Criminal Procedure Outline

Fourth Amendment
Due Process
§ When the state uses its “coercive machinery” to catch and punish criminals, it must treat people with due process.
§ Fifth Amendment requires due process for the federal government.
§ Fourteenth Amendment requires that the states provide due process.
§ Because the definition of due process is so nebulous, the Court sought to protect due process by refining the rights as defined by the Fourth, Fifth, and Sixth Amendments.

Hurtado v. California (p. 80)
§ At issue is whether Hurtado’s conviction for first-degree murder was valid, as he was indicted without a grand jury, but rather presentment of information to a magistrate.
§ One competing paradigm for due process is that it includes only those proceedings that were settled usage at the time of the Magna Charta.
o However, such a limited interpretation would hamstring due process by not allowing it to adapt to changes in the culture.
§ Court finds that because the guarantee of due process is distinct for the requirement of the grand jury, the two rights are not co-extensive.
o If the right to the grand jury were included in due process, then there would no need to list it separately.
§ Matthews does provide some characteristics of due process.
o Must be a general rule of law, and not be a special rule for a particular person or case.
o Must not be vague and indefinite to operate as a practical restraint.
Dissent
§ Does not agree with the majority’s opinion that the enumeration of the right to a grand jury for certain cases moves that right outside of due process.
§ Due process basically incorporates the list of protections guaranteed by the Bill of Rights.

Four Paradigms for Interpreting Due Process
§ Rule of Law
o Laws can not be vague, indefinite, or arbitrary.
§ Bill of Rights
o Basically, Harlan’s Hurtado dissent, that due process incorporates the guarantees in the Bill of Rights
§ Accuracy (and race)
o Due Process should ensure accurate procedures that would prevent conviction of innocent defendants.
o Betts v. Brady: criminal defendants would be entitled to counsel if there were special circumstances which made it impossible for them to represent themselves.
o Brown v. Mississippi: involuntary confessions were inadmissible.
§ Ensuring that confessions were truthful.
§ Fundamental Fairness
o Basically, judicial intuition.
o “very essence of a scheme of ordered liberty”

Incorporation
Duncan v. Louisiana (p. 93)
§ Duncan was convicted of simple battery, a misdemeanor, and sentenced to serve 60 days.
§ Duncan had requested a trial by jury, but Louisiana law provided it only in cases in which capital punishment or imprisonment at hard labor was possible.
§ Louisiana argues that the Fourteenth Amendment does not require a jury trial in any criminal cases, regardless of the severity of the crime.
§ The Court finds that Due Process would impose a jury trial in state courts if the same offense, in a federal court, would have triggered the Sixth Amendment’s guarantee.
§ History of state constitutions supports the importance of the jury trial.
o Prevents oppression by the government.
§ Court disagrees with Louisiana’s argument that because Duncan’s conviction was for sixty days, it was a petty crime that would be outside a state-analogous Sixth Amendment.
o Crime was punishable up to two years.
§ Duncan ushered the use of rules to define due process
o Crimes punishable up to two years require a trial by jury
o A standard would require jury for “serious” crimes.

