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Criminal Procedure
University of Oklahoma College of Law
Kolar, Maria

Criminal Procedure

Kolar Spring 2017

The Criminal Process

Selected Constitutional Provisions

9th Amendment – Powers enumerated in constitution are not the only ones that people have
10th Amendment – The states and the people reserve the power that the constitution doesn’t give to the federal government

This amendment reflects the fact that the starting point of the constitution was concern about federal power

Criminal Justice System Failures

Brown v. Mississippi – Court held that convictions that rested solely on confessions extorted out of prisoners by violence and torture were violations of due process.

First case where we saw that court will look past procedural errors such as no preserving an issue for appeal when a confession is coerced.

Powell v. Alabama – Poor black men are accused of rape by two white women. Judge appoints all members of the bar as their counsel but no one attorney in particular. Court held:

Trial court violated due process when he didn’t let these particular defendants under these circumstances seek counsel.

Also, must have the right to seek counsel individually not as a group

Under the circumstances stated (capital case, poor, young, ignorant, illiterate, feeble) then court must appoint attorney

Criminal Process Norms and Values

Accuracy – Truth. Getting an accurate verdict at trial.
Reliability – System is calculated or expected to produce accuracy
Fairness – Norms of equality
Legitimacy – Has to do with procedures and things in place before trial
Efficiency – Use of time, use of resources
Individual Rights – Rights of the individual v. the government (limited government). Can often be in tension with accuracy

Bill of Rights and Incorporation

Court got rid of possibility of incorporation through privileges and immunities clause in the Slaughter House cases so it is done through Due Process
Court incorporated rights from Bill of right in a piecemeal fashion and incorporated criminal rights later than others. (Although J. Black though whole Bill of Rights should be incorporated)

Right to a grand jury indictment not incorporated (Hurtado v. Cali)
Unanimous court decision not to incorporate right to a 12 person jury (Maxwell v. Dowell)

Duncan v. Louisiana

Court concludes right to trial by jury is incorporated by the 14th amendment. You have a right to a jury trial in state court for crimes that you would get a jury for in federal court.

Although unanimous verdict is not required.

Test for incorporation of right à Whether a right a fundamental right and is essential to a fair trial

J. White Majority – trial by jury right is supported by the value of individual rights
J. Black Concurrence – all rights should be incorporated
J. Fortas Concurrence – the language should be incorporated but not all the federal law interpreting it should

Values federalism
There are fundamental individual rights but states should work out how they are applied

J. Harlan Dissent – Test for incorporation is basic fairness. Due process requires trials to be fundamentally fair. Fairness doesn’t require jury.

Overview of the Fourth Amendment

The 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.

The Reach of the Fourth Amendment

Applies primarily to protect people against the federal government
No 4th amendment protection against searches by private parties

Applies first against federal government then against state governments by incorporation
If private party and federal government search together or federal government instigates private party to search then fourth amendment still protects
Silver Platter Doctrine à if evidence is served to the federal government by a private party they can use it and it doesn’t have to be excluded.

The Birth of the Exclusionary Rule

The 4th Amendment is not as intuitive as the 5th — Excluding evidence found through illegal search or seizure doesn’t have the same reliability issue as excluding coerced testimony which could be false and is not credible

This is why people are not comfortable with the exclusionary rule

Early Case law

Weeks à Exclusionary rule applies against federal government but not state government actors. Deterrence is key, evidence must be excluded or 4th Amendment has no value.
Wolf à Although right 4th amendment right against unreasonable searches and seizures applies to the states through the 14th amendment, Weeks exclusionary rule does not incorporate

Frankfurters test for incorporation à implicit in the concept of ordered liberty, basic to a free society.

Rochin à Where state action violates due process because it shocks the conscience then the evidence must be excluded.

Court makes list of things that shock the conscience to narrow opinion

Illegally breaking in
Struggling to get pill out of his mouth
Forcibly pumping his stomach

Mapp v. Ohio

Holding – All evidence obtained by searches and seizures in violation of the constitution is inadmissible in state court. Constitution requires exclusion.

