Select Page

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

Criminal Procedure Taylor Fall 2016

Failures of Process

Barrington v. Missouri (1907): Defendant got beaten in a sweat-house to give a confession. He appealed his conviction but the Supreme Court held that it was a state matter. – In conflict with Bram.
Bram v. United States (1936): “any degree of influence” makes a confession inadmissible – as a matter of federal law

Investigation Failure:

Brown v. Mississippi (1936): no evidence besides forced confessions (and no question that beating happened)

Defendant argued that the conviction should be overturned because he was coerced into confessing

State argued that the 5th amendment didn’t apply and that the defendant should have renewed his objection

Supreme Court: held that the DP Clause of 14th Amendment incorporated the right within its’ terms – finding that the time period showed blatant racism in this case.

Trial Failures:

Powell v. Alabama (1932): “Scottsboro Boys” – 9 boys accused of rape with no real evidence except for the victim’s statements.

No counsel for most of pre-trial — All boys ultimately got counsel but it was right before the trial began – The Judge appointed the entire Bar at first, knowing that none would jump on the opportunity
Supreme Court: focused on the denial of counsel—saying what the defendants were given (in terms of counsel) was deficient.

Any attorney would need time to prepare for trial – and the boys could have found their own attorneys.
Uses Due Process Clause in 14th but still doesn’t talk about 6th amendment right to counsel.
Aid of counsel is a necessary requisite of Due Process of Law

Norms of Criminal Process:

Security v. liberty/property (police issues generally dealt with by Court)
Fairness / Limited Government

**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.


The Bill of Rights originally applied only to the federal government (14th, sec 1)

FOUR QUESTIONS: regarding extending constitutional criminal procedure protections to protect citizens against state intrusions.

What part of the 14th amendment?

Privileges and immunities or Due Process?
Slaughter House Cases: historical background (^)—read the 14th amendment P&I as solely about protecting immunities of “national citizenship” – rights that one could not have against a single state

When Bill of Rights was incorporated – it was done through DPC

Incorporation of 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 is “incorporated” must incorporation be “jot for jot”

Does all federal “bag and baggage” go along

Duncan v. Louisiana (1968): vehicle for discussing theories of incorporation

Court found that 14th amendment does apply during a jury trial for simple assault. (Jury trials are for jail able offenses)
“Incorporation Debate” – Four Views

Total Incorporation (Black) of the Bill of Rights but nothing beyond (with jot for jot view)
Total Incorporation Plus (Douglas): all of the Bill of Rights plus un enumerated rights à jot for jot
Fundamental Fairness (Harlan): not necessarily all of the Bill of Rights – Due Process stands on its own body—but open to un enumerated rights à NOT jot for jot
Selective Incorporation: (White—MAJORITY): some of the bill of right — ?? about un enumerated rights à jot for jot


“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 on 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: preceding language
Warrant Clause: latter half of the amendment

4th amendment only applies/limits governmental action

The Birth of the Exclusionary Rule:

Weeks v. United States (1914): local police go in and find papers(lottery) – then turn them over to the US Marshall – then US Marshall goes back to ∆ house (**all without warrant**)

Court decided that police violated the law (4th amendment) – and the remedy was to exclude the evidence
To have a fair trial – we assume all the evidence would/will be obtained in a lawful way

Exclusionary rule only applied to federal law enforcement actors (NOT to state level officials)

Wolf v. Colorado (1949):

Does the 4th amendment apply to state actors??

YES – 4th amendment is incorporated as implic

ANALYSIS: (Blackmun)—minimally intrusive means – no communication can be heard by pen register (only shows numbers dialed)

No expectation of privacy when you dial numbers (subjective)
No reasonable expectation of privacy (objective)
HOLDING—pen register is not a search

Dissent (Marshall): the assumption of risk implies a choice

United States v. Place (1983): “dog sniffs” – Binary Search (0% chance you could learn facts about what is in side)

Dog Sniffs – NOT A SEARCH – lack of intrusive means (can only tell you if there is illegal contraband in the trunk—which is unique)

Illinois v. Caballes (2005):

Justice Souter says drug dogs are not perfect and open cops up to info that would be legitimately protected

Florida v. Jardines (2013): dog sniffing meets home. (explained later)
Hester v. United States (1924): “open fields doctrine”
Oliver v. United States 1984): ∆ placed a no trespassing sign on property where he was growing marijuana

Police ignored the signs and found the marijuana W/OUT a warrant
Court held that entry of open fields is a “search” within the post-Katz reasoning

Asserted expectation of privacy is not one which society recognizes as reasonable

United States v. Dunn (1987): Curtilage Factors:

Proximity of the area in relation to the home
Whether the area included within an enclosure surrounding the home
Nature of uses to which area is put
Steps taken by resident to protect area from observation

California v. Ciraolo (1986): anonymous call reporting marijuana being grown — ∆ had build fences to hide

Police go up in helicopter – 1000 feet above and observe the marijuana being cultivated
NOT A SEARCH—no expectation that officers will shield their eyes when driving by (or flying above)

Florida v. Riley (1989): partially open greenhouse seen by helicopter from 400 feet above