CRIMINAL PROCEDURE
PROF. DIEHM – FALL 2010
House Searches
Peyton v. New York – Arrest Warrant
Search Warrant – Illinois v. Gates
Kirk v. Lousiana – Exigent Circumstances
Schneckloth v. Bustamonte – Consent
Vehicle Searches
Ross/Acevedo – Probable Cause
Arizona v. Gant – Incident to arrest
Colorado v. Bertine – Impound inventory
Schneckloth v. Bustamonte – Consent
Michigan v. Long – Frisk of car for weapon with reasonable suspicion
Illinois v. Gates – Search Warrant
Person Searches
Chimel v. California – Incident to arrest
Schneckloth v. Bustamonte – Consent
Terry – pat down with reasonable suspicion
Chronology of a criminal case
Arrest
Complaint
i. Charging document
Initial appearance
i. Where defendant is advised of rights
Bail hearing/motion
Preliminary examination
i. A hearing to determine if there is probable cause that the defendant committed the offense
ii. Hearsay is admissible
Grand Jury
i. Only required in federal court
1. Guaranteed in the 5th amendment
2. 23 jurors, you only need 12 to indict
3. Two types
a. Indicting – only meet to indict
b. Investigative
i. Can issue subpoenas without explanation
ii. Nationwide service permitted
iii. Can subpoena records, people, fingerprints, line-up, ect.
iv. The only thing that stops a witness from testifying is privilege
1. Spousal, attorney/client, self incrimination
2. If self-incrimination privilege and want to compel
a. Plea deal
b. Immunity
3. Types of immunity
a. Transactional – no longer used
b. Use
i. Basically means we won’t use what you say against you or anything we learned from that
ii. Approved by the Justice Department and ordered by the court
iii. If you still refuse to testify you go to jail
iv. Not immune from perjury
v. I don’t remember is perjury
v. Grand Jury in controversial because people think it inhibits personal rights
vi. Hip-pocket immunity – give you a letter for local area
vii. Never let your client volunteer to go in from of a grand jury if he is the target
viii. When indictment comes out and charges were made there, these are Grand Jury Originals
ix. When charged a Bench Warrant is issued
1. Then you go to:
a. Arrest
b. Initial appearance
c. Bail hearing
Arraignment
i. When you appear in court to plead
1. Plead not guilty
2. Waive reading of indictment
3. Demand a jury trial
Discovery
Motions
i. Usually speedy trial, venue, or suppression
ii. Suppression
1. Physical evidence
2. Statements
3. Identification
Possible Plea
Trial
Appeal
Post conviction relief.
Search and Seizure
The Fourth Amendment
i. New Jersey v. T.L.O., U.S.
1. To conduct a search, schools must have reasonable suspicion that a student has broken the law or a school rule.
The Development of the Exclusionary Rule
1. Note
a. The exclusionary rule only applies to illegal conduct by the government
i. If a private individual, not acting as an agent of the government, searches and give the evidence found to the police it can be used
b. Between Weeks and Mapp the Silver Platter Doctrine prevailed
i. The Feds would develop information and local police would use it for an unconstitutional search
ii. Feds would do the search and take the information to state courts for state charges
2. Weeks v. United States (U.S. 1914)
a. Rule: In federal trial the 4th Amendment bars the use of evidence unconstitutionally seized by federal law enforcement officers
b. This case created the “exclusionary rule”
i. If the search is illegal the evidence cannot be used
ii. Application is made at a suppression hearing
c. House was searched without a warrant for lottery crimes
d. The USSC said that the 4th amendment does not apply to states so evidence could be used state courts
3. Silverthorne Lumber v. United States (U.S. 1920)
a. Rule: Evidence obtained by an illegal search,
e
b. A search of a house was conducted without a warrant and pornography was found.
c. The appeal was on the constitutionality of Ohio’s pornography law and the court ruled on exclusion
d. This requires states to apply the U.S. Constitution.
e. Only 4 justices voted to apply the 4th amendment. One voted to apply the 5th Amendment.
f. Retroactivity
i. Traditionally the Supreme Court decisions just explain what the law has always been so in theory Mapp should have been retroactive.
1. In order to not open up prison doors the Supreme Court only applied Mapp to cases pending on direct appeal at the time of the decision and future cases.
9. One 1958 Plymouth Sedan v. Comm. Of PA (U.S. 1965)
a. Rule: The 4th Amendment applies to forfeiture actions
b. 2 liquor control agents stopped a car because the rear end was sitting low. Inside they found liquor without PA Tax stamps
c. PA tried to take the Plymouth in a forfeiture action. Because the stop was illegal they could not use the info from the stop to forfeit the car
d. You do not have to give contraband back
10. Bivens v. Six Unknown named Agents of the Federal Bureau of Narcotics (U.S. 1971)
a. Rule: A person can sue in an action in torts for violations of the 4th Amendment.
b. These are known as Bivens Actions if the tort is by a federal agent.
c. They are known as 1983 actions is the actor is a state agent
d. A victim of an illegal search sued the government for damages. The Supreme Court said the complaint alleged a cause of action under the 4th Amendment directly.
11. 3 theories for using the exclusionary rule (pages 59-61)
a. Personal Right Theory
b. Judicial Integrity
c. Deterrent Theory
