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Criminal Procedure
University of Oklahoma College of Law
Thai, Joseph


Due Process; Exclusionary Rule

Ch. 1 – Bill of Rights

Ch. 2 – Rochin (1950s)

Cops forced open bedroom door, took petitioner to hospital and ordered doctors to give him emetic solution so he’d throw up morphine pills.
Held: This conduct shocks the conscience because the evidence was obtained by physical coercion (“coerced confession”).
Rule: 14th Am is all we got in 1950s to govern due process of law at the state level. Just a general due process standard.

Didn’t use 4th Am because didn’t want to regulate the states too much.
Today, we don’t care about the DP “shocks the conscience” rule from Rochin in search and seizure cases where the evidence is excluded under a more specific rule. You will rarely succeed on a Rochin DP claim.
However, confessions can still be regulated by the Due Process rule.


Irvine—wiretapping was not shocking to the conscience because no coercion, violence, or brutality to the person.

Court limited DP violations to physical brutality against a person. Things like wiretapping do not shock the conscience.

Breithaurt—drew blood; again, not shocking because drawing blood “is not brutal in any way.”
Weeks—added exclusionary doctrine to 4th Am in federal cases
Wolf v. Colorado—Held that the exclusionary doctrine is just a judicially created suggestion not fundamental to a free society, so states don’t have to apply it; “. . .in a state court for a state crime, the 14th Am. Does not forbid the admission of evidence obtained by an unreasonable search and seizure.”

Murphy, dissenting: “Only by exclusion can we impress upon the zealous protector that violation of the Constitution will do him no good.”

Ch. 6 – Mapp

Homeowner refused to admit officers so officers forced the door open and flashed a piece of paper to homeowner as if it was the search warrant. They handcuffed her, then searched all of her things and found obscene materials not related to their original search in conncection with a recent bombing.
Held: Wolf is wrong.
Rule: The exclusionary doctrine is an essential part of both the 4th and 14th amendments and thus applies to not only federal prosecutions but state prosecutions as well.

History; “Search”

Ch. 52 – Stanford

Texas law enforcement showed up to petitioner’s home to search under authority of a warrant issued by the magistrate. The warrant was issued for the purpose of “searching for and seizing any books, records, pamphlets, cards, receipts, lists. . .” The search took five hours and they seized 2,000 things.
Held: A warrant of this kind (general warrant) is forbidden by the 4th Am.
Rule: A warrant should particularly describe the things to be seized.

Ch. 9 – Olmstead

Olmstead and others were discovered in their misdeeds by federal prohibition officers who intercepted the conspirators’ messages via wiretapping.
Held: (Trespass-based.) The 4th Am does not prohibit wiretapping. “There was no searching. There was no seizure. There was no entry.”
Brandeis, dissenting: (Liberty-based.) Telephones and wiretapping are objects the Framers could not have dreamed. Mail communication is protected, so why isn’t a telephone conversation? We have a right to be left alone.

Ch. 10 – Katz

Evidence against petitioner of petitioner’s telephone conversations was obtained by the FBI by attaching electronic listening device to outside of public telephone booth.
Held: “What he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
Rule: Trespass-based doctrine (Olmstead) is no longer controlling. 4th Am protects people, not places. “What he sought to exclude when he entered the booth was not the intruding eye. It was the uninvited ear.

The Test (New Framework):

Did person exhibit a subjective expectation of privacy that is
one that society finds reasonable?

If yes to both of these questions, then there IS a search and a warrant IS needed.

Third-Party Cases

Ch. 12 – Miller

Held: 4th Am does not protect you from disclosing private info to a rat. Depositor takes the risk in revealing into to 3P bank that this info will be revealed to the gov’t.
Rule: No 4th Am question because no intrusions into any area in which respondent had a protected 4th Am interest.
Miller Test:

1) Voluntarily Conveyed,
2) Assumed the Risk

Ch. 13 – Smith

Lady was robbed by a guy driving a 1975 Monte Carlo. Police used pen register after finding out who guy was by tracing license plate. Smith argued that pen register was a violation of his 4th Am rights.
Held: No violation because law enforcement was only looking at the info available to third party phone companies, not the content of the calls.
1) Using Katz Test:

Court says Smith DID exhibit subjective expectation of privacy, but
This expectation is not o

ave greater expectation of privacy. If you’re a terrorist, you have less expectation of privacy.

Look at duration, quality of info, and severity of crime.

Norms Analysis: Don’t want people tracking us for long periods of time.
Risk Analysis: The longer term, the less risk that someone is tracking you.

Ch. 31 – Jardines

Dog sniff on the perimeter of Jardines’s home.
Held: Trespass is the baseline, which would make this a search. However, applying the Katz analysis, this is also a search because it violates a person’s reasonable expectation of privacy in the curtilage of the home (goes beyond normal expectation of a visitor at the front door who knocks then goes away).
Alito’s Dissent: Old-school approach. Says there is no reasonable expectation of privacy because people are always walking by homes with dogs that can smell stuff coming from your home.

Denies suppression of the evidence in applying the risk-based version of Katz: Did you leave roof panels open? Did you perfect your privacy or did you expose stuff to the world, including smells?

On exam suppression question, you’ll want to argue 1) trespass majority opinion, 2) norms-based Katz approach, and 3) risk-based Katz approach

Search”; “Seizure”

Seizure of Property: Baseline is Jacobsen—Meaningful interference w/ individual’s interest

Ch. 34 – Mendenhall (Seizure of People)

Two cops at airport approached Mendenhall, asked her questions and whether she was willing to come to their office. She went to office then consented to a body search, which revealed heroin.
Held: A person has been seized within the meaning of the 4th Am if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
Takeaway: The more circumstances required, the less regulation on police. If you say there’s a seizure just because the police said, “Hi,” then the police are being highly regulated.