Residual Due Process Clause
Medina v. California (p. 100)
§ At issue is whether Due Process permits a state to require a defendant to prove incompetence by a preponderance of the evidence.
o DP prohibits the criminal prosecution of a defendant not competent to stand trial.
§ Under CA law, a defendant is incompetent if he is unable to understand the nature of the proceedings or to assist counsel in the conduct of the defense.
o Presumption of competence.
§ Medina argues that due process analysis must comport with the balancing test of Mathews v. Eldridge, a government entitlement case.
o Private interest affected
o Risk of an erroneous deprivation through the procedures used.
o Government’s interest, including the function involved and the fiscal and administrative burdens.
§ Court does not agree that Mathews not be controlling in the context of criminal prosecution.
o Due process here requires that the action not violate “fundamental fairness” especially in areas outside the Bill of Rights
§ The correct analysis is from Patterson v. New York.
o Due Process violated if “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
o The stricter interpretation reflects the belief that the criminal procedure is generally within the ambit of the states.
§ Under Patterson, the Court first looks to historical tradition and finds no support on the proper allocation of the burden of proof in a competency proceedings.
§ Under the “fundamental fairness” prong, the Court finds that the burden only applies in cases where the evidence is equipoise.
o As long as the state provides the competency mechanism, it does not have to assume to the burden of proving the defendant competent.
§ Medina makes several arguments why having to prove incompetence violates DP.
o Pate v. Robinson: defendant whose competence is in doubt can not be deemed to have waived competency hearing
o Requiring defendant to stand trial as a result of an erroneous finding of competency based on the inexact science of psychiatry violates due process.
§ State does not have to select a procedure that benefits the defendant provided that the procedure provides the defendant a reasonable opportunity to demonstrate incompetence.
o The Court has allocated the burden to the state in other contexts.
§ In those contexts, the burden was shifted to deter lawless conduct by the prosecution.
O’Connor, concurrence
§ Believes that the Mathews balancing test is applicable even in criminal prosecution.
§ Agrees that historical context can give insight into the presumption of constitutionality.
§ If burden were placed on the State, defendants would be unlikely to cooperate in the hearings.

Hamdi v. Rumsfeld
§ Can the government to declare a US citizen on US soil an “enemy combatant?”
§ Additionally, which procedures are to be allowed to the defendant to challenge the status?
§ After 9/11, Congress authorized the President to use “all necessary and appropriate force” against those he believed to be responsible for the act. AUMF.
§ Hamdi detained by the Northern Alliance and turned over the US government, who then brought him to the US.
FINISH THIS OFF!!

To Whom Does the Fourth Amendment Apply?

o Not a series of Rules: supreme ct refuses to anounce an overiding theoretic framework!
o The strange but necessary application by supreme court is worked out on a case by case basis, bc the police get guidelines based on these rulings.
Warrant Requirement
–question the point of this? considering all the exceptions
–scholars asks: so much police activiy is concerned with warrantless searches, what

does this mean for 4th amend analysis?
4th operates differently with the circumstances
–does the large landowner/larger house get more protection?
–Is this equal protection under the law?

Terry
Strange interaction of socio-economic policy and legal analysis.
Stop and Frisk exception….Reasonable suspicion.

United States v. Vedugo-Urquidez (p. 409)
§ At issue is whether the Fourth Amendment applies to the search and seizure by US agents of property owned by a non-resident alien and located in a foreign country.
§ District Court granted motion to suppress the evidence gathered from the seizures concluding that the Fourth Amendment applied.
§ Court finds that the Fourth Amendment extends on to “the people.”
o Suggests that the protection only applies to the “class of persons who are part of a national community or have otherwise developed sufficient connection with this country to be considered part of that community.”
o Fifth and Sixth Amendment extends to “person” and the “accused,” which would describe the defendant.
§ Additionally, the Fourth Amendment intended only to domestic searches.
o Not applicable to actions directed against aliens in foreign territories.
o Insular Cases: not every constitutional provision applies to government activity even where the US is sovereign.
§ Only fundamental rights are guaranteed
§ Appeals court approach would have deleterious effects on U.S. global law enforcement.
Kennedy, concurring
§ No weight should be given to the modifier “to the people.”
o Underscores the importance, not restrict the protection.
Stevens, concurring
§ Believes that defendant is lawfully in the US, even though against his will
§ Searches, however, were reasonable.
Brennan’s, dissenting
§ Does not agree with the “to the people” restriction.
§ Defendant’s detainment has created the “sufficient connection” that triggers the Fourth Amendment protection.
§ Mutuality (treating aliens with the same protections) essential to fundamental fairness.
§ Majority misreads Johnson v. Eisentrager as limiting rights to non-citizens.
o Defendant’s rights were limited because they were enemy combatants.

