Criminal Procedure I Final Exam Outline

Basic due process violations
14th Am.
Brown – Torture in securing a confession violates the principles of fundamental fairness
Accuracy– One argument is that torture in acquiring confessions violates the tenet of accuracy that was considered important for fundamental fairness
Legality– More importantly, the criminal justice system should not punish anyone before proving one is guilty beyond a reasonable doubt, even if we are positive they are guilty
Ashcraft – Severe sleep deprivation is found to violate principles of fundamental fairness
Accuracy – Same as in Brown
The innovation in Ashcraft is that of presumption – no matter what one’s status the standard by which we presume one has involuntarily confessed is universal
A confession seems to be presumptively involuntary only by means of some specifically reprehensible state action – Miller
Miller v. Fenton – Upholds the confession of one who is mentally unstable and persuaded to confess as given D’s age and status he should be resistant to this form of persuasion
Ashcraft – Though we are getting farther and farther away from this notion of reprehensible state action
State action in persuading a confession
Intrinsic lies are less problematic and are entirely constitutional as D is in the best position to determine whether evidence is really made up
Though those really concerned about reliability and accuracy may believe that these lies are unconstitutionally persuasive
Alschuler would disagree arguing that one should strictly look to whether the state has taken part in an offensive action precluding all understanding of the D’s individual nature
Extrinsic lies are per se problematic as D has no basis for valuing the validity of evidence outside of D’s experience and may base their confession improperly
5th Am.
Rochin – “Shock the conscience” standard – About an involuntary production of evidence regardless of whether the police action was brutal
D’s body is being used against D’s will to incriminate D
Accuracy is not a concern – doesn’t matter that D is in fact guilty
Though Breithaupt v. Abram – Court does not follow Rochin because they say that taking a blood test sample from a suspect who is unconscious doesn’t shock the conscience
4th Am. – Searches and seizures
Overview
Text – “The right of the people to be secure in their person, 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”
Under all historical interpretations, “physical entry of the home is the chief evil against which the 4th Am. is directed – Katz
Standing – Defendant may not raise a claim of a 4th Am. violation unless she is an alleged victim of the unreasonable search or seizure
Exclusionary Rule – 4th Am. remedy – Generally provides that evidence seized by the police in violation of the 4th Am. may not be introduced in a criminal trial of the victim of the unreasonable search or seizure
Not expressly provided for in the federal Constitution, but an implied component – Weeks
Controversial because its effect is to suppress reliable evidence of D’s guilt
“Private” Searches and Seizures – Does not extend to searches and seizures, no matter how unreasonable, that are conducted by private person on their own initiative
A person must be acting as an instrument or agent of the Government – Skinner
Not always police officer, also public employees
Extra-territorial searches and seizures – Verdugo-Urquidez
Following are not entitled to 4th Am. protections
Nonresident aliens not in the US or its territories and
Aliens who are temporarily and involuntarily in the US
Unclear whether 4th Am. extends to
Illegal aliens living voluntarily in the US
Nonresident aliens whose prolonged presence in the country obtains sufficient connections (i.e., alien inmate in a state or federal prison)
Abandoned houses, papers and effects – Not entitled to 4th Am. protections
Test – D intends to forego any interest or should realize that observation or use by another is likely
Though not considered abandoned if discarded as the result of unlawful police conduct
Policy
No legitimate expectation of privacy
D’s own act to abandon = no seizure by the police in order to disclose
Reasonable per se
Issue Checklist
Did the police activity constitute a “search” and/or “seizure”?
Harlan test
Did the police activity in question implicate a “person, house, paper or effect?”
Rarely results in litigation
If so, did the officer have adequate grounds to conduct it?
What degree of suspicion is legally required to justify the search or seizure?
Probable cause
Reasonable suspicion
Did the officer in fact have the requisite degree of suspicion?
Did the officer have a warrant?
If not, was there a valid reason not to secure one?
