Crim Pro Outline
Sunday, October 14, 2012
8:10 PM
I. Policy Themes & Norms/Rules
A. Policy Themes that go into Judicial Decision Making
1. Free Democracy: balance between security and individual rights
2. Federalism: power sharing between federal/state gov’ts
3. Racism/Social Distinctions: how social context plays into distinction (war on drugs)
1. Economic class, gender, education, guilty v. innocent
B. Norms vs. Rules
1. What is the rule I can take from this case
1. i.e.: police have to have a warrant to conduct a search
2. How narrowly does the rule apply?
1. Police have to have a warrant to conduct a search in a home
3. Is the court really instituting a norm that will guide its reasoning?
1. Homes are the most private spaces and should be strongly protected form gov’t intrusion
C. Norms: words to label what judges think about when making rules
1. Accuracy: protecting the innocent, convicting the guilty
2. Fairness: trying to make a fair and just system
3. Limited Gov’t: jury/citizen involvement, all gov’t doesn’t have power
4. Efficiency: give up a little privacy/security in order for process to go along
II. 14th & 4th Amendments
A. General Rule: can’t do anything that conflicts with constitution, no inherent federal powers
B. 14th Amendment: speak to the states, section 1. P OR I clause, due process clause, equal protection clause
1. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws”
C. Incorporation:
1. What Const. Rights:
1. Total: entire Bill of Rights OR
2. Selective Incorporation
2. 4th/5th/6th Amendments: almost all applies to states with exceptions of baiul requirements, grand jury, right to jury in civil trial
D. Duncan v. Louisiana
1. Legal Q: Does jury trial apply to the states? Does 14th amendment guaruntee righ to jury trial?
2. Arguments Against: const. doesn’t impose a duty to give a jury trial in any criminal case, regardless of seriousness of the crime/punishment
3. Court Decide: 14th amendment does guaruntee right to jury tril due to entrenchment of right in history. 6th amendment incorporated into 14th amendment. Fundamental righs must be incorporated. (selective incoporation)
4. Norms: fairness
E. 4th Amendment: the right of the people (broad) 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
F. Exclusionary Rule: Mapp v. Ohio
1. Remedy for 4th and 14th amendment violations
2. Cops come into house and conduct a search w/o a warrant. Forced their way in and looked around everywhere searching for a person in a pill box
3. Issue: does the 14th amendment forbid the admission of evidence that was obtained (illegally) with unreasoanble search/seizure
4. Hold: all evidence is excluded if obtained illegally, it is not admissible in state courts. (exclusionary rule applies to the States)
1. Other evidence that has been acquired, directly or indirectly, as a result of an unconstitutional search or arrest (fruit of the poisonous tree) must be excluded from evidence, unless the government can break the link between the unconstitutional evidence and the other evidence
5. Had to state the exclusionary rules apply to states b/c not explicitly stated in the 4th amendment
6. Why?: protect privacy
1. Makes good sense, no incentive, allows gov’t to disregard and get enjoyment of illegal searches
III. What is A Search?
A. Katz v. US (pg. 84):
1. Wiretapping a phone booth above and outside of it. Done w/o warrant
2. Cal. Supreme Court found no search b/c they didn’t have to go into the phone booth
3. Guy expected some right of privacy (reasonable)
4. 4th amendment protects people, not an area
5. Judge Harlan’s Concurrence: (pg. 87) Two Part Test
1. Person have exhibited an actual (subjective) expectation of privacy AND
2. That the expectation of privacy be one that society is prepared to recognize as “reasonable” (objective)
6. The defendant may not argue that his 4th amendment rights have been violated if he did not attempt to keep his communications private. This applies to conversations conducted in a reckless fashion with disregard for whomever may be listening.
B. US v. White: 4 years after Katz
1. Issue: whether electronically monitored wire tapped gov’t informant, informant wasn’t available for trial and wanted to introduce evidence
1. Is this an expectation of privacy?
2. This did not constitute a search b/c his expectations cannot be that they won’t betray your confidences or turn over the information to the police
3. No violation of 4th amendment if undercover agent conceals identity to gain enterance to suspect’s home and purchase narcotics (burden is on you)
4. Risk Analysis Approach: defendant accepted the risk when disclosing information to a third party
C. Smith v. Maryland: (pg. 103)
1. Issue: did using a pen register constitute a 4th amendment search? Was this a reasonable expectation of privacy?
2. Used Harlan’s two prong test
3. Reject claim that this was a legitimate expectation of privacy in formation he voluntarily turns over to third parties =NOT A SEARCH
1. Akin to turning info to informant/phone company
4. Satisfied 1st prong, 2nd failed as society does not think its reasonable
D. Voluntary Movement = Not a violation
E. Beeper in the
the circumstances
O. US v. Jones: GPS device to an individual’s car = search violation?
1. Yes is constituted a search
2. It adds = physical intrusion or ‘trespass’
3. Trespass upon open fields is not one of those protected area of the 4th amendment
4. Changes way to gain info to get PC to search house, car
IV. Warrants & Seizures
A. Anticipatory Warrant
1. Based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place
a. Requires magistrate to determine that:
1. That it is now probable that
2. Contraband evidence, or a fugitive will be on the described premises
3. When the warrant is executed
2. If officer lied = there is a remedy but not if he got the wrong facts
3. Probable cause and affidavits usually stand
4. Does Affidavit show PC?:
a. The info comes from a reliable informant
b. The informant had a sound basis of knowledge for the information
B. Seizures
1. Definition: a seizure of property occurs when “there is some meaningful interference with an individual’s possessory interest in that property
2. Law Enforcement May Seize: what they have probable cause to believe is:
a. Contraband
1. Evidence that may not be legally possessed
b. Fruits of a Crime
1. Money from a robbery
c. Instrumentalities Used in the Commission of an offense
1. Gun, knife, rope, candlestick
d. Mere Evidence
1. An item of value to the police solely because it will help in the apprehension or conviction of a person for an offense (blood stained shirt)
3. Arrests are seizures of persons
C. Arrest Warrants
1. Payton v. New York: whether and under what circumstances an officer may enter a suspect’s home to make warrantless arrests
a. Public arrests do not require a warrant
1. Has committed or about to commit
b. Has probable cause hearing within 48 hours
1. Then magistrate determines using same test
c. Need a warrant to arrest in the home: basic principle in 4th amendment law
1. Same privacy implications as search b/c they still see all of your stuff
2. Language of the 4th amendment ‘unreasonable seizures’
3. Reasonable expectation of privacy ONLY search, seizure = possessory interest
