Professor Kathy Swedlow
Criminal Procedure
Trinity 2010
WEEK 1
Supervisory powers: Grounded in Article III: have been interpreted to mean that the U.S. Supreme Court is in charge of the lower federal courts. If the Supreme Court doesn’t like something that the lower courts are doing they can still tell them what to do.
U.S. Constitution Article III §1:
· Former Chief Justice Rehnquist, “The law in this area is clear. The court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals.”
o Dickerson v. United States 2006
The U.S. constitution: by its terms was to restrict federal actors from interacting with states citizens.
Incorporation: Is a process by which provisions of the bill of rights are applied- via the fourteenth amendment- to the states. Duncan v. Louisiana (1968.) ßThis case is used to see how incorporation is an important to the U.S. Constitution. This has two views:
· Total incorporation: The entire bill of rights should be applied to the states.
· Selective incorporation: Justices in the supreme court who believed the court should cherry picks and look to a certain amendment when it is needed.
4th Amendment
Focuses on REASONABLENESS!!
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure, shall not be violated and no warrants shall be issued, 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.”
4th Amendment Analysis: How to ATTACK 4th Amendment Fact Patterns!
Three Preliminary Questions: Address these first. If you answer, NO, to any of the questions you must stop your analysis!!
i. Is evidence being used against the ∆ by the State in its case-in-chief (prosecutors primary case against the ∆)?
a. If we do not have any evidence, then we do not have a 4th amendment problem!!!
ii. Did a state actor perform the objected activity?
a. State Actor: Police officer, undercover agent, public school teacher.
iii. Does the ∆ have standing (person who is facing an injury) to make a challenge?
Three Primary Questions:
i. Was there a search or seizure?
Where can we find a REP: Always go back to the Constitution, Person, houses, papers and effects.
1. SEARCH
a. Two-part Test: Katz (1967): Justice Harlan, concurring.
i. Did the person exhibit an actual expectation of privacy? (Subjective)
ii. Was the expectation one that society is prepared to recognize as objectively reasonable? (It is not enough that the person believes he is acting in private, his belief must be deemed reasonable.) (Objective: always runs into problems here…what would a reasonable person think in this circumstance?)
b. What would constitute a search?
i. Area inside your home and curtilage (4 factors to determine curtilage: Swedlow doesn’t care if we know these.)
a. The proximity of the area claimed to be curtilage from the home
b. Whether the area is included in an enclosure surrounding the home
c. The nature of the uses to which the area is put
d. The steps taken by the resident to protect the area from observations by passerby’s.
ii. Squeezing a bag
a. We expect people to move our bags on buses and planes, but not squeeze them. Bond v. U.S. (2000)
iii. GPS device: that tracks things that have been brought inside a person’s home. (It tracks things not observable to the naked eye once inside the person’s home.) (U.S. v. Karo (1984) (U.S. v. Knotts (1983). NOTE: Keep in mind, GPS devices are good and bad…You must look at what they are transmitting and how long they are transmitting for.
a. Thermal Imaging Device
b. Phone booth (Katz)
c. What would NOT constitute a search?
i. What a person knowingly exposes to the public even in his own home or office is not subject to 4th amendment protection.
ii. Disclosures to a 3rd party
iii. Garbage put on the curb
iv. Open field doctrine:
a. Even if there is a “No Trespassing” sign, if a PO goes into an open field, that does NOT constitute a “Search” but it is a trespass.
b. WHY? “Open fields do not provide the setting for those intimate activities that the 4th amendment is intended to shelter from government interference or surveillance.” Also, society would not see this as needing a Reasonable expectation of privacy.
v. Flying above a house
a. CA v. Ciraolo (1986)(Airplane); FL v. Riley (1989)(Helicopter) Where police observations are made from a location to which the public has lawful access (from air or ground), the viewing of otherwise protected areas may not implicate the 4th amendment.
VI. Dev
he Warrant Clause Prohibits: (1) Magistrate shopping, (2) the magistrate cannot be working on a contingency and (3) they cannot be part of the investigation. However,
b. The Warrant Clause requires that: The magistrate must be (1) neutral and detached and (2) capable of assessing whether or not we have PC. The magistrate does not need to be a lawyer, but they need specific training to understand PC. U.S. v. Chadwick (1977)
2. Oath or Affirmation is needed
a. In the form of an affidavit or statement from the PO.
3. Particularity Requirement: “…No warrants shall issue, but upon PC, supported by oath or affirmation, and particularly describing the place to be searched.”
i. Must describe with particularity what the PO wants to Search/Seize. This prevents government intrusiveness and police misconduct. In general, look to see if the PO’s have been “objectively reasonable” under the circumstances. MD v. Garrison (1987)
a. Fluid Concept: must be as particular as possible
b. The PO does not need to be 100% accurate because they didn’t have an investigation to obtain the particular information
c. The warrant gets the PO in the door to further investigate
d. Remedy for improperly obtained warrant: If the person who is subject to the warrant (the ∆) can prove that the warrant was absolutely bad then the evidence could be suppressed. It is very hard to prove a Franks Violation. (Franks v. DE (1978.)
i. Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment, as incorporated in the Fourteenth Amendment, requires that a hearing be held at the defendant's request. ß Franks Violation.