Exclusionary Rule
§ Fourth Amendment plays two key roles in the American legal regime
o Law’s chief source of privacy protection.
o Regulates all government actors, but primarily police officers
§ First part of the Amendment prohibits unreasonable search and seizure.
§ The second part requires that warrants would only be issued upon probable cause.
§ Because the Fourth Amendment does not provide a remedy for violation, the Court created the exclusionary rule.
o Evidence seized improperly can not be used at trial.

Mapp v. Ohio (p. 336)
§ Based on an anonymous tip, Cleveland police sought a bombing suspect at Mapp’s residence.
§ The first time they tried to enter the premise, Mapp refused to allow a search without a warrant.
§ Several hours later, the police simply forced their way into the house.
§ When asked by Mapp for a warrant, the police displayed a piece of paper claiming that it was the warrant.
o At trial, no warrant was produced the prosecution.
§ During the search, the police discovered obscene material and charged Mapp with possession.
§ Ohio argued that even if the search was made without authority or even unreasonably, Supreme Court precedent, Wolf v. Colorado, held that “in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.”
§ Earlier in Weeks v. United States, the Court had held that the Fourth Amendment prohibited federal officers from using unreasonably seized evidence.
§ However, the Wolf court declined to apply Weeks to the states.
o At the time, most of the states did allow the exclusionary rule. ß federalism concerns.
o The Court believed that there could be other remedies to curb prosecutorial abuses.
§ In Mapp, the Court described these remedies as “worthless and futile.”
§ Court justifies its renouncement of Wolf functionally.
o Federal officers who are prohibited from using unlawfully seized evidence could simply hand the evidence over to state officers and vice versa.
o However, the Court had already prohibited this practice.
§ Elkins v. US: State à Federal
§ Rea v. US: Federal à State
§ Additionally, the Court disposed of the criticism that the exclusionary rule was simply a get out of jail free technicality.
o “Nothing can destroy a government more quickly than its failure to observe its own laws….”
o “The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest.”
Black, concurring
§ Fourth Amendment standing alone does not justify the Weeks application to the states; however, the result can be justified by considering the Fourth and Fifth Amendment’s together.
Harlan, dissenting
§ Does not believe that the Exclusionary rule is part of the Fourth Amendment. Therefore, its application to the states can only occur through the Due Process Clause.
§ However, the majority’s justification for the expansion of Due Process is unsound.
o Can’t base the imposition on the number of states that support the rule.
o Some states may later find the rule unwise and repeal it.

Good-Faith Exception
United States v. Leon (p. 683)
§ At issue is whether the exclusionary rule applies to evidence obtained by officers acting in reasonable reliance of a search warrant.
§ Based on information given by a “confidential informant of unproven reliability,” police began surveillance on Leon’s residence and observed individuals leaving with small packages.
§ A facially valid search warrant was issued. The subsequent searches produced large quantities of drugs at the residences.
§ District Court determined that affidavit was insufficient to establish probable cause.
o However, the court made clear that the police officers acted in good faith.
§ The Court notes that exclusionary rule is not a constitutional remedy of 4th Amendment violations but instead is a judicial remedy.
§ To reach its conclusion, the Court engages in a balancing approach.
o Applying the exclusionary rule would allow some guilty defendants to go free.
o Exclusionary rule is designed to deter police misconduct rather than punish the error of judges and magistrates.
o There is no evidence suggesting that judges and magistrates are inclined to ignore or subvert the 4th Amendment or that lawlessness among these actors requires application of the extreme sanction of inclusion.
o Most importantly, there is no evidence applying the exclusionary rule would have a significant deterrent effect on the issuing judge or magistrate.
§ The remedy must alter the behavior of individual law enforcement officers.
§ Determination must be ordered on a case-by-case determination.
§ “Marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.”
§ Suppression warranted where:
o the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except or would have known was false except for his reckless disregard of the truth.
o The magistrate wholly abandoned the judicial role.
o Officers relied on a warrant which they knew was not based on probable cause.
Brennan, dissenting
§ Doesn’t see how the issue can be bifurcated between the seizure of the evidence and the admissibility of it.
§ “By admitting unlawfully seized evidence, the judiciary becomes a part of what is in fact a single governmental action.”
§ By rendering the validity of a constitutional provision on empirical evidence, the Court has “robbed the rule of legitimacy.”

