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Criminal Procedure: Investigation
University of Toledo School of Law
Jefferson Exum, Jelani

Jefferson-Exum CrimPro Fall 2011

1) Chapter 1:

a) Due Process Failures:

i) Scottsboro Boys – Powell v. Alabama

(1) NORM: if D is unable to assert rights, court should appoint an attorney.

(2) RULE: in capital case, where indigent defendant is unable to employ counsel, it is duty of court to appoint attorney in a fair amount of time before trial.

ii) Brown v. Mississippi-

(1) RULE: convictions cannot be based solely on confessions obtained by torture.

(2) NORM: when evidence is result of coercion it is violation of DP. No fairness (humane procedure) or justice (result). Want accuracy & non-prejudicial.


i) Kinds:

(1) Accuracy of verdicts

(2) Fairness of procedure

(3) Honoring presence of limits on gov’t power to use or find evidence

(4) Efficiency

ii) Norms have many different meanings so you must express what you mean (MUST SAY it is not fair b/c…. OR it is just b/c…)

2) Chapter 2 Exclusionary Rule & Chapter 3 Search-

a) Intro:

i) If an officer wants to perform a search they need a warrant.

ii) Show “probable cause” in order to secure warrant from a magistrate.

iii) Searches w/o a warrant are PER SE unreasonable. EXCEPTIONS

b) Exclusionary Rule – Mapp v. Ohio- state att’y could use evidence fed. att’y couldn’t

i) RULE: evidence obtained by illegal searches & seizures is inadmissible in state court.

ii) Purpose of exclusionary rule: “to deter–to compel respect for constitutional guaranty in the only effectively available way–by removing the incentive to disregard it.”

c) Fourth Amendment:

i) What is a search? Katz v. US (1967)- wiretapping phone booth INCLUDED

(1) Rule: physical entry (intrusion) is not required for there to be a search

(a) 4th Amd. guarantees privacy of person & not of place or “areas”.

(2) Expectation Holding: whatever D knowingly exposes to public is not, & what D justifiably considers private & keeps from public view or hearing is protected.

(3) Harlan Concurrence: TWO PART TEST:

(a) Person exhibited an actual (subjective) expectation of privacy AND

(b) The expectation is one society recognizes as reasonable (objective).

(i) Think of as whether, if allowed by 4th, the surveillance would diminish privacy & freedom of citizens to point inconsistent w/free & open society

ii) Applying Katz Doctrine:

(1) White: gov’t informant wearing wire while agents recording NOT IN 4TH

(a) Rule: 4th Amd. doesn’t protect a D from having convo. w/associate recorded by that associate or transmitted to a recording or listening device elsewhere

(i) Criminal realizes & risks that corroborators may be cooperating w/police à no justifiable expectation of privacy, no matter level of trust b/w them.

(ii) DIFFERENCE is whether the agent was visible to D.

(b) Limits Katzà unless D knowingly exposes convo. to public, it cannot be subjected to electronic surveillance w/o warrant or help of the other party

(2) Smith v. MD- Pen register outside home NOT IN 4TH USE Harlan’s Katz test

(a) PO had phone co. install pen register & used info. to get a search warrant

(b) Rule: warrantless installation of a pen register to records #s dialed from D’s home telephone doesn’t violate D’s legitimate expectations of privacy.

(i) Phone users realize they’re conveying info about #s they dial to phone co.

(ii) NO legit. expectation of privacy for info. voluntarily given to 3rd party

(iii) Pen register has limited capabilities.

(3) Notes:

(a) Knotts- radio transmitter inside 5gal drum, monitored until drum reached D’s house, & D put drum outside house. NOT IN 4TH.

(i) NO reasonable expectation of privacy for movements on public roads.

(b) Karo- tracking device in can & monitored Ds moves on roads & inside home.

(i) INCLUDED- electronic device used to obtain info about inside of homes which could not have been observed from outside curtilage.

(c) Dog Sniffs- exposure of luggage, located in public place, to a trained canine is NOT IN 4TH. Discloses only if there are narcotics & info obtained is limited.

(4) Bond v. US- anytime there is exploratory or physically invasive touching (squeezing bag) of personal items on bus. NOT IN 4TH.


(1) Courts protect homes & curtilage more than open fields (4 factors from Dunn)

(2) Open Fields-

(a) Hester v. US- entry of an open field doesn’t implicate 4th Amd.

