Criminal Procedure Outline - WordPress
Criminal Procedure OutlineI.Introduction to Criminal Procedurea. Investigation and prosecution of criminal casesb. Source of Law US Constitutionc. Supreme Court turned Procedure into Federal Lawi. Process was not protecting citizens in some statesth thd. 4 , 5 , and 6th Amendmentse. State / US Constitution governs criminal proceduref. Appealsi. Direct appeal is the appeal by rightii. Then get appeal on habeas collateral attack on conviction because of constitutionalviolation during trialiii. Federal Habeas – warden gets sued in habeasg. Powell v. Alabamai. Black man accused of rapeii. Court assigned entire bar as counsel and he was convicted after 1 day of trialiii. Argued denial of counseliv. Had no right of counsel during procedural / discovery stageh. Bill of Rightsi. First 10 amendmentsii. Class about 4th, 5th, and 6thiii. Incorporate applying to State’s under the 14th Amendment1. Applies certain parts of Bill of Rights to Statesiv. Federalism – State’s should have own powers and Federal government can’t force theState’s to do certain things.1. Judiciary vs. legislature making the decision whether the Bill of Rights appliesv. Supreme Court did not believe State legislature would treat people fairly so it gotinvolved in Criminal Procedurei. Duncan v. Louisianai. Wanted trial by jury but State refusedii. Doesn’t have common law but he has civil law insteadiii. Supreme Court says right to trial by jury is fundamental1. Whether right is fundamental to the American Scheme of justice2. 6th Amendmentiv. Justice Black – all Bill of Rights are incorporatedv. Certain rights have not been incorporated yetvi. Good practice to make argument under state constitution because it generally providesgreater protection than federal constitution.j. Retroactivityi. Supreme Court decisions apply now and gong forward1. Exceptionsa. 1) placing a matter beyond the reach of criminal lawi. No longer a crimeb. 2) Watershed Decision
i. changes the way we think about application of the law (highlyunlikely)k. Right to Counseli. All stages of criminal defenseii. Becomes even more important before trialiii. No right to Counsel at habeas hearingiv. Gideon v. Wainwright1. Right to counsel applied to States2. Denied counsel by florida3. Right by appointment of counsel at all stages of trial4. 14th Amendment – States can’t deny federal rights5. Cannot be assured of a fair trial w/o an attorney6. A good lawyer makes a differencethl. 4 Amendmenti. Right of people to be secure against unreasonable searches and seizuresii. Issues – is warrant required? Or is it a reasonableness argument?iii. “Shall not be violated” – reasonableness clause1. Dominant argument is requirement of a warrant2. Road block reasonableness ideaiv. Reasonableness clause v. warrants clause1. Issuesa. What is reasonable?b. What is probable cause?c. What is protected? (papers, effet, etc) tangible evidence?d. What is home?e. What is a search?f. When is something seized?g. Particularity?h. Who are the people?i. From whom / by whom?j. Where is protected?k. How secure? What is a search?l. Is a warrant always required?m. What is the remedy for violation?m. Constitution of Michigani. Additional sentence but is invalid as in conflict with the US Constitutionn. Who are the People?i. Don’t know if applies to US citizens outside of the countryii. Probably doesn’t apply to non-citizens in foreign countriesiii. Applies to non-citizens living in US1. Regardless of immigration paper statute2. Protects a person who is hear voluntarilyiv. Drug lord arrested in Mexico – 4th amendment does not apply because he never chose tobe among the people – non-citizen not in US
II.v. To be “of the people” must have developed sufficient connection with the country to bepart of the countrytho. 4 Amendment Hypoi. Only applies to government officialsii. Actions of landlord are not coverediii. Doesn’t apply to stuff stolen from your apartment that ends up w/ the policeiv. Landlord directed by police is a state actorv. Protects against state actions which could include private citizens acting on the part of thestateDefining a “Search”a. Katz v. United Statesi. Electronic surveillance device placed on outside of phone booth to listen to petitioner’sconversationii. Could only hear petitioner’s part of conversationiii. Device was limited in scope & durationiv. Whether listening to the conversations constituted a search under the 4th Amendment?v. United States argued eavesdropping is not covered because it is not tangible evidence1. Olmstead – no physical penetration2. Cannot seize intangible itemsvi. Expectation of privacy in the phone boothvii. Yes, it was a searchviii. People could see him but he was not ready for public listeningix. No warrantx. Protects people and not placesxi. Underpinnings of Olmstead have been so eroded by subsequent decisions that it shouldbe overruled.xii. Court says it is a search1. Protects people and not places2. Phone booth has “reasonable expectation of privacy” so search w/o warrant isunreasonable.xiii. Harlan concurring – 1) an actual expectation of privacy, and 2) an expectation thatsociety recognizes as reasonable1. Factors around treatment of phone booths are relevantxiv. Harlan’s Test for Identifying a Search1. An actual expectation of privacy2. An expectation that society is prepared to recognize as reasonableb. Nash Casei. Not a search because no expectation of privacy in that boxc. Oliver v. United States (Open Fields Doctrine)i. Marijuana was being grown on Oliver’s propertyii. Officers went behind a gate w/ a no trespassing signiii. Is it a search to go onto property to search “open fields”?iv. “effects” is less inclusive than propertyv. Field is not intimate to the home
