Criminal Procedure Outline- Spring 2021 PDF

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Summary

This is an outline for criminal procedure. The class is open book. This outline summarizes all the required knowledge for this class....

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Crim Pro Outline Friday, January 15, 2016 3:19 PM

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Incorporation, Constitutional Sources of Criminal Procedure a. Overview of the Criminal Justice System i. Investigation ii. Arrest (there needs to be probable cause) 1. How to determine if there is probable cause a. There is enough evidence against accused b. A reasonable person believes the evidence 2. Arrests can occur by a police officer, indictment by a grand jury, or through a summons from a judge/magistrate 3. There needs to be some investigation before some sort of arrest is made pursuant to the 4th Amendment ii. Initial Judicial Appearance 1. Soon after the arrest is made, the arrested person appears before a judge (this may be in the form of an arraignment) ii. Preliminary Hearing 1. Filing of Formal Criminal Charge ii. Arraignment 1. At arraignments the defendant will be informed of the charges against him/her, bail may be set or not, and a pleading of guilty or non-guilty will be made ii. Trial iii. Sentencing iv. Appeal v. Collateral Attack b. Constitutional Amendments (Due Process and Incorporation of the Bill of Rights) i. 4th Amendment 1. 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 ii. 5th Amendment 1. …; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law… ii. 6th Amendment 1. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State…to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him…and to have the Assistance of Counsel for his defense ii. 14th Amendment 1. …No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; not shall any

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State deprive any person of life, liberty, or property, without due process of law… 2. The due process clause of the 14th amendment is how we apply the Bill of Rights to states b. Independent and Adequate Doctrine i. Comm. v. Levy 1. Facts: A police detective saw a Ford occupied by a man and two women pull up to a public telephone. The man made a brief call, returned to the car which drove away. After following the Ford a short distance, the detective noticed that it stopped. The man got out and began pacing. Shortly after, a Pontiac w/ three occupants arrived and the man pacing the street got into the back seat of the Pontiac which traveled around the block. The man then got out and walked back to the Ford. None of the participants was known to the police. Although he saw no exchange of any item, the detective thought he had witnessed a drug transaction. He then learned that the owner of the Pontiac had a suspended license. After obtaining backup, the police stopped the Pontiac. The driver and the defendant, the front seat passenger, were searched and 28 bags of crack cocaine were found in the defendant's boot. The defendant was charged with possession of cocaine with intent to distribute. 2. Background Proceedings: The defendant filed a motion to suppress evidence. The district court granted the motion. The Commonwealth prosecuted an interlocutory appeal in the Appeals Court. The Appeals Court reversed the trial court's ruling. The defendant appealed to the SJC. 3. Holding: Reversed a. The police did not have probable cause to arrest the defendant and search his boot, but b. The police had reasonable suspicion to detain the defendant for questioning Sources and Rationales for the Exclusionary Rules a. Exclusionary Rules i. What is an exclusionary rule? 1. A judge-made rule that requires the exclusion of evidence from the trial of a defendant whose constitutional rights have been violated by law enforcement authorities in obtaining the evidence ii. 4th Amendment (Illegal Searches & Seizures) 1. If evidence being presented at trial or being discussed at pre-trial has been obtained contrary to the 4th Amendment, the court would suppress the evidence (attorney needs to file a motion to suppress) 2. The 4th Amend. states that the gov't shall not violate the amend. 3. The exclusionary rules are judge made rules ii. Weeks v. United States (Federal Case) 1. Facts: Weeks was charged w/ and convicted of use of the mails for transporting coupons or tickets representing chances in a lottery, in violation of a federal criminal statute. On appeal, he claims the court erred in admitting in evidence papers taken from his room by government officials during illegal warrantless searches