(b) Oliver v. US-

(i) Open field “may include any unoccupied or developed area outside of the curtilage of a home.” NOT LITERAL.

(ii) D can’t legitimately expect privacy for activities conducted outdoors, except in curtilage. No societal interest in protecting outdoor privacy.

(3) Curtilage-

(a) Area to which extends the intimate activity associated w/sanctity of a man’s home & the privacies of life.

(b) Dunn- 4 factors for curtilage:

(i) Proximity of area claimed to be curtilage to home,

(ii) Whether area is included w/in an enclosure surrounding home,

(iii) Nature of uses to which area is put, AND

(iv) Steps taken by resident to protect from observation by people passing.

(c) Greenwood- curb is curtilage, but trash isn’t protected b/c D is voluntarily handing goods over to 3rd party.

(d) Ciraolo- PO flew plane over D’s house at legal altitude & took pictures

(i) Held: no search- SP- 10ft fence doesn’t give expectation of privacy from everything & OP- not reasonable expectation of privacy

(e) FL v. Riley- helicopter 400ft over greenhouse in curtilage not search

(i) Rule: in curtilage, it isn’t a search to make observations based on what is in public view from the public airways.

(ii) “The eye cannot by the laws of England be guilty of trespass.”

(4) Kyllo v. US- thermal imaging aimed at home from public street INCLUDED

(a) Rule: where tech. is not in general public use, obtaining any info. regarding the interior of a home by sense-enhancing tech. that couldn’t otherwise have been obtained w/o physical intrusion into const. protected area IS a search.

(b) In home, ALL details are intimate b/c entire area is safe from gov’t eyes.

(c) PROBLEM: What is “general public use?”

(i) Dow Chemical- enough people have aerial mapping tech.- no search.

(ii) White- tech. of person wearing wire is permissible- no search

(d) PROBLEM: what about “interior details of the home?”

(i) Smith- pen register isn’t giving info. about personal details of home & no expectation

, they can coax D out anyway possible.

f) Search Warrants-

i) General Rule: you need warrant for search to be reasonable.

ii) Competing view: exceptions call for REASONABLENESS & not a warrant.


(1) Warrant issued by neutral & detached magistrate (not from 4th Amd).

(2) Probable cause

(3) Supported by oath or affirmation (affidavit must be signed & sworn to be true)

(4) Particularity-

(a) Must state what there is PC to search for.

(b) NOTHING should be left to officer’s discretion in their search.

iv) Execution of search warrant: Richards v. WI:

(1) Rule: to justify “no-knock” entry when executing search warrant, police must have reasonable suspicion that knocking & announcing their presence, under circumstances, would be dangerous or futile, or that it would inhibit effective investigation of crime (ex. destruction of evidence).

(a) Reasonable Suspicion STD: PO must be able to articulate something more than an inchoate & unparticularized suspicion or hunch. There must be “some minimal level of objective justification” for police conduct.

(b) Evaluated at time police entered room.

(2) Police cannot trick people to get into their house.

(3) NOTES:

(a) Facts known to police are what count in judging reasonable waiting time.

(b) Cops can reasonably restrict people w/o warrant:

(i) While waiting for search warrant or while conducting the search.

(ii) Can cause reasonable damage property.

(iii) Can search containers large enough to hold criminal evidence which is being searched for (could they reasonably find evidence in container?)

g) Exceptions to Search Warrant Requirements: focus on reasonableness

i) Exigent Circumstances:

(1) Warden v. Haden-

(a) Rule: searching for suspect or weapons closely following crime is exigent circumstances when time is of the essence when there is danger of criminal escaping or evidence being destroyed

(b) 4th Amd. doesn’t distinguish b/w mere evidence & instrumentalities, fruits, & contraband pertaining to crime.

(c) Based on TOTC- police had PC to show D & weapons were in residence.

(2) Exigent Circumstances List: warrantless intrusion may be justified when: in hot pursuit of fleeing felon, imminent destruction of evidence, preventing a suspect’s escape, OR risk of danger to police or to other persons inside or outside dwelling.

(a) Standard: In absence of hot pursuit, there must be at least PC to believe 1 or more of other factors were present and in assessing risk of danger, gravity of crime & likelihood suspect is armed should be considered.