d.e.f.g.h.i.vi. Dissent – one property right is exclusion and officers violated law by trespassing. State isintruding on private propertyvii. Rule – no reasonable expectation of privacy in an “open field”1. Katz does not apply to open fields.Generally Speakingi. Federal actor in federal court – Oliver appliesii. State actor in state court – state protection appliesiii. Federal actor in state court1. Usually still Oliver2. Michigan accepts Oliver caseUnited States v. Dunn (curtilage test)i. Concluded the barn lay outside the curtilage so it was not a searchii. Not in the open field – always within curtilage1. If within curtilage then it is arguable 4th Amendment appliesiii. Dissent – Barn is within curtilage; within intimate activities of the houseiv. Pg 43 – 44 the 4 curtilage factorsDunn hypothetical (People v. Hudson)i. Dunn factors show the patio is in curtilageii. Harbors intimate activities of the houseCalifornia v. Ciraolo (1,000 ft fly over by plane)i. Area search by 1,000 ft flyover is within curtilage and court determined it did not violatethe 4th Amendmentii. Harlan Test1. Actual expectation of privacy because of the fence2. Not an expectation that society provides as reasonablea. Was showing off roof to anybody flying overiii. Issue – whether naked-eye observation of the curtilage by police from an aircraft lawfullyoperating at an altitude of 1,000 ft violates an expectation of privacy that is reasonable1. Any member of public could fly in plane and see the yardDow Chemical Hypoi. EPA got airplane and flew over property1. Standard precision air mapping camera2. Technology generally available to the public so not a violationa. Not a violation to merely enhance visionFlorida v. Riley (green house within curtilage and helicopter fly-over)i. Greenhouse was part of same enclosed area and part of the curtilageii. Helicopter flew over at 400 ft and saw through 2 panels in the roof to marijuana growingincisediii. Greenhouse is covered and sides of house were obscurediv. Not a matter of FAA regulationv. Helicopter is not as frequently occurring and not as readily available to members of thepublicvi. Court finds it was not a search but no majority opinionvii. Dissent – prosecuton should have to show that helicopters regularly flying over ataltitudes of 400 ft – is expectation of privacy reasonable?
j. Backyard Hypoi. Hasn’t put lid on yardii. No reasonable expectation of privacyiii. Enhancing human characteristics is not a problemk. Kyllo v. United States (thermal scanner case)i. Scanned home w/ thermal image from the streetii. Used utility billsiii. Court says it is a searchiv. Homes are different1. Thermal image used to look into someone’s homev. If knowingly exposed to public then no 4th Amendment protectionvi. Thermal images are not publicly availablevii. By obtaining through sense enhancing technology details about interior of a home thatcould not be obtained w/o the device is a searchviii. Dissent – distinction based on facts, information is about outside of the home and notabout interior.1. In criminal procedure facts are the law2. Use of technology should not be limited to the homea. Too broad or too narrow?b. Category of technologyc. Worried about future problemsl. United States v. Jonesi. GPS on car and tracked car for 28 days.ii. Warrant was for DC and 10 days but it was installed on 11th day in Maryland.iii. Whether the GPS device on the vehicle and monitoring the device are search within the4th amendment?m. California v. Greenwood (Searched trash for evidence)i. Police searched trash for evidence of narcotics useii. Found evidence and entered home finding durgsiii. Searched trash againiv. Is it a search?1. No actual expectation of privacy because exposing to public2. Not an expectation society recognizes as reasonablev. No expectation of privacy in something you are giving awayvi. Rule – no actual expectation and no reasonable expectation of privacyvii. Dissent1. Could not have searched bag if carried so why should they be able to search thenat the curb2. Decision to discard does not get rid of expectation of privacyn. Greenwood Hypoi. Valet garbage service where trash was within the curtilage and police entered property totake trashii. Court said it was a searcho. United States v. Knotts (beeper used to track outside the home)i. Beeper attached to chloroform prior to purchase by defendant
