CRIM PRO Final Outline PDF

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Outline for criminal procedure investigations- mix of textbook and class notes...

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CRIMINAL PROCEDURE 2021 4TH AMENDMENT INTRO AND HISTORY BACKGROUND ● Federal gov used to be feared- fear of gov and abuse of power ○ Then states replaced fed gov as principle threat to liberty and privacy with Bill of Rights ○ State courts often permitted techniques that would not be permitted by federal officers- Bram v US ● Criminal procedure: what this course basically is ○ federal constitutional rights of suspects ○ Constitutional limits on what the federal and state gov can do when it investigates people ● Qualified immunity ○ When people can sue the police ● Themes: ○ Anti tyranny/limited gov: ■ Brown v mississippi ○ Fairness ○ Efficiency, clear rules ■ When SC announces rule for police ● Want it to be easy to understand and clear but also take into account some nuances ■ Federalism - sometimes more efficient for states to decide ● Most cases we read are limits on states rather than federal ○ Accuracy- comes up with exclusionary rule

INVESTIGATION FAILURES: Brown v Mississippi The Due Process Clause of the Fourteenth Amendment requires that state action be consistent with fundamental principles of liberty and justice.- Confessions induced by violence are not consistent with the Due Process Clause and such evidence is therefore inadmissible at trial. Severe beatings to garner a confession clearly violate fundamental principles of justice and therefore amount to a violation of due process. ● Brown (defendant) and two other men were found guilty of murdering Reymond Stewart and were sentenced to death. The evidence against them consisted solely of their own confessions which were induced by severe beatings at the hands of the local authorities. At trial, Brown and the others objected to the admission of the confessions and testified to the torture, saying their confessions were false. ● Decided not to incorporate 5th amendment due process of law- did not apply to the states yetNOT 5th AMENDMENT VIOLATION JUST DUE PROCESS VIOLATION ○ Saying 5th amendment doesnt apply to states- but going to reverse on the due process clause itself ○ From 36-66 court handled involuntary confessions under 14th amendment due process clause not 5th amendment due process clause ● Other holding of this case-> judges decide if confession violates 5th amendment and not jurors, judges screen beforehand ○ Why not let jury decide if it was voluntary confession or not ■ All white jury ■ Human nature- once they hear the confession- they are gonna want to use it-> not really going to be able to unhear it, prob wont care about technicality

● Torture happened outside the jailhouse- beat a confession out of them, brought them to jail to “recooperate” , Next day-> two sheriffs come in and ask if prepared to make statement, “voluntarily confess” the day after torture, but the same confession that was beaten out of them the day before ○ Tried to only introduce the “voluntary” one not the tortured one-> court says no you cant do that

BILL OF RIGHTS AND 14TH AMENDMENT- INCORPORATION Theories of incorporation: ● Due process clause says states shall not deprive life or liberty without due process of law ○ Life: death penalty ○ Liberty: prison ● Total incorporation - would have been saying we have this list of rights and all of them apply to the states according to due process clause ● Selective incorporation: what happened- going through each right assessing each one and assessing which ones apply to states ○ Incorporates all clauses except ■ Grand jury clause- states do not have to proceed by grand jury- can have prosecutor proceed and go straight to trial ○ Others in mcdonald note 13 Mcdonald- law says you cant keep guns at home in the way people want to keep them ● Legal issue- if the 2nd amendment applies to the states- and chicago argues that it does not ● Coming into chicago- Heller just a few years before- federal case ○ What does the 2nd amendment protect in the first place-> a right to self defense- right to personally possess a handgun ○ Previously only said that 2nd protects right to have handgun in a militia- mcdonald is sayign does this right apply to the states ● HELD: 2nd amendment applies to the states ● The test that court is currently using to decide whether federal constitutional right also applies to the states: ○ COURT SAYS THERE ARE TWO TESTS either of which can be met ■ Is it implicit in the concept of ordered liberty- necessary for civilized society OR ■ Deeply rooted in our country’s history ● Why added the history test-> because many things, like having guns at home, are not necessary for ordered society ○ Applied to grand jury clause-> not necessary for organized society- BUT deeply rooted in history ● ONCE FEDERAL RIGHT APPLIED TO STATES- WILL APPLY IT IN FULL FORCE ○ Text of rule applies as does all judicial interpretation