Court say exclusion us compelled because if 14th amendment right prohibiting illegal searches and seizures is the same as 4th amendment right then 14th amendment compels exclusion.
Majority of states already adopted Weeks exclusion rule anyway
Other remedies have been worthless

Overturned Wolf

Passing the Threshold of the Fourth Amendment

4th Amendment Analysis (and the order it goes in)

Question 1: Has there been a search or seizure?

Katz is the lead case

Katz gives you what is a protected 4th Amendment interest
Katz Test

Actual subjective expectation of privacy
Is it one society is prepared to recognize as reasonable

Doesn’t have to be a trespass to be a search

White case

Have no expectation of privacy when your friend rats you out or a customer is a fake
You can’t trust people
Assumption of risk – you told a third party so you assume the risk

Question 2: If search or seizure, did law enforcement need to get a warrant?

If search or seizure à Strong presumption that warrant is required

Question 3: Was the search in fact unreasonable?
Question 4: What is the remedy if we violate the 4th amendment?


What is a Search

Katz – Police put recording device on the outside of a telephone booth

Harlan’s Concurrence (more important b/c this becomes Katz test)

Question: Is there a 4th Amendment interest at stake?
Two prong test to determine the answer

Whether they have exhibited an actual subjective expectation of privacy
Whether that expectation one that society is prepared to recognize as reasonable

Majority –

Doesn’t have to be a trespass/property violation for there to be a violation of the 4th amendment
What you knowingly expose to the public is not protected
It is a search and seizure when the gov. listens to and records your words à warrant is required

If no warrant then search is presumed unreasonable



Use of sense enhancing technology
To get info about the interior of the home
That you couldn’t get otherwise w/o physical intrusion

When you do this in a constitutionally protected area it is a search at least where technology is not in general public use.

Critique of this is that your rights seem to change w/ the use of technology

Scalia didn’t apply Katz in this case

Test is too broad and too narrow

Too broad – would encompass any sense enhancing tech including drug dogs
Too narrow – b/c it only encompasses tech not in general public use

Beepers/GPS Cases

Knotts – Police put a beeper in a container of chloroform before defendant got it to track it.

Use of beeper = Not a search because car was in public the whole time and no information was revealed about the home

Karo – Defendant bought a bucket something w/ a beeper in it and police monitored his movements on the public road and in two houses

Beeper in the house = search in violation of 4th amendment
How is Karo different than Knotts?

Technology was actually inside the house
Voluntarily transmitting in Knotts b/c on public roads

U.S. v. Jones (unanimous decision) – Gov. had a warrant to track Jones for 10 days via GPS on attached to his car but after it expired they attached another one w/o a warrant and tracked him for a month.

Holding –

Majority – gps tracking w/o a warrant can be used as long as there is no trepass to property
Concurrence – cant be used for a long time for most crimes


Installing GPS device = Illegal search

Monitoring car while on public roads was kind of okay

Scalia says installation is not okay b/c it is trespass and Katz didn’t kill trespass approach it just added on to it. Focus is on trespass of property

Open fields are okay even though there is trespass b/c text doesn’t say open fields.

Sotomayor Concurrence

Says search occurs where gov obtains info by intruding on constitutionally protected area
Agrees w/ katz but thins we should reconsider that individual has no reasonable expec. of privacy in info disclosed to third parties

Questions third party doctrine because of technology and how much info we disclose now w/ the internet

Alito’s Concurrence

Katz approach was fine and should have been used. Scalia approach wouldn’t cover when actual trespass hasn’t been used to track
Test – Relatively short term monitoring of person’s movements on the street accord w/ privacy that society has recognized as reasonable. Longer term use of GPS monitoring in investigations of most offenses impinges on expectation of privacy

Leaves door open for use of GPS in some crimes