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Criminal Procedure
Wayne State University Law School
Pagac, Christine

Criminal Procedure: Investigation
Pagac – Winter 2011

Don’t forget: Katz privacy expectation, Standing. Voluntariness standard.


Rights were deemed fundamental and thus selectively incorporated through:
–          14th Amendment (due process)
o   “…nor shall any State deprive any person of life, liberty or property without due process of law.” (1868)
o   Due process = shocking to the conscience (prior to incorporation) = Substantive due process
§  Rochin: pumping of D’s stomach was unconstitutional b/c it shocks the conscience.

Bill of Rights Incorporated Against the States:
–          4th Amendment (search and seizure)
–          5th amendment (privilege against self incrimination)
o   the right to be indicted by a GJ for a felony does not apply to the states
–          6th amendment (right to counsel)
–          1st amendment (freedom of speech)

Due Process Arguments:
Incorporates almost all Bill of Rights against states.
Substantive due process (police conduct is shocking to the conscience)
(Cty of Sacramento v. Lewis: only argue if no protection under the bill of rights)
Procedural due process (states must have fair procedures)


4th 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.”
–          Reasonableness clause (all must be reasonable)
o   “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated,”
–          Warrants clause (all do not require a warrant)
o   “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.

Search and Seizure—The Exclusionary Rule (218-254)
EXCLUSIONARY RULE:  If search and seizure of the evidence violates the 4th amendment, the evidence is excluded (Weeks).
à Applies to states (Mapp, overruled Wolf which said states can have different remedy)
RATIONALE:  Police deterrence.
Only against police (not private or other government actors)
(also not parole authorities, Penn Bd of Probation v. Scott)
Police or their agents. à TEST: Is private person acting on behalf of police at their urging? (Jacobsen)
Only in criminal trials  (and criminal forfeiture actions, 1958 Plymouth Sedan)

GOOD FAITH EXCEPTION (Leon): No exclusion despite a violation if the officer reasonably relies on a warrant. (objective standard). Concise.

RATIONALE à if it is the judge’s fault or a clerk’s fault, no police deterrence.
Applies when…
Massachusetts v. Sheppard: Judge hands officer warrant and says “go seize stolen
property”, but judge forgot to change warrant, which says to seize drugs. 
Arizona v. Evans: officer relied on clerical error. Note: If officer should have known of
error, argue exclusion b/c deterrence rationale applies.
Does not apply when…
Groh v. Ramirez: officer made the error in preparing the warrant.

Exceptions to Police reasonable reliance:
Officer can’t reasonably rely on a warrant obtained with false information when the false information was necessary for the judge to find probable cause (Franks v. Delaware).
No objectively well-trained officer would have reasonably relied.
A warrant may be so facially deficient, i.e. failing to specify place to be searched or things to be seized, that executing officer can’t reasonably presume it is valid.
(Groh v. Ramirez: warrant puts address in space for items to be seized)

Exclusionary Rule not applied to Knock and Announce Violation…different remedy (Hudson v. Mich.).

Search and Seizure—Protected Interests (254-281, 465-474, 496-506)
Katz Test: Government action is a search if (1) Defendant has an expectation of privacy (subjective), that (2) society regards as reasonable (objective).
à Everything outside the Katz test is not covered by the 4th amendment.
Protected Interests (passes Katz test):
–          Phone conversation in phone booth (expectation to be seen not heard) (Katz)
–          Curtilage (Oliver), see four factors (Dunn)
o   No reasonable expectation of privacy for big tracts of land, should expect people to trespass.
o   Determining curtilage Factors: Proximity to home, w/in enclosure surrounding home, nature of area’s use (i.e playground, pool etc.), resident’s steps to protect area from observations of passerby
–          Aerial observation below legal altitude (Florida v. Riley)
–          Luggage, protected from physical manipulation (Bond) and contents (i.e. Hicks)
–          Information obtained from govt's use of exotic sensory enhancing equipment, i.e., thermal imagers, not readily available to public (Kyllo) (public wouldn’t have access, really expensive camera does not apply).
–          Information obtained from a beeper that could not have been obtained through visual observation, i.e., confirms container remains inside house (Karo)
–          Letter contents (not info on outside of envelope)
–          Tracking devices (if can track without visual than this is protected)

Unprotected Interests (fails Katz test):
–          Curbside garbage bags (California v. Greenwood)
–          Open fields (Oliver)
–          Aerial observation from w/in legal altitude (Florida v. Riley), (Cali. v. Ciraolo)
–          Canine sniffing of…
o   Luggage in public place, i.e., airport (Place)
o   Vehicle during traffic stop (Illinois v. Caballes)
–          Aerial photos of a chemical company’s industrial complex, open fields (Dow Chemical)
–          Bank records (Miller v. CA), phone records (Smith v. Mary

y (Draper)
–          Magistrate knew disgruntled ex was tipster, but corroborated details (Upton)
No probable cause based solely on anonymous tip (Spinelli, almost per se).

Anticipatory Warrant: Grubbs – For a conditioned anticipatory warrant to comply with 4th amendment probably cause requirement, two prereqs must be satisfied. (1) It must be true not only that if the triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place, but also (2) that there is probable cause to believe the triggering condition will occur.

PROBABLE CAUSE TO ARREST: Totality of Circumstances
à Is there a fair probability that Defendant has committed a crime?
Probable cause existed when…
–          All three men in car were arrested when no one claimed ownership of drugs. Even though PC is somewhere around 50% or more probably than not, these drugs could have been jointly owned (Pringle). (in a car 1/3 in car own drugs, but actually more than that so increase PC)

Search and Seizure—Search Warrants and Plain View (307-318)

Search Warrant Requirements:
Issuing magistrate must be neutral and detached and must be capable of determining whether probable cause exists for the requested arrest of search.
Requirement not met when…
o  AG issued warrant for case in which he was chief prosecutor (Coolidge)
o  Judge paid $5 if issued warrant, $0 if not (Connelly v. GA)
Police can only look where items in search warrant would reasonably be found.
Particular description of place to be searched and things to be seized.
o  Particularity in warrant not supporting documents, facially invalid (Groh)
Police must knock and announce their presence. (violation of this today does not violate exclusionary rule, remedy is not suppression of evidence).
o  Waiting period: must wait a reasonable time for occupant to reach door (Banks)
o  If you are walking out while they are walking in can they can stop you and detain you (Michigan v. Summers). (keeps you from running, protects officers, minimal intrusion).
Exception: if (1) police reasonably think it would be dangerous for them, or (2) police have reasonable suspicion to believe that people will respond to the knock and announce by destroying the evidence (Richards).
Third parties can be present only if aid in execution, not media (Wilson v. Layne).