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

Criminal Procedure – investigations

Prof. Jelani Exum

Fall 2011

I. Introductory Materials: The Criminal Process

A. Failures p. 9-23; p. 25-34

B. Seeking Legitimacy in Fourteenth Amend.

A. U.S. Const. Amend. XIV

i. Sec. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State where they reside. No State shall make or enforce any law which shall abridge the privileges and 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 any person within its jurisdiction the equal protection of the laws

ii. Sec 2. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article

C. Norms of the Criminal Process

B. procedure exists to preserve certainty when it comes to guilt/innocence of accused and to preserve consistency in the ‘process’ ie search seizure, trial times etc. [see p 49 – 53]

i. note: Understand distinctions between ‘requirements’ and ‘norms’ in the judicial process.

a. Requirements – must do

b. norms – usually do.

i. Norms have many meanings. When using in class and on exams you must express your meaning b/c these ideas are subjective.

C. Duncan v. La (p. 39-49)

i. Right to a jury trial is ‘fundamental’ and necessary to avoid ‘unchecked’ judicial power in serious criminal cases

ii. Incorporation Q’s answered – fundamental rights in [historically important] almost everything in criminal law included except bail, grand jury requirements and some things pertaining to civil actions

D. Basic Norms

i. Accuracy

ii. Fairness

iii. Justice

II. Fourth Amendment Overview

A. Basis of Exclusionary Rule

A. U.S. Const. Amend. IV (p.2)

i. Fourth Amendment: 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.

B. Exclusionary rule: evidence unlawfully seized must be excluded at trial

i. Rationale: to prevent/discourage police misconduct

B. Mapp v. Ohio p. 73-82

A. The 14th amend DP Clause allows the 4th amend. Protection against illegal search and seizures To apply to state governments


a. Avoid injustice and hold police/lawmen accountable for their behavior

b. Give 4th amend meaning

c. States have already made this decision (2/3) just applying to all states now

III. Passing the Threshold of Fourth Amend.

A. What is a Search? p. 84-92

B. Katz v United States

A. Is tapping a public phone booth a violation of the 4th amendment? Is it a search?

i. CA ct said no search b/c no physical intrusion/entrance

ii. US Sup Ct. says ‘right to privacy’ more important than physical entry

iii. 4th amend protects PEOPLE not PLACES

B. Katz intended his conversations in public phone booth private and the wiretap was an illegal invasion [search] of that privacy

C. When a person intends their conversation to be public it may not be a ‘search’

D. Two part test for What is a search:

i. The person must exhibit a reasonable [subjective] expectation of privacy and

ii. The expectation must be one that society recognizes as ‘reasonable’ [objective]

a. Criticism: this may allow gov. to manipulate the reasonable test.

b. Dissent: only tangible things can be searched

C. US v White

A. The taped conversations between accused criminals and Wired informants are not subjected to a reasonable expectation of privacy and so can be used against the accused in ct. the same as verbal testimony from the informant

D. Smith v Maryland

A. Pin register is not a search because not installed in the accused’s home and there is no reasonable expectation of privacy regarding numbers dialed from one’s telephone

B. No legitimate expectation of privacy when information is handed over to a third party ie. Bank deposits

C. Two Prong test

i. Actual [subjective] expectation of privacy

ii. Expectation of privacy must be one that society recognizes as ‘reasonable’ [objective]

iv. Mere evidence – items of value to police solely as evidence to prove the accused actually committed the crime

C. Seizure of a person is an arrest

D. Warrants May ONLY issue upon PROBABLE CAUSE Supported by OATH OR AFFIDAVIT

C. Arrest Warrants p. 171-184

A. Arrest is a seizure of a person

B. All arrests need probable cause [to believe person committed crime]

C. Arrest in public place does not need a warrant

i. Arrest in home does

ii. In warrant there must be a ‘place to be searched’[usually the home] – but only allows to get the person, not to do other searches [or go into another’s home]

iii. N 8 p 182-83

iv. Need probable cause/reason to believe that the person lives/resides in the place where the warrant is served [is within]

v. If arrested [in the home] without a warrant then any evidence seized is inadmissible but arrest is not per se invalid

vi. Arrest warrants are not protections against arrest, but protections against invasion of the home under 4th amend.

vii. ‘threshold’ arrests are ok

viii. Outside the home probable cause is the only shield against arrest

D. Not required to arrest someone outside of their homes [but must still have probable cause]

i. Must have a probable cause hearing before a magistrate within 48 hrs of warrantless arrest

E. Payton v. New York – p 171

i. Must have a warrant to arrest someone in their own home [otherwise it as ‘unreasonable seizure’]

ii. Must have reason to believe that suspect is inside the home

iii. Must have probable cause / sufficient evidence

F. Arrest warrants are for seizures of people NOT searches for people

i. See note 10 on p 183

ii. To search for someone in another person’s house must have a SEARCH warrant