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Criminal Procedure
University of Toledo School of Law
Steinbock, Daniel J.

Criminal Procedure – Investigations Outline

Dean Daniel Steinbock Spring 2013

Exam Tips:

· State the rule

· State court’s reasons behind the rule (what their concerns are)

· State if you agree/disagree with rule and why

· State alternatives to the rule, and whether they are workable or not

The Norms of the Criminal Process

· Accuracy – making sure the right person gets in jail for a particular crime (no false confessions)

· Fairness/Justice – everyone treated equally and has an opportunity to assert their rights (fairness) so that we get the right outcome for the case (justice)

· Limiting govt. power and discretion

· Efficiency


· 4th Amendment – ct. concerned about privacy rights and deterring police from unreasonably violating those

· 5th Amendment – ct. concerned about method of interrogation and whether you were coerced into confessing as well as if your will was overborne; stops statements that were coerced from being used against you in any way (including impeaching

· 6th Amendment – ct. concerned about uncounseled interrogation, assistance at trial against the govt., fairness, and getting at the truth (NOT stopping you from saying stupid things to the cops)

The Fourth Amendment – Theme: Balancing individual rights with security

“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.”


· Standing: was the privacy of the person arguing for suppression violated?

o If NO, don’t proceed, no 4th amendment violation with respect to that person

o If YES, continue

· Is it a search and/or a seizure?

§ Search

· Subjective manifestation of privacy

· Legitimate expectation of privacy (an interest society recognizes as reasonable) (8)

1. Exposure to 3P or the public

2. Trash

3. Sensory enhancement devices

4. Dog sniffs

5. Open fields

6. Curtilage

7. Aerial surveillance

8. Manipulate bags (bus searches)

§ Seizure

· Property: was the person deprived of a possessory interest?

· Person: would a reasonable person feel free to leave?

o At what point was there a seizure? (could have started as an encounter)

o Is it a stop or an arrest?

§ Stop: investigatory Terry stop; for the basis of investigating/confirming/ dispelling suspicion

§ Arrest: physical restraint or force OR submitting to a show of authority

o Did the officers have the requisite level of suspicion for that type of seizure?

o If NO search/seizure, no 4th amendment violation

o If YES, was there a warrant?

· Generally, searches and seizures without a warrant are per se unreasonable

§ If YES, was the warrant valid (6)?

1. Based on probable cause

2. Oath/affirmation

3. In front of neutral magistrate

4. Particularity (scope of search limited to places and certain things)

5. Knock and announce

6. Executed reasonably (reasonable force, no punching people in face, etc.)

· If YES, no 4th amendment violation

· If NO, there was a 4th amendment violation (talk about remedies and exclusionary rule)

§ If NO, is there a valid exception (7)?

1. Exigent circumstances

2. Car searches (probable cause, how far search can go (includes trunk), etc.)

3. Search incident to arrest (can search person and immediate grab area, including the whole passenger compartment of a car, but NOT the trunk)

4. Plain view

5. Consent

6. Public arrest w. probable cause

7. Public stop w. reasonable suspicion

· If NO, 4th amendment violation

· If YES, no 4th amendment violation

· Remedying 4th Amendment Violations: when does the exclusionary rule apply?

o Is the evidence the fruit of a 4th amendment violation?

· But-for causal connection (but-for violation, do you ever get to evidence?)

§ If NO, no exclusion b/c not fruit of the poisonous tree

§ If YES, is there an exception (4)?

1. Independent source – could have gotten warrant (and later did) based on info they already had prior to the illegal search

2. Inevitable discovery – were about to discover evidence anyway before the violation

3. Attenuation – taint has dissipated b/c so far down line (ex. D brought forth voluntarily)

§ Revisit Standing here in the context of tainted fruit offered against someone who’s rights were violated (it was their poisoned tree)

4. Cost of exclusion outweigh the benefits?

§ Since deterrence is the driving force, would excluding the evidence have deterred police behavior in the situation?