Warrantless searches are per se unreasonable but not always unreasonable
If a search warrant was secured, was it obtained in a proper manner and is it in the proper form?
Warrants must
Be issued by a “neutral and detached magistrate” based on information “supported by Oath or affirmation”
Describe in particularly “the place to be searched, and the persons or things to be seized”
Does D have standing to raise a 4th Am. challenge to the evidence in question?
Analyze separately for each D
Assuming that the preceding questions justify the conclusion that the police conducted an unreasonable search or seizure in violation of D’s rights, what evidence, if any, must be excluded from the criminal trial?
Secondary evidence (i.e., evidence indirectly secured as a result of the original illegality, is sometimes inadmissible as a fruit of the poisonous tree
“Persons, houses, papers and effects”
Persons include
D’s body as a whole
As when arrested – Chimel
Exterior of D’s body
Including clothing as when patted down for weapons – Terry
Interior of D’s body
As when blood is extracted to test for alcoholic content -- Schmerber
D’s conversations
As when electronically monitored – Katz
Houses include
Virtually all structures that people commonly use as a residence, whether on a temporary basis (Stoner) or a long-term basis (Clinton)
Encompasses buildings connected to the residence, such as a garage – Taylor
Includes the curtilage of the home – “the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’” – Oliver
NOT including open fields – unoccupied and undeveloped real property outside the curtilage of the home – Hester and Oliver
Offices, stores and other commercial buildings – Oliver
Papers include
Personal items, such as letters and diaries, as well as impersonal business records – Andresen
Effects include
Residual component of the constitutional phrase
Automobiles
Luggage and other containers
Clothing
Weapons and fruits of the crime
Though less inclusive than the word “property” – open fields, which are not houses are also not effects – Oliver
Search
Katz – Harlan’s 2-prong “reasonable expectation of privacy” test has both a subjective and an objective test
Test
Individual must have manifested an actual, or subjective, expectation of privacy – subjective
Expectation is one that “society is prepared to recognize as reasonable” – objective
Police activity does not constitute a search if either prong is lacking
Subjective – No search had D known the telephone booth was bugged
Although people in general may have a legitimate expectation of privacy, D’s subjective realization that his conversations were not private would have undermined his 4th Am. claim
Objective – No search had D incriminated himself in the open
Society is not prepared to recognize as reasonable an expectation of privacy in words spoken out in the open
Analysis and Critique of the Harlan test
Subjective
Technology advances coupled with increased crime and urbanization accustom us to a less private way of life
Once people know that the government is reading their mail, listening to their conversations, and generally intruding on their privacy they will have no subjective expectation of privacy
Objective
“Reasonable” has come to be replaced by “legitimate” or “justifiable” – based on use of “society is prepared to recognize language”
Reasonable – A reasonable person would not expect her privacy to be invaded
D chooses to commit crime in a secluded park
Justifiable or legitimate – Draws a normative conclusion about the privacy to which one has a right
Less privacy in homes in high crime or urban areas vs. rural areas
Harlan later supported the more normative analysis in White – Suspect talking to person he believes to be a friend, invited into suspect’s home and friend transmits conversation to FBI agents outside the house (like Hoffa but there informant went and told)
White – There’s no way that the suspect here could have legitimate expectation of privacy after Hoffa
Harlan believes this is disingenuous and he is dissenting here so what does this tell us about he wants the 2nd prong of his test interpreted? – “The question must, in my view, be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement...extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of the 4th Am.”
