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Criminal Procedure: Investigation
West Virginia University School of Law
Taylor, John E.

Chapter 1: The Criminal Process: Failures, Choices and Legitimacy
Investigation Failures
Early on crim pro rules applied to federal courts – left states to create their own system (Barrington v. Missouri)
Barrington allowed states to use sweat boxes during an investigation
Have to be extremely careful that there isn’t any influence during a federal investigation when it comes to a confession (Bram v. United States)
Brown v. Mississippi
Only evidence the state had was where the confessions that were beat out of the ∆s
∆s argued they were convicted by confessions that were gotten through brutal means and self-incrimination
State argued that it should be upheld because the state can suspend self-incrimination under Twining and that the 5th Amendment doesn’t apply to the states
Ct ruled that a state can regulate their own procedures as long as it doesn’t infringe the principle justice (Due Process Clause)
The state’s right to create procedure is limited by the DPC
Trial Failures
Powell v. Alabama
No real evidence other than two women saying they had been raped
Had a trial – appointed counsel just days before, and then later appointed the whole bar
Supreme court only looked at the right to counsel
Ct was more concerned with the less ambitious right to counsel idea that the ∆s weren’t even given a chance to find their own counsel
Don’t need incorporation to apply DPC in this case.
Didn’t speak much on the 6th Amendment.
The Norms of the Criminal Process
Security v. Liberty/Privacy
Federalism
 
Fairness/Limited Government
Efficiency
Easier to justify norms that promote accuracy and/or protect the innocent.Norms that rest on a sense of “fairness” even to the guilty may prove more controversial
Bill of Rights originally applied only to the federal government
4 Questions regarding extending the Constitutional Criminal Procedures protections to protect citizens against state intrusions:
What part of the 14th Amendment to use?Privileges and Immunities or DPC?
Slaughter house cases read the 14th Amendment’s Privileges and Immunities Clause as solely about protecting the immunities of “natural citizenship” – rights of the sort one could not have against the single states.
P&I dead letter
Courts now use DPC to incorporate the Bill of Rights to the states
See Duncan v. Louisiana
Incorporate all, some or none of the Bill of Rights?
Recognition of “due process” rights not enumerated in the Bill of Rights?
Where a right in the Bill of Rights in incorporated must the incorporation be “jot for jot”?Must the “tail go with the hide”? Does all the federal “bag and baggage” go along?
 
 
All of B of R
Due proc. Rts beyond B of R?
Jot for Jot?
Total Incorp.
Justice Black
 
 
 
Total incorp. Plus
Justice Douglas
 
 
 
Fundamental fairness/due process
Justice Harlan
No necessarily (really no incorp.)
 
 
Selective incorp.
Justice White
Not necessarily
 
 
Harlan – not everything comes over – just that Due process has meaning and that mean is:  is that process fundamentally fair?
                14th Amendment stands on its own.
Officially Black lost, but nearly all of the crim pro provisions in the Bill of Rights have been incorporated. 
The Bill of Rights and the 14th Amendment:The Incorporation Story
Duncan v. Louisiana
Do you have a right to a jury trial?
Ct. basically says yes expect for very minor things (convictions under 6 months)
Chapter 2:Fourth Amendment:An Overview
The Text and Its Mysteries
Reasonableness clause – up to “shall not be violated”
Some people believe the reasonableness clause is now the prevailing clause and that the warrant clause has been chipped out.
Warrant clause – starts with “and no warrant shall issue…”
Doesn’t tell you when you should get a warrant
The Reach of the Fourth Amendment
The People
Very little case law on whether 4th Amendment applies to people who are not citizens of the U.S. but in America
Applies to government officials or people acting for government.Not 3rd part acting on own that turn evidence over.
The Birth of the Exclusionary Rule
Weeks v. United States
Anti-Gambling case. Local police go in and find lottery tickets and give to Marshalls who in turn goes into Weeks house again.  No warrant for each search
Evidence gathered by Marshalls treated differently than local police
Marshalls were bound by the text of 4th Amendment. 
They didn’t have a warrant so the evidence was excluded from
Excluded because if you use the evidence taken from a warrantless search, might as well not have the 4th Amendment. 
Judicial integrity – if we use dirty evidence to put someone away, the courts are now dirty and there is no longer a right to fair trial.
Local police –  Court says not subjected to federal authority
Amendment doesn’t apply to state and local – No exclusionary rule
After Weeks, exclusionary rule applies only to federal actions.Question about whether it was state or federal investigation important.
Wolf v. Colorado
Does the 4th Amendment apply to state actors?
 
If so, does the exclusionary remedy also apply in state court?
 
Exclusionary seemed as an alternative not part of the 4th Amendment.(In Weeks it seemed to be together)
Takes on a fundamental fairness approach.Doesn’t have to be jot for jot.
States can be their own labs and draft remedies that could be alternatives but valued under due process.4th Amendment is incorporated as implicit in the scheme of ordered liberty, but choice of remedy can be left to the state (civil lawsuits, criminal charges, etc.).At the time only 1 state had adopted the exclusionary rule
Exclusionary rule is not part and parcel of the 4th Amendment.
Rochin v. California
Rochin swallowed a pills and cops took him to the hospital to get his stomach pumped.
Court said too much – medieval
After Wolf, exclusionary

n’s Dissent:talks how a normative question is key.
Too big a threat on freedom of society to be left unregulated. Ok with unwired case but thinks wired cases go too far.Make people more careful on what they say to others and will hinder society.
Smith v. Maryland
Patricia McDonough was robbed and started receiving threatening phone calls and drive bys. Cops spot car – trace the license plate and finds that the car is registered to Mike Smith.  Telephone company puts pen register on his phone – just tells what numbers were dialed, nothing else.  Find that Smith was calling, got a warrant and found phone book that was tabbed to the victim’s page.
∆ wants everything found from pen register thrown out because it’s fruit of the poisonous tree.
Question of whether the pen register is a search
Blackmun – need to look at the means.
It was minimum intrusive technique.
Probably not expectation of privacy
Start where the court begins to recognize that the subjective prong of Harlan’s test has trouble
Blackmun doesn’t believe there’s a subjective privacy right and if he is wrong there’s no objective right either.
3rd Party doctrine – person has no legitimate expectation of privacy in information he voluntarily turns over to the Court.  Therefor held not a search. 
Marshall Dissent – ∆ couldn’t assume the risk because there was no other option to make phone calls.  Assumption of risk implies that there is a choice.
and the new Technology:  Back to the Future?
Smith and Kyllo inconsistent? – Smith made calls inside the house.  Kyllo said if technology lets you get information that was made in privacy of the house, that is a search.
Legislature restrictions were put on police after Smith (gave some back after 9/11).
Dog Sniffs:  U.S. v. Place
 
Court says no.Dog was only sniffing from the outside, less intrusive.The information you get from the dog is unique because it either tells you there’s a drug or not. Binary Search – can’t tell you anything legitimate, simple yes or no, doesn’t’ count as a 4th Amendment search
Court says don’t have constitutional right to keep your drugs secret.Only legitimate expectations of privacy of legal items.
Doesn’t get any info other than if you are carrying illegal contraband.
Illinois v. Caballes
Search in theory gives cops the right to look into things that cops would have to get a warrant for because dogs are prefect – false positives.