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Criminal Procedure
University of Oklahoma College of Law
Thai, Joseph

Criminal Procedure Thai Spring 2018
Introduction: The Criminal Process
Selected Constitutional Provisions; Criminal Justice System Failures:
Values to Consider in the Criminal Courts and Criminal Procedure:
Accuracy – We want the truth. We want to ‘get the right guy.’
Reliability – The system and procedure is designed to produce accurate results.
Fairness – All people are put on a level playing field. All defendants are treated equally.
Legitimacy – Society accepts court decisions as correct.
Efficiency – Justice delayed is justice denied. Speedy trial.
Individual Rights – Rights of the individual vs. the rights of the government.
Bram v. United States (1898)
Rule: Any Influence on a prisoner while making his confession in a federal trial holds the confession inadmissible. Violation of Due Process.
Compare to Barrington.
Barrington v. Missouri (1907)
Facts: State police used a sweat box to coerce a confession.
Holding: SCOTUS says that this state action does not violate due process.
Brown v. Mississippi (1936)
Facts: Suspects of a murder were hanged and whipped until they confessed to the dictated, specific confession.
Issue: Whether convictions, which rest solely upon confessions shown to have been extorted by officers of the state by brutality and violence violate due process.
Holding: Coerced confessions violate the due process clause of the 14th Amendment.
Powell v. Alabama (1932)
Issue: Whether the Defendants were in substance denied the right of counsel, and if so, whether such denial infringes on the due process clause of the 14th Amendment.
Defendants’ Three Claims on Appeal:
Not given fair and impartial trial.
Denied Right of Counsel.
Tried before a biased jury because blacks were excluded.
(1) The necessity of counsel, in this case, was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was a denial of due process.
(2) In a capital case, when counsel cannot be obtained, and Defendant cannot defend himself, the court must appoint counsel. 
Duncan v. Louisiana (1968)
This case is about the incorporation of the Sixth Amendment (jury trial) to the states, through the 14th Amendment.
Issue: Whether the Sixth Amendment is applied to the states through the 14th Amendment for any criminal case.
Holding: “Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the 14th Amendment guarantees a right of jury trial in all criminal cases which – were they to be tried in a federal court – would come within the 6th Amendment’s guarantee.”
Note: Because of Apodeca v. OR (1972), states do not need to come to a unanimous jury verdict in civil case, like is required in criminal cases.
Overview of the Fourth Amendment
The Text; Reach of the 4th Amendment; Birth of the Exclusionary Rule
The Four Amendment
The language is very broadly written – but it was not initially broadly construed. There are still limits to the Fourth Amendment.
No Constitutional protection from searches by a private citizen.
State officers/State action were not originally included in the protection of the 4th Amendment.
Weeks v. United States (1914)
Issue: Whether it is a violation of the 4th Amendment protection against unreasonable searches and seizures for evidence to be admitted when obtained by a federal agent without a warrant.
Rule: The 4th Amendment compels exclusion of the evidence obtained from the unreasonable search.
Note: The 4th Amendment had not yet been incorporated to the states, so this rule applies only to federal action.
Wolf v. Colorado (1949)
Issue: Whether a conviction by a state court for a state offense denied the “due process of law” required by the 14th Amendment, solely because evidence that was admitted at the trial was obtained under circumstances which would have rendered it inadmissible in a prosecution for a violation of a federal law in a federal court for a violation of the 4th Amendment.
Holding: In a prosecution in a state court for a state crime, the 14th Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.
Test for Incorporation:
Is the right implicit in our concept of ordered liberty? Is it considered a basic right?
SCOTUS holds that there is an incorporation of the 4th Amendment through the 14th, but the remedy is not exclusion, based on state’s response.
The Court admits broad privacy protection, but declines to extend the remedy on federalism grounds.
Mapp v. Ohio (1961)
Issue: Whether evidence obtained by the state through an unreasonable search and seizure is admissible, or whether evidence must be excluded by the 4th Amendment, through the 14th Amendment.
Rule: All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in state court.
Finding Constitutional authority, and the evolving tide of more states embracing the exclusionary rule, the Court extended the same protection that had been afforded to defendants in the federal system.
Passing the Threshold of the Fourth Amendment
Four Questions for 4th Amendment Issues:
Has there been a search or seizure?
If there was a search, was a warrant required?
Was the search, in fact, unreasonable?
What do we do if there was a warrantless unreasonable search?
What is the remedy?
What is a Search?
Katz v. United States (1967)
Major shift on SCOTUS’ view of the 4th Amendment. The 4th Amendment now protects people, not places.
The Petitioner in this case phrases his questions consistent with this old view:
Is a phone booth a protected area? Does there need to be physical penetration into a protected area.
Issue: Does the use of a listening device to record conversations made in a public phone booth violate the individual’s right to privacy under the 4th Amendment?
Holding: There does not need to be a trespass to constitute a search. The government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the phone booth and thus constituted a search and seizure within the meaning of the 4th Amendment.
Harlan Concurrence/Katz Test: Defines when a 4th Amendment search takes place
(1) That a person exhibited an actual (subjective) expectation of privacy; and
(2) That the expectation be one that society is prepared to recognize as reasonable.
United States v. White (1971)
Issue: Whether the 4th Amendment bars from evidence the testimony of governmental agents who related certain conversations which had occurred between the defendants and a governmental agent overheard by monitoring the frequency of a radio transmitter carried by the agent wearing a wire.
Holding: There is no constitutional right to exclude the informer’s unaided testimony and the defendant has no 4th Amendment protection against a more accurate v

the home is unconstitutional.
United States v. Jones (2012) – GPS
Issue: Whether the attachment of a GPS tracking device to an individual’s vehicle, and subsequent use of the device to monitor the vehicle’s movements on public streets, constitutes a search within the meaning of the 4th Amendment.
Holding: The government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search.
Scalia and the Majority: Focus on Trespass
Two parallel tracks of jurisprudence.
Katz plus trespass – Originalism and Katz
Florida v. Jardines (2013) – Drug Dogs
Issue: Whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a search within the meaning of the 4th Amendment.
Holding: This is a search within the meaning of the 4th Amendment because the porch is curtilage which is the home and has the highest protection. There is no customary invitation/license for the police to knock with a dog who is exploring the area to discover incriminating evidence.
This is property based jurisprudence with Katz.
What is a Seizure?
United States v. Karo (1984)
A seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property.
The Substance of the Fourth Amendment
Probable Cause
When there is no probable cause, a search is deemed unreasonable.
Cannot have a warrant without probable cause. Cannot have a search without probable cause.
Destroys ‘reasonableness’.
Spinelli v. United States (1969)
Two Prong Test from Aguilar v. Texas:
(1) Veracity – Do the underlying circumstances demonstrate that the informant is truthful?
(2) Basis of Knowledge/Information – Reliability of the information.
Illinois v. Gates (1983)
Issue: Whether there is probable cause in a scenario when there was an anonymous letter detailing an activity and observation of that described activity. 
Holding: There was probable cause to secure a warrant.
Rule: The two-prong test from Aguilar is cast away for a “totality of the circumstances” test that is less rigid than the old Aguilar test.
SCOTUS argues that there is such a preference for warrants that it is far better to relax the standards for probable cause.
Magistrate judges are given great deference in their review of the totality of the circumstances.
Franks v. Delaware (1978)
To challenge the truthfulness of statements made under oath in an affidavit supporting a warrant, the individual must show intentional false statements or reckless disregard for the truth.
Texas v. Brown (1983)
How Probable is Probable Cause? SCOTUS has stated that the standard does not demand any showing that such a belief is more likely true than false.