White is thinking of reasonableness as an empirical matter but Harlan says we have to worry about other things – “form and project as well reflect” society’s expectations
Harlan argues that we want to make sure that people continue to have a preference for more privacy which we concerned about because of Katz’s subjective standard – one way we can do that is by keying our standard for privacy to those who respect it the most
SC has applied Harlan test strictly – 3 factors have proved particularly important in post-Katz “search” jurisprudence
Nature of the property inspected is critical – Some property is linked more directly to activities that the Court wishes to protect from scrutiny than others – open fields vs. curtilage
Extent to which a person has taken measures to keep information, property, or an activity private – A person can not have a reasonable expectation of privacy in that which she knowingly exposes to the public or is in open view
One who voluntarily conveys information or property to another person assumes the risk that the latter individual will transmit the information or hand over the property to the government
As limited exposure is not protected, 4th Am. is eliminated from a great many aspects of modern life
Degree of intrusion caused by the police activity – Analyzed at times under the pre-Katz standard of “disruption of legitimate activities”/trespass standards
Applications of the Harlan test
Surveillance of Conversations by “False Friends”
“False friends” – White (per Hoffa)
Restated in terms of Katz, SC held that a person does not have “a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police”
Criticisms
Does not necessarily follow, however, that people should be expected to assume the risk in a free society that their “friends” are government agents
Jeopardizes the conversational confidentiality “necessary for the maintenance of personal autonomy and the development of creative individuality
“Wired” false friends – White
No constitutional difference between pure false-friend cases and the situation in which the false friend uses the more reliable technique of recording the conversations
Criticisms
Though Harlan dissented – the practice of monitoring conversations undermines “that confidence and sense of security with one another that is characteristic of individual relationships between citizens in a free society” and goes “beyond the impact on privacy occasioned by the ordinary type of [false-friend] investigation upheld in Hoffa”
People will measure their words more carefully if they fear that their conversations are being transmitted to 3rd persons, than they will in the pure false-friend situation
Open Fields – Entry into and exploration of so-called “open fields does not amount to a search within the meaning of the 4th Am. – Oliver (federal officers entered on foot, ignoring “No Trespassing” signs and walking around a locked gate and a stone wall)
Policy – People do not have a reasonable expectation of privacy in activities occurring in open fields, even if that activity could not be observed from the ground except by trespassing in violation of civil and criminal law
Bright-line rule – Expectation of privacy in open field is never legitimate
Definition – Any occupied or undeveloped area outside the curtilage, though need not be either “open” or a “field” as those terms are used in common speech
Curtilage – “Land immediately surrounding and associated with the home to which the extends the intimate activity associated with the sanctity of a man’s home and the privacies of life”
4 determining factors – Dunn
Proximity to the home
Whether the area is included within enclosures surrounding the house
Nature of the use to which the area is put
Steps taken by the resident to protect the area from observation
Backyard is almost always curtilage, though front yard can vary depending on the above factors
Though search occurs if police while in an open field enter an enclosed structure – Dunn
Technological Information-Gathering
Pen registers – Smith v. Maryland
Electronic tracking devices – Knotts – Use of such a device to monitor a person’s movements is not a search if the only information that it reveals is available at large, or at least to people who theoretically obtain the information from a lawful vantage point
Yet indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of 4th Am. oversight – Karo
Policy – As long as it is hypothetically conceivable albeit unlikely as a practical matter, for people to obtain information in a non-technologically-enhanced manner, it is irrelevant that an electronic tracking device is used
Policy – The difference in the 2 cases might come down to little more than that the chemical drum in Knotts was placed outside the cabin rather than inside
Aerial Surveillance
Rule – Non-technologically-enhanced aerial surveillance by the government of activities occurring within the curtilage (open field is not protected at all)of a house does not constitute a search if the surveillance
Occurs from public navigable airspace and
Is conducted in a physically non-intrusive manner
Airplanes – Ciraolo – Police need not shield their eyes from objects or activities which are knowingly exposed to them even in the curtilage
