             v.      Norms of the Criminal Process
1.      Accuracy
2.      Fairness
3.      Limited Government
4.      Efficiency
2.      The Fourth Amendment: An Overview
a.       Analysis
                                                              i.      Was there Government (Federal or State) Action?
                                                           ii.      Was there a Search or Seizure?
1.     Standing?
                                                         iii.      Was the Search or Seizure Reasonable?
1.     Executed with warrant?
a.      Supported by probable cause and particularity?
b.     If no probable cause or particularity, did the officers rely on the defective warrant in good faith?
c.      Was the warrant properly executed?
2.     Executed without warrant?
a.      Exigent Circumstances?
b.     Search Incident to a Lawful Arrest?
c.      Consent?
d.     Automobile?
e.      Plain View?
f.        Inventory Search?
g.      Special Needs?
h.     Terry Stop and Frisk?
                                                         iv.      If Search or Seizure was Unreasonable, do we exclude evidence?
1.     Exclusionary Rule
2.     Fruit of the Poisonous Tree Doctrine
b.      The Text
                                                               i.      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures
                                                             ii.      No warrants shall issue, but upon probable cause
c.       The Reach of the 4th Amendment
                                                               i.      “People” that are being searched
1.      “People” – not all-inclusive. Refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
2.      4 Categories of Individuals
a.       American citizens of foreign descent – 4th Amendment protection
b.      Foreign citizens lawfully in the U.S. – Part of National Community?
c.       Foreign citizens unlawfully in the U.S. – no cases or laws, an illegal alien likely wont bring attention to themselves if they believe their rights have been violated.
                                                                                                                                       i.      5th Circuit and 8th Circuit have held that foreign citizens unlawfully in U.S. do not have 2nd Amendment rights.
d.      Foreign citizens outside the U.S. – no 4th Amendment protection
e.       American citizen outside the U.S.  – not U.S. action than no, if U.S. action then yes.
                                                             ii.      Persons doing the searching
1.      Has to be government/state action, if not then not a 4th Amendment issue
a.       Police
b.      Private citizens acting at the direction of the police
c.       Public school administrators – only need reasonable grounds to believe in order to search
2.      Does not reach private searches and seizures
d.      The Birth of the Exclusionary Rule
                                                               i.      At common law and for decades after the ratification of the 4th Amendment, the only remedy was a tort suit for trespass.
                                                             ii.      Adams v. New York (1904) 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 trial. Courts didn’t inquire as to the means by which the evidence was obtained.
                                                           iii.      Weeks v. U.S. (1914) Evidence discovered by federal agent should be suppressed when search violates the 4th Amendment.
1.      No incorporation yet. Applied to federal agents not state.
                                                           iv.      Wolf v. Colorado (1949) The 4th Amendment is incorporated to the states, however the exclusionary rule is not. Remedy not an essential ingredient of the right. Most states at the time wouldn’t have suppressed the evidence.
                                                             v.      Rochin v. California (1952) Forced stomach pumping after unlawful entry of home. Violated due process, evidence of morphine was suppressed.
1.      Shocks the Conscience Test
                                                           vi.      Mapp v. Ohio (1961)
1.      Exclusionary rule now applies to the states. Better way to enforce the 4th Amendment. Had the right, but lacked the remedy. Deterrence, now no incentive to disregard the 4th Amendment. Essential part of the right to privacy, Change in state policies trending to apply exclusionary rule between Weeks and Mapp.
e.       Rule – All evidence obtained by searches and seizures in violation of the Constitution are inadmissible.
3.      Passing the Threshold of the Fourth Amendment
a.       What is a Search?
                                                               i.      Analysis
1.     Was there an actual subjective expectation of privacy and a reasonably objective expectation of privacy
a.      Protected Areas
                                                                                                                                      i.      Persons
                                                                                                                                   ii.      Houses – Curtilage
                                                                                                                                 iii.      Papers
                                                                                                                                 iv.      Effects
b.     Unprotected Areas

b.      The area to which extends the intimate activity associated with a home with the sanctity of a man’s home and the privacies of life.
                                                                                                                                       i.      Doesn’t include barns 50 yards away from home
c.       Whether the area in question is so intimately tied to the home itself that it should be placed under the home’s “umbrella” of 4th Amendment protection. 4 Factors
                                                                                                                                       i.      The proximity of the area claimed to be curtilage to the home
                                                                                                                                     ii.      Whether the are a is included within an enclosure surrounding the home
                                                                                                                                   iii.      The nature of the uses to which the area is put
                                                                                                                                   iv.      Steps taken by the resident to protect the area from observation and people passing by
5.      Aerial Surveillance
a.       Police observed marijuana in fenced backyard with aerial surveillance. Held not to be a search. Was visible to the naked eye. If other people can do it, so can police.
b.      4th Amendment protection of the home has never been extended to required officers to shield their eyes when passing by a home on public thoroughfares.
c.       If interference with normal use of curtilage or perhaps below FAA regulations, case may turn differently.
6.      Garbage
a.       No reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal. Could be observed by any member of the public. When a person knowingly exposes something to public it is not subject to 4th Amendment protection.
                                                       viii.      Advanced Technology – Thermal Imaging
1.      Kyllo v. U.S. (2001) thermal imaging used from streets discovered heat lamps used for marijuana growing. Held – constituted a search. More than naked eye surveillance.
a.       Obtaining by sense enhancing technology information regarding the interior of the home that could not otherwise have been obtained without the physical intrusion into a constitutionally protected area constitutes a search when the technology in question is not in general public use.
                                                                                                                                       i.      Otherwise the homeowner would be at the mercy of advancing technology.
b.      Not limited to the intimate details of the home. All details of the home are intimate because the entire area is held safe from the prying government eyes.
2.      Narrowing 3rd Party Doctrine? Perhaps now its now what people could in fact do, but what people actually do.
a.       Police perform routine search on bus, squeezed soft luggage. Held to be a search. Physical manipulation of passengers bag violated the 4th Amendment.