Beeper was used to follow drum to defendant’s cabinWhether or not using the beeper constitutes a search?Could not have done what they did w/o the beeper—enhances police abilityDefense argues there should be expectation of privacy beyond that what can be watchedCourt says it is not a search1. 24 hr surveillance is fine and a beeper is the same2. Beeper got to outside of his cabinUnited States v. Karo (beeper used to track inside the home)i. (read whole opinion in karo)ii. Beeper used to track ether inside the houseiii. Court says it was a searchiv. Knotts could all be watched visually and was only on public roadwaysUnited States v. Whitei. Used radio transmitter on an agentii. If actions do not invade then simultaneous recording does not invade1. Knowingly exposed information to his companionSmith v. Marylandi. Whether use of pen register is a search?1. Court says it was not a search because #’s dialed are voluntarily conveyed to a 3rdparty, the telephone company2. Installed a pen register and police obtained a warrant to search the home as aresultii. No search according to the court1. Conveyed #’s to a 3rd party2. Only limited information obtained by the 3rd party3. Possible argument – messages over phone are transferred to company just like #’sareOtheri. Need to understand what the fight is in Jonesii. Scalia – doesn’t matter what Katz says because there is a trespass of a kind that counts1. Trespass & attempt to find informationiii. Hard case because Knotts & Karoiv. Knotts would be relevant if it was only public informationv. Beeper was in possession of 3rd party firstvi. Scalia1. This car was not an open field2. GPS attached to private car and tracked it for two weeks3. Katz test cannot support a search in this instance4. Does not deviate that mere visual observation is a searchvii. There is no precedent for the proposition that whether a search has occurred depends onnature of crime committedviii. The attachment is not the violation in this caseix. Technical trespass followed by gathering of evidence is a search1. Trespass based rule was criticizedIllinois v. Cabellesii.iii.iv.v.vi.p.q.r.s.t.
III.i. Use of dog is not a search generally1. May use dog w/o any suspicion2. Dog may give rise to suspicionProbable Causea. Amount of evidence police must have before taking certain actionsb. Works to get warrant & excuse a warranti. Question of probabilitiesii. Less than 50%1. What is it?2. How do we evaluate it?c. Probable cause can’t work w/o a reasoni. To arrest? To search? To get a warrant?1. Probable cause to do what?d. How many facts add up to probable cause?e. Draper v. United statesi. Narcotics agent got information from informantii. Man would get off plane w/ tan bag, raincoat, slacks, and walk really factiii. Officer stopped and arrested the man meeting the description1. Was there probable cause?2. Arrest and search were lawful by the courtiv. Probable cause by the informant because of level of detail and reliability of the informantf. Illinois v. Gatesi. Anonymous letter describing drug activity where husband flies to Florida and drives backto Illinoisii. Searched car and home and found drugs and gunsiii. Gates won in Illinois—search unlawful—affirmed the lower courtsiv. Supreme Court reversed saying there was probable cause1. Facts add up to probable cause2. Informant had facts right except that woman and man drove back togetherv. Aguilar & Spinelli1. Made it difficult to use anonymous informantsa. Veracity of informantb. Reliabilityi. Background and where information came from; nature ofinformationvi. Totality of circumstances (look at everything)vii. Substantial basisviii. Fair probability1. Practical common-sense decisiona. Use cases to prove it upix. Magistrate issued warrant1. Had substantial basis and fair probability2. Including whether evidence of wrongdoing should be uncovered3. Substantial deference should be given to trial court but review is technically denovo
g.h.i.j.k.l.x. Gates if very permissiveProbable Cause Hypoi. Anonymous, where Draper was a well-known informantii. Not as much corroboration as Draperiii. Court found no probable causeMaryland v. Pringlei. All 3 men in car were arrestedii. Court says there was probable cause to arrest all of themDevenpeck v Hilfordi. Don’t have to tell defendant what the crime is—no need to identify crimeBasics of Probable Causei. Fair probability / substantial basis – Gates Caseii. Cannot be a hunchiii. Less than 50%iv. Based on totality of circumstances1. Reliableness and truthfulness and basis of knowledgeProbable Cause Hypo #2i. No description of defendant; know nothing about the informantii. Prior experience w/ the individuals; car registered to someone who lived at residenceiii. Under totality of circumstances the informant was sufficiently corroborated for probablecause to existCanine Casesi. Florida v. Harris (yes dog sniff can give probable cause to search)1. Can a dog sniff give probable cause to search vehicles?a. Old rule – dog sniff signal is probable cause to search2. Argued dog was picking up false positive so there was not giving probable