4TH AMENDMENT- INTRO AND DEFINITIONS OF SEARCH/SEIZURE TEXT OF 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”

EXCLUSIONARY RULE ● 4th amendment doesnt provide an answer for what the remedy is for violations ○ Perhaps could bring civil suit against the police or file a complaint ○ At common law, civil action against the agents would be your only remedy ○ 42 USC 1983-> civil suit for violation 4th amendment, suing law enforcement mostly Weeks v. US- creates exclusionary rule in federal prosecution United States and federal officials are prohibited from executing unreasonable searches and seizures upon people. ● Used as evidence against him were letters and envelops a U.S. Marshal had found and taken from Weeks’ home- no search warrant

● Items taken by a federal official from an individual’s home when no warrant has been issued are seized in violation of the Fourth Amendment and must be excluded from evidence. The Fourth Amendment’s protections against unreasonable searches and seizures would be unenforceable if evidence obtained in violation of the amendment were still permitted to be entered into evidence ● justification for excluding ○ Property rationale- if property taken unlawfully should get it back- doesnt really work if there are copy machines ○ Court says what is the value of 4th amendment if property thats taken can be introduced anyway ○ If theres no exclusionary rule -> police will continue warrantless searches, no incentive not to, need a deterrent ○ ALSO 4th amendment was created for criminal cases-> doesn’t really do much if they can get the evidence anyway and then use in criminal case, civil remedy isn’t really a good remedy then

Wolf v. Coloradois a violation of the Due Process Clause of the Fourteenth Amendment for state actors to gather evidence through unreasonable searches and seizures, but such evidence need not be excluded from state criminal proceedings. ● Wolf convicted in Colorado state court for violating state law. The prosecution’s case rested in part on evidence that would have been inadmissible in federal court, because it was gathered through an unreasonable search and seizure. ● Two holdings in wolf: ○ 1) not prohibited from admitting evidence obtained in violation of 4th amendment in state court for state crime ○ 2) 14th amendment incorporates 4th amendment’s right against search and seizure ○ How can both of these things be true: contradiction ■ Exclusionary rule not an essential element of 4th ■ States can come up with different ways to enforce privacy - key phrase page 76 last full paragraph “the security of one’s privacy against arbitrary intrusion by the police- which is at the core of 4th is basic to a free society. It is therefore implicit in “the concept of ordered liberty” and as such enforceable against the states through the due process clause” ■ WOLF ACTUALLY DOES NOT HOLD THAT THE 4th AMENDMENT APPLIES TO STATES - holds that security of one’s privacy against arbitrary intrusion by the police applies to states, and btw thats at the core of 4th amendment, but 4th itself does not apply- other parts of 4th may not apply like exclusionary rule Mapp v. Ohio- EXCLUSIONARY APPLIES TO STATES ● Evidence obtained through an unreasonable search and seizure in violation of the Fourth Amendment is inadmissible in state criminal proceedings. ● Officers forcibly entered the home without Mapp’s consent- showed fake warrant ● Since Wolf, many states have adopted laws forbidding the introduction of illegally obtained evidence in criminal proceedings, and more than half have now adopted some form of the Weeks rule. This development is the result of the growing understanding that only the exclusion of illegally obtained evidence provides the necessary incentive to state officials to refrain from unreasonable searches and seizures; other remedies are simply ineffective at

securing compliance. The right to privacy is just as important as any other fundamental right, and there is no reason it should be afforded less protection in state courts. ○ Say that exclusionary rule is essential part of 4th- and say that you cant separate it from 4th amendment like Wolf tried to do ● Wolf and mapp disagree on another point: ○ States started obtaining their own exclusionary rules for violations of state constitution 4th amendment-> all states have these ○ When wolf was written-> not many states had an exclusionary rule