Court noted that the airplane had been flown at an altitude of approximately 1,000 feet which was within public navigable airspace for fixed wing aircraft as required by FAA regulations
Policy
Fact that a person has taken measures to restrict some views of her activities within the curtilage does not preclude the police from observing them from a public vantage point where they have a right to be
“In an age where private and commercial flights in the public airways are routine,” it is unreasonable for D to expect privacy from the air
Helicopters – Riley – Not a search for the same reasons above, D had offered no evidence “that such flights were unheard of” in the vicinity of the house
Police action might have constituted a search if an airplane rather than a helicopter had surveyed D’s greenhouse from precisely the same vantage point
Though greater likelihood that helicopter might interfere with D’s normal use of the house or its curtilage – SC found it significant in Riley that no intimate details connected with the use of the house were revealed
Testing for Contraband
Dog sniffs – Place – Not a search based on 2 facts
Information was secured in a comparatively non-intrusive manner
The luggage, which was in a public place when it was sniffed, was not opened and, thus, non-contraband items were never exposed to the public eye
Information revealed was very limited, as it disclosed only the presence or absence of narcotics, a contraband item
“No other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure”
In-the-field chemical testing – Jacobsen – Any chemical test that “merely discloses whether or not a particular substance is [illegal] does not compromise any legitimate interest in privacy” and is therefore not a search
In contrast, if a substance is not tested to determine if it is contraband, but rather to find out whether it contains evidence of the use of contraband, the test is a search – Skinner (tests of blood and urine for drug usage is a search)
Inspection of Garbage – Greenwood – D has no reasonable expectation of privacy in garbage enclosed in a bag left for collection outside the curtilage of a home
Subjective – D might have a subjective expectation that the trash would not be opened by the police
Major holding in Greenwood – Fact that incriminating evidence was sealed in a container didn’t matter as “mere possibility that unwelcome meddlers [could] open and rummage through the containers” was enough to make D’s expectation of privacy illegitimate
Objective – D’s 4th Am. Claim failed on objective grounds because “it is common knowledge” that plastic garbage bags left on the curb for pickup “are readily accessible to animals, children, scavengers, snoops, and members of the public”
2 related search rules
4th Am. does not protect information knowingly exposed to the public – Katz
One cannot have a reasonable expectation of privacy in information voluntarily turned over to others
Seizure
Seizure of Property – Tangible property is seized in 4th Am. terms “when there is some meaningful interference with an individual’s possessory interest in that property” – Jacobsen
Seizure occurs when
Government destroys property
Property is removed from D’s actual or constructive possession – Place
House is secured to prevent individuals from entering or taking away property – Segura
Officer merely picks up an object to look at it or moves it a small distance – Hicks (officer lifted stereo equipment in order to read a serial number on the back or bottom
Any interference with D’s possessory interest in such circumstances is not meaningful
Seizure does NOT occur when – Installation of electronic devices on or in property – Karo
No seizure occurred when the bug-infested can was transferred to D
Placement of beeper in the can was not a seizure since the container at that time did not belong to D, and thus did not invade his possessory interests
“Although the can may have contained an unknown and unwanted foreign object, it cannot be said that anyone’s possessory interest was interfered with in a meaningful way”
Seizure of Persons – Occurs when a police officer, by means of physical force or show of authority, intentionally restrains the individual’s liberty in such a manner that, in view of all the circumstances surrounding the incident, a reasonable person would believe that she is not free to leave
Purely objective test, no subjective element
Examples
Physically restrained so that he can be frisked – Terry
Placed under arrest – Henry
Intentionally shot by the officer – Garner
Taken into custody and brought in for questioning – Dunaway
Fingerprinting – Hayes
Traffic stop/citation – Hensley
Roadblock – Brower
Police confrontation alone does NOT amount to a seizure unless the officer adds to the pressures inherent in the situation “by engaging in conduct significantly beyond that accepted in social intercourse” by
Displaying a weapon
Encircling a suspect
Roughly touching a suspect
Using a tone which would indicate that “compliance with his request might be compelled” – Mendenhall
Seizure by Questioning – Questioning by itself is unlikely ever to amount to a seizure – INS v.