Criminal Procedure
Swedlow
Michaelmas Term 2013
Federalism: A balance of State courts and federal courts to co-exist.
Incorporation: Process by which provisions of the Bill of Rights are applied- via the 14th amendment-to the states.
Two Views:
-Total Incorporation- Bill of rights should be applied wholly to the states.
-Selective Incorporation- Individual case of applying the bill of rights selectively.
Duncan v. Louisiana (p.27) Federalisim
– Whether the 6th amendment should be applied to the state courts or the federal courts.
– Starts with the common law, constitutional rights at the time the constitution was formed, and the continuing support of jury trial.
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.”
I. Method #1 Fourth Amendment Analysis
Three Preliminary Questions
1) Is the evidence received being used against the defendant by the State in its case-in-chief?
a) If no evidence is being used against the defendant in the State’s case-in-chief, then end of analysis.
b) Issue will rarely show up in exam land
i) But, always something to always watch for
2) Did a state actor perform the objected-to activity?
a) If no state actor, then end of analysis
b) Issue will rarely show up in exam land
i) But, always something to always watch for
3) Does the defendant have standing to make a challenge?
a) If no standing, then end of analysis
b) Defendant does not have “automatic standing”
i) TEST:
(1) Person claiming standing must have: “legitimate expectation of privacy in item searched or seized” RAD
(2) Examples
(a) Standing
(i) Overnight guest has standing
(ii) Resident grandson in grandmother’s house
(iii) Apartment tenant has standing
(b) No standing
(i) Guest whose purpose of visit is commercial
(ii) “Mere passenger” in car
(c) May have standing
(i) Claimed ownership (here just argue both sides)
Three Primary Questions
1) Was there a search or seizure?
2) Was the search/seizure reasonable or unreasonable?
a) Warrant?
i) Properly obtained, properly executed, and/or good faith
b) No warrant?
i) Is there a legitimate rationale for the warrantless action? (Exceptions)
3) If search/seizure unreasonable, what is the remedy? (Suppression of the evidence)
Exclusionary Rule (Mapp v. Ohio):
1) Mandates suppression of evidence at issue from state’s case-in-chief. (Primary case)
a. Designed to:
i. Promote judicial integrity
ii. Deter police misconduct.
b. Judicially crafted rule.
2) All evidence obtained by searches and seizures in violation of the Constitution (4th amendment) is, by that same authority, inadmissible in a state court.
Method #2
1) Look to the area searched as a way to group the exceptions
a) Car?
b) Home?
c) Business?
d) Person?
Search
I. Definitions of a search (Katz & Jones) Two Tests in determining if there is a search:
II. Katz v. United States (1967) – “ Defendant must have ‘exhibited actual (subjective) expectation of privacy . . . that society is prepared to recognize as reasonable’”
Examples where “REP” has been found under Katz
a. “Person, house, papers, and effects”
b. Curtilage
c. Thermal imagers/heat from home
d. Use of electronic tracking devices (but note Jones)
e. Carry-on luggage squeezed by government agents
Examples where No “REP” has been found under Katz (Not a search)
a. Open fields (Oliver v. United States)
b. Abandoned garbage (California v. Greenwood)
c. Aerial surveillance of curtilage (Florida v. Riley Helicopter)(California v. Ciraola Airplance)
d. Statements made to undercover agents/false friends (Hoffa v. US)
e. Pen registers (Smith v. Maryland)
f. Use of electronic tracking devices (but note Jones) (US v. Knotts)
g. Dog sniffs to detect the presence of drugs in a public place (US v. Place) (Illinois v. Caballes)
h. On-site chemical test used in public place (U.C. v. Jacobsen)
III. US v. Jones (2012) – “Where . . . the Government obtains information by physically intruding on a constitutionally protected area, . . . a search has undoubtedly occurred”
1. “Installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, c
ially if the product of the use of a device is not available to the general public.
When litigating, can we call up the informant to be a witness to challenge there veracity?
Seizure & Probable Cause:
1. Seizure occurs when individual is either physically detained or submits to authority
– California v. Hodari D. (1991)
– Note: Look for intentional contact by police Brower v. County of Inyo (1989)
2. Seizure occurs when reasonable person would not feel free to terminate the encounter with police
– Florida v. Bostick (1991); U.S. v. Drayton (2002)
Probable Cause
3. Fair probability that…
· … a crime as been committed and the person to be arrested/seized committed that crime (seizure)
· … certain items are the fruits, instrumentalities or evidence of crime and that these items are presently to be found at a certain place (search)
• Fluid concept, assessed by totality of circumstances
– Gates v. Illinois (1983)
Obtaining Probable Cause:
• Can come from any source (e.g., anonymous tip, officer’s observations, witness/victim’s statement, etc.)
• Where probable cause is based on third party’s statement
– Predictive detail, known to one intimate with the criminal activity, will be important
• Alabama v. White (1990)
– Detail that could be observed by anyone, standing alone, not enough
• Florida v. J.L. (1990)
– No “bald and unilluminating” assertions
• Spinelli v. U.S. (1969)
– Look to basis of tipster’s knowledge and veracity of tipster
• Aguilar v. Texas (1964); Spinelli v. U.S. (1969); Gates v. Illinois (1983) (incorporating A/S test within TOC assessment); Massachusetts v. Upton (1984)
• NOTE: Even if tip does not form PC, police may still investigate based on tip!