FOURTH AMENDMENT INQUIRY ● If violate 4th amendment, evidence is suppress and cant be introduced at trial ○ Most common remedy is suppression, also can be civil damages ● THRESHOLD Q is always if there is a search or seizure and what is the search or seizure ○ search/seizure is the trigger for 4th amendment ● FIRST: is it a search at all, if no-> 4th doesnt apply ○ TEST: reasonable expectation of privacy ■ All about the facts ■ SC says no reasonable expectation of privacy for something in your car that can be seen from the outside with a flashlight ■ Also no if its looking into the window of someone's house from the street ■ Katz: “what he knowingly exposes to the public” ○ If violate 4th amendment, evidence is suppress and cant be introduced at trial ■ Most common remedy is suppression, also can be civil damages ● SECOND: is the search reasonable

WHAT IS A “SEARCH” ● Early period of search analysis, court held that gov surveillance was a search under 4th if the action trespassed on the defendant’s property interests ○ Began with boyd-> laid the seeds of a property rights interpretation of 4th amendmentenglish practice of general warrants was abusive, condemnation of general warrants ○ Under Boyd- the 4th amendment did not apply in the absence of physical intrusion- a trespass- by gov agents into a “constitutionally protected area- in order to find something or obtain information “ ● Second period of search law commenced with Katz Katz v. US- REASONABLE EXPECTATION OF PRIVACY TESTFourth Amendment prohibition against unreasonable searches and seizures of physical items extends to recordings of oral statements. ● Katz (defendant) was convicted of violating federal gambling laws. At trial and against Katz’s objection, the prosecution entered into evidence recordings of Katz’s end of a phone conversation. The recordings were obtained after the FBI placed a wire-tap on the outside of the public phone booth where Katz placed the call. ● Even when there is no physical invasion, wire-tapping a public phone booth is a Fourth Amendment search and seizure. The Fourth Amendment protects a person against unlawful government intrusion; it is not intended to provide constitutional protection to a specific place. Katz was justified in assuming that his phone conversation would remain private, even though the phone booth is at all other times for public use. Therefore, Katz was protected under the Fourth Amendment when he entered the phone booth and shut the door ● Concurrence (Harlan, J): The Fourth Amendment protects a person from unreasonable searches and seizures when he or she has a subjective expectation of privacy that society deems as reasonable- subjective and objective test. Notes: ● Justice stewart states that what a person knowingly exposes to the public is not protected by the 4th amendment ● Harlan’s test: two prong formula has become primary standard for determining whether police conduct constitutes a search (both prongs have to be met) ○ Subjective prong: actual expectation of privacy in the area

○ Objective prong: whether an expectation of privacy is reasonable ● Expectation of privacy because in booth with closed door took measures to be private, couldnt hear him from outside the booth ● Legal rule here: If the police intrude upon an area or information in which a person has a subjective and objective reasonable expectation of privacy *IN SOME PLACE OR IN SOME INFORMATION* there is a 4th amendment search United States v. White- lays seeds for third party doctrine- wire tap informant ● The Fourth Amendment right against unreasonable searches and seizures does not protect people from their misplaced expectations of trust and therefore there is no Fourth Amendment search and seizure when the person the defendant is speaking with is secretly a government agent or an informant wearing a wire and recording what is being said. ● government agents were permitted to testify to conversations White had had with a government informant- overheard these conversations through a wire-tap the informant had been wearing ● Court has held that police can write down notes about a conversation they have with a defendant while undercover and testify to those transactions. For constitutional purposes, there is no distinction between immediately writing down these transactions and simultaneously recording or relaying the conversation to agents through electronic devices. ○ Katz v. United States, 389 U.S. 347 (1967), the Court held that the use of a recording device on the outside of a phone booth amounts to an unconstitutional search because the user of the phone booth has a justifiable expectation that his conversation will remain private ○ Here, unlike in Katz, the defendants assume the risk when they confide in others about their illegal activities Notes: ● False friends: various ways the government listens to conversations of crime suspects ○ (1) eavesdrop on convo between A and B like in Katz ○ (2) may participate in the convo itself as when A talks to B and B is undercover officer, like in Hoffa ○ (3) false friend B will tape record convo (Lopez) or be wired with transmitter (Lee, White ● Why is this not a search if it was in a private home where there is a reasonable expectation of privacy in conversations had in the home ○ Court mentioned “false friends”- if u share info with someone, everyone knows that that person can do whatever they want with that info- no privacy in info that you expose to someone else