· If YES, no exclusion, evidence can be admitted

· If NO, exclude/suppress the evidence

The Substance of the 4th Amendment

· General Info:

o The 4th amendment protects PEOPLE, not PLACES

· What is a search? (Katz v. United States, p. 84)

o Two Part Test (Known as “Harlan’s Test/Katz test/the Search Test”):

§ A person exhibited an actual expectation of privacy (Subjective Prong)

§ The expectation is one that society is prepared to recognize as “reasonable” (Objective Prong)

· Society does not recognize a legitimate expectation of privacy for wrongdoers/contraband

· Court frequently substitutes their own judgment on what society would think reasonable…

o Society’s expectations can change over time and depending on the context (ex. govt. announces they will tape all phones à does you/society still have a legitimate expectation of privacy?)

o Things that ARE searches:

· Physical entry is not required in order for there to be a search, but if there IS a physical intrusion, it is more likely to be found to be a search

§ Things people seek to keep as private

§ Most intrusions into a house/business/bags (on exam, liken bags to homes/close personal items)

· Including searching in the curtilage/yard (area immediately surrounding your house)

· Curtilages: Four Factors/Guidelines

o Proximity to home

o Whether area is in enclosure surrounding home (steps have been taken to protect it)

o Nature/uses of the area (generally used the same as the home is used)

o Steps taken to protect the area from observation

§ Wiretaps

§ Beepers/GPS that monitor the inside of house (ex. where is bag in house)

§ Bus sweeps (where cops manipulate soft bags from the outside to feel for contraband)

· Society may expect someone to brush your bag, but not squeeze exploratorily from outside…

§ Using sense-enhancing technology that is NOT in common use by the public to get info about interior of the home that would not otherwise available unless cops physically intruded, (ex. heat sensor scan)

o Things that are NOT searches:

· If there is no physical intr

s of knowledge, character of the neighborhood, officer’s training that makes him knowledgeable, etc. è “fair probability” does NOT mean a certainty

· No numerical guides (some people think > %50, some people think 1 out of 3 is enough)

· You cannot get fair probability just b/c someone lives in a high crime/drug neighborhood

§ NOTE whether there is probable cause or not does NOT have a right answer (say this on EXAM); it just has to be reasonable under the totality of the circumstances test (so argue both ways – why reas. AND not)

o Elements of a valid search warrant (6):

§ Probable cause

· BUT if arrested in public, can be done w/o warrant; cop only has to make an on-the-scene determination of if probable cause exists (vs. trying to prove to magistrate that it exists); once arrested, you get a probable cause hearing within 48 hours to see if you can be held or not

§ Officer also has to swear oath/affirmation that everything in affidavit is true to best of their knowledge

§ Warrant must describe with particularity what/who you are searching for and where you can look for it

· Nothing should be left to the discretion of the officer of what he can/cannot search

§ Issued by a neutral magistrate with no stake in the case

§ Knock and announce requirement (see below – “Execution of Warrants”)

§ Executed reasonably (see below – “Execution of Warrants”)

o Court’s Concerns:

§ Not a bright line rule like it used to be (proving veracity of anonymous W, credibility, reliability, basis of knowledge, etc.)

· Easier using old test to lie to get warrant (ex. if informant has pending charges against him, he is motivated to lie about what happened to get charges dropped; ct. only knows W credible in past)

§ Totality of the circumstances test goes towards getting rid of individual rights

§ Shouldn’t give cops discretion in how much evidence constitutes probable cause

§ It’s too burdensome on cops to require them to get search warrants every time

o Ways of showing probable cause:

§ Anonymous letter with tip + corroboration

§ One guy out of three in car owned drugs = probable cause existed to search car b/c joint possession or common enterprise b/w the three men, so all three guilty of possession

o NOT probable cause

§ Bigger communities of potential wrongdoers – ex. someone in the classroom is doing something other than taking notes = not probable cause to search everyone’s computers

o Anticipatory Warrants (evidence not where you want to search at present, so you want to get warrant now so you can search next week when the evidence IS there)

§ The condition must trigger before you can use the warrant (ex. waiting for a package to come to house; can’t search the house until the package gets there)

§ Still requires probable cause