causebecause of lack of reliability3. Court says don’t need dog to be that accuratea. Probable cause is less than certainty4. Enough for fair probability that a reasonable person would believe there wascriminal activity afoot5. Be cautious when considering the reliability testing of the dogii. Florida v. Jardines1. Majority uses Jonesa. Trespass w/ intent to gather information is an unlawful search2. Concurring – Katx privacy issues apply3. Jones – trespass on the vehiclea. May go up to the front door but could not go up and down front of house4. Officer walked up to front door based on implicit licensea. But exceeded license by deploying dog along front of hours w/ the 6 ftleash5. Concurring using enhanced technology to invade the reasonable expectation ofprivacya. Actual expectationb. Reasonable expectation
IV.6. Dissent dog could be there and the dog smelled so no violation7. Old law is use of dog is not a searcha. Can use based on reasonable suspicion or no suspicionThe Warrant Requirementa. Memorize elements of a warrantb. Know the warrants clausec. Some justices don’t believe in the warrant requirementd. Davidson Warrant – search homei. Need probable cause to believe there is evidence of the crime in the homeii. o/s warrants and found dead body so left and got search warrante. Boyd Case – search bodyi. 2 witnesses suggest Boyd was involvedii. Probable cause to search Boyd who is an inmatef. Probable cause to do somethingi. Probable cause to believe evidence is located in the place to be searchedg. Magistrate must be neutral and detachedi. Cannot also be a police officer because officer is not neutralii. Bias must be extra-judicialiii. Under normal circumstances we will assume the judge is neutraliv. Test is not actual bias but appearance of bias and evidence of bias is so substantial1. Too much prejudicev. Magistrate – evaluate evidence in as neutral a position as possible to determine ifprobable cause existsvi. Scope of search is limited by particular1. If warrant for house then cannot look in barn2. Limits actions of officersh. Andersen v. Marylandi. Fraudulent real estate transactionii. Defendant said terms in warrant were too broad because of permission for “other crimes”1. Court says crime is the one of false pretense in certain case and limited searchedshowed the “other crimes” term was not overly broadiii. The particular requirements are sufficient because of the nature of the crimeiv. Nothing should be left to the discretion of the officer executing the warrant.v. Courts are tolerant of generality if objects to be seized cannot be as specificallydescribed.i. Groh Casei. Civil rights caseii. Should have incorporated affidavit in warrantj. Hypoi. Okay because judge signed affidavit as well as warrant1. Always get the judge to sign bothk. United States v. Grubsi. Excepting delivery of contraband so got “anticipatory warrant” that was valid aftermaterial was deliveredii. Conditions must be met for the probable cause to exist
l.m.n.o.p.q.r.iii. 4th amendment does not require probable cause to be stated in the warrantiv. Magistrate knows extent of authority but home owner does not1. No duty to provide home owner w/ the warrant but it is better to inform themv. Search warrants have to be executed within a time period but arrest warrants do not needto beTreatment of Other Peoplei. Moehler v. Mena (Others may be detained during warrant)1. Civil law suit by Mena for civil rights violation2. Mena is at house where police had warrant & SWAT team entered3. Mena was detained and handcuffed during search4. Duty to bystanders during warranta. Police have to be reasonableb. Reasonable force / detention; asking questions is not additional procedureWilson v. Arkansas (Knock and Announce)i. Had warrant and entered w/o knocking and announcingii. Was search reasonable if they did not knock and announceiii. 4th Amendment says “reasonable” so looks to Common Law to get meaning of“reasonable”iv. Does reasonableness require a knock and announce?1. Yes, it doesv. Different because there was a warrant so what does 4th Amendment require when awarrant is present?vi. No exceptions to knock-and-announce rule will applyvii. If reason to believe that evidence would likely be destroyed if advance notice were givenRichards v. Wisconsin (no blanket knock and announce rule)i. Is blanket no-knock rule for felony drug cases constitutional? –Noii. Officers did not knock and announceiii. Exception to knock and announce1. Reasonable suspicion that knocking and announcing would be dangerous, futile,or evidence would be destroyed.United States v. Banksi. Was 15-20 second wait long enough before forcible entry?ii. Wait was long enough to believe that any further wait would ha
Criminal Procedure Outline I. Introduction to Criminal Procedure a. Investigation and prosecution of criminal cases b. Source of Law US Constitution c. Supreme Court turned Procedure into Federal Law i. Process was not protecting citizens in some states d. th4 , 5th, and 6th Amendments e. State / US Co
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