Criminal Procedure Outline

Criminal Procedure

Professor Schwarzchild

Fall 2012

University of San Diego

I. Basics

a. Statutes

i. The question of whether a penalty is criminal or civil is a matter of statutory construction:

1. 2 Step Inquiry:

a. Whether Congress indicated either expressly or impliedly a preference for one label

b. Even if civil, is the statutory scheme so punitive either in purpose or effect as to negate that intention?

i. Trigger retribution or deterrence goals?

2. Examples: Commitment of sexually dangerous persons not criminal

b. Incorporation

i. Bill of Rights and 14th Amendment

1. BOR as originally enacted, only restricted the Fed (Barron)

2. 14th amendment enacted in 1868 and prevents the states from depriving any person of life, liberty or property w/o due process of law.

a. The 14th incorporates most of the bill of rights protections (Duncan: held the 6th’s right to a jury trial applies to states)

3. Selective Incorporation:

a. Only BOR protections not explicitly incorporated:

i. 5th: requirement of grand jury indictment in felony cases

ii. 7th: right to jury trial in civil cases

iii. 8th: limitation on excessive bail.

ii. State law

1. State law can provide for greater protections than the Fed and the USSC can’t review b/c no “fed question” jdx.

2. State court must place explicit reliance on state law in order to avoid SC review; otherwise it will be presumed that the satte court was construing Fed law (Michigan v. Long)

II. The 4th Amendment

a. Generally

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 seized

ii. Aliens must have a “legitimate connection” to the US to exercise

iii. Warrant clause controlling – searches and seizures presumed unreasonable unless carried out by warrant

1. Where exception to warrant, still must be reasonableness

iv. Purpose: Protect privacy, assure Gov’s respect of sanctity of people and what they hold dear

b. Search Warrants

i. Must have a “reasonable expectation of privacy”

ii. Procedure for obtaining:

1. Neutral and detached magistrate

a. Not law enforcement currently

b. Can’t attend search

c. Can’t rubber stamp (not read warrant)

2. PC supported by oath or affirmation

3. Specific place or person

iii. Using Hearsay

1. Gates Totality of the circumstances – More permissive than Spinelli

a. Factors

i. Credibility of information (Spinelli)

ii. Reliability of informant (Spinelli)

iii. Police corroboration

iv. Declaration against interest

b. Leake (tradesman smelled pot, officer didn’t notice anything out of ordinary)

i. Insufficient corroboration

c. Types of informants

i. Paid informants: presumptively unreliable given their dubious character and financial or other arrangement

ii. Anonymous informants: presumptively unreliable because they may be using their anonymity for suspect reasons

iii. Citizen Informant: presumptively RELIABLE because they are presumed to be motivated by concern for society and their own safety.

iv. Accomplices: CONFESSION OF A CO-PARTICIPANT IS ITSELF SUFFICIENT TO ESTABLISH PROBABLE CAUSE—NO CORROBORATION IS REQUIRED

d. What is PC?

i. “Fair Probability” of criminality

ii. Prandy (Nervous drug dealer getting off subway)

1. PC is somewhere b/t “less than evidence which would justify conviction” and “more than bare suspicion”

e. What can be seized?

i. Warden

1. Rejected distinction b/t mere evidence and fruits.

2. A warrant may be issued to search for and seize “all evidence of a crime” (Rule of Civ Pro)

a. Gov has a legit interest in solving the crime

ii. Computers

1. Can search anything b/c of ability to disguise files

f. Executing the Warrant

i. No exclusion for reasonable searches performed unreasonably

ii. Knock and Announce

1. Justification:

a. United States v. Contreras-Ceballos:

i. The requirement protects police and citizens from violence, it protects individual privacy rights, and it protects against needless destruction of private property

2. Not constitutional, but a component of the 4th’s “reasonableness” inquiry

a. Thus, where failing to knock is unreasonable, then unconstitutional

3. Refused admittance

a. Officer can break in where “affirmative” and “inferred” refusal

b. Factors: time of day, size of residence

c. Exceptions: open doors (no manifestation of privacy) and common areas (no expectation of privacy)

4. Emergency Exceptions

a. No requirement if announcement would create

i. Risk of destruction of evidence

ii. Risk of harm

b. “reasonable suspicion” standard (“plausible cause”)

5. No-Knock warrants: Magistrate may issue one if the police can make an advance showing of conditions on a premises that would excuse the knock and announce requirement

a. If police obtain no-knock warrant—D bears burden to show that the entry method wasn’t justified.

b. If police have a general warrant and then do not knock and announce the gov. is required to justify use of the no-knock entry.

6. Destruction of property

a. Governed by reasonableness

i. Not reasonable to tear out the interior walls of a house to search for liquor—Buckley v. Beaulieu. However reasonable to remove a piece of drywall that looked unfinished to search for clothes—United Stataes v. Weinbender

b. Banks:

i. In drug cases, it is reasonable to suspect loss of evidence after 15-20 seconds after announcement

7. No exclusionary rule for knock and announce violations (Hudson)

iii. Time limits and scope

1. Time: Sometimes statutes or rules of court express a time limit (i.e. 10 days). Delay may cause intervening circumstances to negate the previous showing of probable cause.

2. Scope: Generally extends to the entire area in which the object of the search may be found, separate acts of entry or opening may be required.

iv. Distraction/Intimidation: Ok to use