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2. Trial court granted D's petition partially by requiring part of the evidence not important to the case while keeping evidence that were important w/ the case 3. Supreme court ruled that the evidence obtained contrary to the 4th Amend. should be thrown out (conviction reversed by unanimous opinion) a. Items taken by a federal official from an individual's home when no warrant has been issued are seized in violation of the 4th Amendment and must be excluded from evidence 2. Supreme court does not want to be in cahoots w/ the police by allowing the evidence to be used, thus tainting the court 3. Also, the court states that there is a privacy right that is being violated since officers are effectively trespassing 4. All a justices agreed w/ the decision Mapp v. Ohio (State Case) 1. Facts: Cleveland police officers entered Mapp's house claiming authority under a search warrant. Mapp grabbed the "warrant" and the police struggled with her to retrieve it. Having retrieved the paper, the police placed Mapp under arrest and commenced their search of the entire house. The police found certain materials which they seized and used at trial to prosecute Mapp for possession of obscene materials. At trial no search warrant was produced. Mapp was convicted and appealed. 2. The state charged her according to state law 3. In a prior case, Wolf, the Supreme Court held that the states and federal courts need to be uniform and all adopt the exclusionary rules a. States were not stopping the use of evidence illegally obtained b. Court also wanted the state and federal courts to be uniformed based on the law, to deter officers from illegal searches and seizures, protect integrity of court, and protect the right to privacy 2. Court held that evidence obtained illegally by state officials is inadmissible in state court 3. Dissent a. The issue has never been about the 4th Amend., but about the state law b. Also, the court should not have been legislating from the bench by imposing the federal standard to the states 2. Notes of Mapp case a. The Calandra case points more to the use of the exclusionary rules as a deterrent i. Looking at the exclusionary rules as evidentiary rules instead of constitutional rules since the evidentiary view gives a better basis to why courts need to adopt the exclusionary rules

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The exclusionary rules apply to ALL evidence obtained illegally, thus there is some retrenchment or refinement of the law b. 1995 proposed legislation is to make illegal searches and seizures only a civil suit, thus providing a civil remedy i. Need to show actual damages ii. Also, agents/officers would only be disciplined if they lacked a good faith belief that the search and seizure was constitutional 2. What justified the extension of the exclusionary rule a. Exclusion is an essential part of the right to privacy and an important constitutional privilege. An individual who has suffered an unreasonable search or seizure has a 14th Amendment right to exclusion b. The purpose of the exclusionary rule is to deter-to compel respect for the constitutional guaranty in the only effective available wayby removing the incentive to disregard it. In other words, the rule is also a future-oriented deterrent sanction c. There is another consideration-the imperative of judicial integrity. Judges should not taint the courts by allowing the fruits of official violations of privacy to be used to convict d. Recognition of an exclusionary rule that is applicable to the states creates desirable symmetry between the federal state systems e. The right to privacy ought to be treated like other constitutional guarantees-specifically, like the due process right not to be convicted on the basis of a coerced confession. If the products of coercion are excluded confession. If the products of coercion are excluded, the product of unreasonable searches and seizures should also be excluded. b. The "Threshold" of the 4th Amendment Right to be Secure against Searches i. Exclusionary rule is the remedy of a violation of the 4th Amendment 1. Before we get to a remedy, we need to figure out what constitutes a violation of the 4th Amendment ii. The threshold question is whether the conduct of police officials constitutes a 4th Amendment search iii. The framers of the constitution in drafting the 4th Amend. were concerned with illegal searches due to what they had to go through (i.e. intrusion of the home or office, physical intrusion, and non-physical) 1. Property concept ii. Physical intrusions w/o permission or warrants enter premises, listening devices requires penetration into a private space, false friends (i.e. undercover agents, those who are friends that turn on you) 1. This is what occurred based on Olmstead 2. For false friends, courts did not find the evidence illegally obtained ii. Not all searches fall w/in the confines of the 4th Amendment 1. If searches do fall w/in the 4th Amend., warrantless searches are deemed illegal unless there is an exception ii. Cases