Smith v. Maryland- THIRD PARTY DOCTRINE A person has no legitimate expectation of privacy in information that the person voluntarily turns over to third parties. [got numbers called from wireless carrier pen register] ● public knowledge that the phone company keeps records of people’s outgoing calls so when people make calls they are voluntarily making public who they call ● while Smith made the phone call in the privacy of his home, he only had a reasonable expectation that his conversation would remain private, not that the number he called would remain out of the public record. ● even if Smith believed he had an expectation of privacy in the number he dialed, t his expectation was not reasonable and the use of a pen register does not constitute a search under the Fourth Amendment. The ruling of the court of appeals is affirmed. Class Notes: ● Court refines katz guidance to say that anything you knowingly expose to a third party ● Reasons the court uses ○ Fact that this info is collected in ordinary conduct of business- standard practice ○ Numbers that were dialed did not contain the content of the conversation (dissent disagrees) ○ He knew subjectively that phone company was recording because of fine print on phone booknot rly true nobody reads the fine print but just something the court is using to get their result ● ***THIRD PARTY DOCTRINE- IMPORTANT LABEL***- what a person voluntary expoes to a third party enjoys no privacy against the government

● Hoffa and white tell us that even telling one other person is enough because that person could theoretically go and tell authorities themselves ● For third party to work-> police have to actually get the info from the third party- not enough just the fact that u exposed info to any third person, third person actually has to give info to police

4 big themes of 3rd party doctrine

OTHER IMPORTANT POST-KATZ CASES: Dog sniffs ● Smith’s analysis of pen registers relied on “limited capacities” of the device (it does not acquire the contents of communications)- reasoning has been used in other places ● US v Place-> dog sniff in luggage for narcotics- not a search ○ Does not require opening luggage, does not expose noncontraband items -> much less intrusive than normal search

○ Sniff discloses only the presence or absence of narcotics, information obtained is limited , owner not subjected to inconvenience or embarrassment ● SC reaffirmed this in Illinois v. Caballes-> sniff of exterior of trunk of automobile which was lawfully stopped on highway for traffic ticket -> upheld as non-search Open fields v curtilages ● 4th only protects “persons, houses, papers, effects” ● Hester v US: SC enunciated the so called open fields doctrine: provides that police entry into an open field does not implicate 4th amendment ● Oliver v. US- held that this doctrine remains good law after Katz- Law enforcement trespassed on def’s rural property even ignoring no trespassing signs to find marijuana ○ Open field may include “any unoccupied or undeveloped area outside of the curtilage of a home (could be wooded area, doesnt have to be open or a field) ○ entry of open field does not constitute search within post Katz meaning: ■ An individual may not legitimately demand privacy for activities conducted out doors in fields, except in the area immediately surrounding the home rule is true to conception of the right to privacy embodied in 4th amendment ○ Open fields do not provide the setting for those intimate activities that the amendment is intended to shelter - these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be ○ curtilage-, the land immediately surrounding and associated with the home ■ Curtilate is the area to which extends the intimate activity associated with “sanctity of a mans home and the privacies of life” and therefore has been considered part of the home itself for 4th amendment purposes ● US v Dunn ○ Court examined the curtilage concept further - stated that curtilage questions should be resolved with reference to 4 factors; ■ Proximity of the area claimed to be curtilage to the home ■ Whether the area is included within an enclosure surrounding the home ■ The nature of the uses to which an area is put ■ Steps taken by resident to protect the area from observation by people passing by ○ Factors are useful tools only to the degree that in any case they bear upon the centrally relevant consideration-whether the area in question is so intimately tied to the home that it should be placed under the home’s umbrella of protection Garbage ● Cali v Greenwood-> garbage bags left on curb in front of house for trash pickup ○ Court ruled a person does not have reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal - common knowledge that they are left on the side of public street readily accessible to animals, children, scavengers etc ○ Placed outside for the express purpose of conveying to third party, trash collector who might have sorted through it himself - third party doctrine ○ Police can not reasonably be expected to avert eyes from evidence of criminal activity that could have been observed by any member of pub...