Criminal Procedure Outline

Criminal Procedure: Investigation
Pagac – Winter 2011
 
 
Don’t forget: Katz privacy expectation, Standing. Voluntariness standard.
 
DUE PROCESS INCORPORATION (22-33)
 
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)
 
 
SEARCH AND SEIZURE
 
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