1. Katz v. US a. Facts: Katz was convicted of transmitting wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal law. At trial, the government offered Katz's end of telephone conversations overheard by FBI agents who had attached a listening device to the outside of the public telephone booth where Katz placed his calls b. Court held: The 4th Amend. protects people, not places c. The court of appeals rejected the contention that the recordings had been obtained in violation of the 4th Amend. b/c there was no physical entrance into the area occupied d. The Supreme Court stated that the 4th Amendment protects people, not places i. Pg. 6 --> Highlighted phases in 1st paragraph ii. Pg. 6 --> Bottom of pg. highlighted phrase b. Supreme Court also stated that penetration is a non-factor c. Harlan's concurrence i. Coins the phrase: "Reasonable expectation of privacy" ii. He creates a two-part test for "reasonable expectations" that the Court majority later adopts: 1. An actual (subjective) expectation of privacy, that 2. Society is prepared to recognize as "reasonable" 2. US v. White a. This case deals w/ false friends and the court says that this practice of using under cover officials is okay b. Facts: White was convicted on two charges involving illegal narcotics. At trial, over White's objections, government informant. The government agents had overheard these conversations through a wire-tap the informant had been wearing, allowing them to hear every word in real time. The court of appeals reversed the conviction holding that the testimony was inadmissible at trial c. Issue: Whether the 4th Amendment prohibits gov't agents from testifying to what they overheard over a wire-tap worn by a gov't informant d. Court says that simultaneous transmissions is the same as writing down conversations for official use e. Court held that the Fourth Amendment does not prohibit government agents from testifying to what they heard over a wiretap worn by an informant f. Rule of Law: 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 g. The court has held that police can write down notes about a conversation they have with a defendant while undercover and testify to those transactions h. 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 i. Electronic surveillance that allows agents to listen in real time is admissible provided the agent is not otherwise violating the defendant's reasonable expectations of privacy 2. Smith v. Maryland a. Facts: Smith was convicted of robbery. Over Smith's objection, a pen register tape that showed he had called the woman he had robbed was introduced at trial. Smith appealed his conviction. b. Issue: Whether a person has a reasonable expectation of privacy in the phone numbers he dials from the privacy of his home c. Court held a person does not have a reasonable expectation of privacy in the phone numbers he dials and evidence obtained through the use of a pen register is admissible in trial d. Rule of Law: The 4th Amendment protects people from unreasonable searches and seizures where a person exhibits a reasonable and subjective expectation of privacy e. It is public knowledge that the phone company keeps records of people's outgoing calls so when people make a call they are voluntarily making public who they call f. 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 i. Therefore, even if Smith believed he had an expectation of privacy in the number he dialed, this expectation was not reasonable and the use of a pen register does not constitute a search 2. California v. Ciraolo a. Facts: An officer obtained a private plane and flew over defendant's house at an altitude of 1000 ft. w/in navigable airspace. From that vantage point, the police readily identified marijuana plants growing in a plot in defendant's yard. They photographed the area w/ a standard 35mm camera and obtained a search warrant. Based on the evidence seized, the defendant was charged and convicted. b. Open fields do not give a person a reasonable expectation of privacy since anyone can use the field despite having a trespassing sign c. In order to get a search warrant, you need to have probable cause i. Requires some evidence and testimony/affidavits from officers