The meaning of Searches
Katz v. United States (p. 349)
§ Katz was convicted for transmitting wagering information over by telephone.
§ At trial, the government was allowed to introduce evidence procured through a wiretap placed on the payphone.
§ Court of Appeals affirmed the conviction because there was no physical evidence into the area occupied by Katz.
§ The first issue for the Court is whether wiretapping is a search.
§ The Court finds that both parties have misconstrued the protection of the Fourth Amendment.
o It does not apply simply to “constitutionally protected places.”
§ For example, publicly exposed evidence in one’s home would not be excluded.
o The correct inquiry is whether the person sought to keep the thing private.
§ Government argued that because the booth was constructed of glass, and therefore visible to outsiders, there would be no expectation of privacy.
o The Court disagrees; one who closes the booth and places a private phone call would “assume that the words he utters . . . will not be broadcast to the world.”
§ Government also argued that wiretap was not a search because there was no physical penetration of the phone booth.
o At one time, the Court had held that property interests controlled the right of the government to search and seize.
§ Fourth Amendment protects people and not simply places.
§ The second issue for the Court was whether the search and seizure in this case was constitutional.
o Government argued that the wiretap did not occur until investigation of Katz’s activities had established a strong probability that he was using the telephone unlawfully.
o Scope and duration of the wiretap was also limited.
§ However, the limitations were imposed by the agents themselves and not a judicial officer.
§ Get the warrant first; then initiate the wiretap.
Harlan, concurring
§ Announces a two-fold requirement for what constitutes a protected place.
o First, the person must have an actual subjective expectation of privacy.
o The expectation must be one that is objectively reasonable.
Black, dissenting
§ Court should not re-write the Amendment to harmonize it with the times.
§ The first part of the Amendment should apply only to tangible things.
§ The second part should apply to things already in existence.
o Conversations haven’t occurred prior to getting the warrant.
§ Therefore, Fourth Amendment shouldn’t apply to eavesdropping.

Notes
§ “Open fields” doctrine.
o Physical trespass not required for a 4th Amendment violation.
o Police entry and search of open fields involves no 4th Amendment intrusion even if the intrusion occurred on privately held property.
Curtilage
o The area surrounding the home where there are reasonable privacy expectations does receive 4th Amendment privacy.
o Inquiry involves four factors.
§ Proximity of the area to the home
§ Whether the area is included within an enclosure surrounding the home.
§ The nature of the uses to which the area is put
§ Steps taken by the resident to protect the area from the observation of passer-bys.

Florida v. Riley (p. 361)
§ At issue is whether surveillance from a helicopter located 400 ft from Riley’s greenhouse constitutes a ‘search’ for which a warrant is required under the Fourth Amendment.
§ Riley’s greenhouse was located on five acres of rural property and about 10-20 feet behind the mobile home.
o Two sides of the house were enclosed; the other sides were not enclosed; the contents of the greenhouse were obscured by surrounding trees, shrubs, and the mobile home.
o While the roof was covered by corrugated paneling, two of the panels were missing exposing 10% of the area.
§ Police were given an anonymous tip that marijuana was being grown in the greenhouse.
§ When the officer discovered that he could not see the contents of the greenhouse from the road, he circled the premises from a helicopter at 400 ft.
o With just the naked eye, the officer discerned what he thought was marijuana.
o From this