b. Court held that when a person knowingly exposes something to the public, even though it is part of your curtilage, the person is not protected under the 4th Amendment i. However, the Defendant constructed a 6 ft. fence and then a 10 ft. fence to obstruct what he was doing 1. Thus, he has a reasonable expectation that someone on-ground level would not look into his yard w/ a ladder b. What is acceptable is that officers were flying in public air space and they spotted the illegal activity w/ the naked eye through the use of a regular camera c. Dissent: What officers did is a violation of the 4th Amendment 2. Florida v. Giardines a. Facts: Based on "an unverified tip" about in-home marijuana growing, detectives took a trained canine to Jardines' front porch. The dog alerted, indicating the presence of narcotics. Marijuana plants were found during a search of the home pursuant to a warrant issued on the basis of what had been learned from the dog sniff. b. Issue: Whether using a drug-sniffing dog on a homeowner's porch to investigate the contents of a home is a 'search' w/in the meaning of the 4th Amend c. The majority opinion states that the police officer was at the house under an official capacity w/ the intent to find contraband substances, thus the search was deemed unreasonable under the 4th Amend. i. Majority of the Court concluded that the initial investigation w/ the dog was a 4th Amendment search b. The officer was w/in the curtilage of the home, thus his search was done w/in an area where a person would have a reasonable expectation of privacy 2. Bond v. US a. Facts: Agent Cantu, having boarded a bus, started to squeeze the soft luggage in the overhead bins because he was searching for drugs on board. In the overhead bin at the back of the bus, where Bond (defendant) was seated, Cantu felt a green canvas bag and noticed that it contained a “brick-like” object. Bond said that the bag was his and allowed Cantu to search it. Cantu discovered, wrapped in duct tape, in an oval shape, a certain amount of methamphetamine, which was rolled up in a pair of pants. Bond moved to suppress the evidence, but the motion was denied and he was convicted. b. Issue: Whether the physical manipulation of a bag on a public bus is a type of search that violates the 4th Amendment c. Despite giving consent to search the bag, what is at contention is the initial search of squeezing the bag which led to the agent to ask the petitioner to search the bag

d. The dissent focuses on how other people can touch the bag, thus there should be no expectation of privacy e. The majority states that there is a reasonable expectation of privacy i. Majority draws a distinction between this case and Ciarolo by pointing to the purpose of the search as well as stating that tactile searches (i.e. squeezing bags) seems more intrusive than visual searches b. Consent is not an issue since the illegal search was done before consent was given 2. Kyllo v. US a. Facts: A neighbor tipped off the officers that Kyllo may be growing marijuana. The police then went to the home and conducted thermal imager search from across the street and saw that one part of the house was significantly hotter than other parts b. Issue: Whether the use of thermal imaging devices to detect levels of heat in a private home constitutes a 4th Amend search c. Court held that the info of the thermal is deemed to be intrusive, thus it violates the 4th Amend. d. Rule of Law: While an unwarranted search of a private home is generally presumed to be unconstitutional, home owners have no reasonable expectation of privacy in the things freely observable by the public and therefore there is no 4th Amend search and seizure if police gain info by observing things in public view e. The thermal imaging was done from across the street of the home (on the public wall) f. The device is not something that is available to the public, thus there is a reasonable expectation of privacy from having thermal imaging devices used on homes g. Dissent i. The dissent makes a distinction between through-the-wall and off-the-wall surveillance 1. Thermal imaging does not look throughthe-wall to get info, only obtains info from off-the-wall i. Info obtained should not/is not private ii. Summary of Threshold of 4th Amendment Searches (Reasonableness) 1. Need to make an attempt to safeguard what you intend to keep private 2. Society needs to have an interest in protecting the supposed illegal search 3. Conversations to third parties do not have protection under the 4th Amendment since there is no reasonable expectation of privacy b. Unreasonableness and Probable Cause Requirement i. Katz: Government activity that violates a citizen reasonable expectation of privacy 1. Subjective expectation of the actor 2. Society is ready to accept that as reasonable 3. **Don't forget to take precaution

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4. **Society has an interest in what is being searched 4th Amendment 1. Probable Cause a. The facts and circumstances w/in the officers' knowledge and of which they have reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an item subject to seizure will be found in the place to be searched 2. Search Warrant a. Application b. Affidavit i. Signed by an officer who knows or believes to be true information he has personal knowledge of ii. Must be explicit for the information they are relying on that is not from another police pers...