Criminal Procedure Outline
Spring 2004Prof. Nowlin
Policy Divides in the Criminal Justice System
I.Competing Criminal Justice models:
1)Crime Control Model: Conservative approach, focused on Declaration of Independence language, thinks that government should be protecting citizens rights to “life, liberty, and pursuit of happiness” from private violence (criminals)
a)Efficiency in processing, conviction, and disposition of cases (assembly line)
b) managerial/administrative model
c) Interested in protecting citizens’ natural and human rights to be free from violent acts of criminals
2)Due Process Model: Liberal Approach: focused on Declaration of Independence language of protecting citizens’ “life, liberty and pursuit of happiness” from the government’s influence. (layers of procedural protection)
a)focuses on protecting defendant’s rights, human dignity
b)not managerial
c)adversarial and judicial
d)protects from government infringement on Δ’s human rights, showing respect and autonomy of the individual
3) Dershowitz – “The Best Defense”
“Nobody really cares about the justice and due process model – crime control is what people care about – it is the basis from which the criminal justice system operates.”
II. Procedural/Structural Dimension: Judicial Power Dimension
1)Judicial Activism:
a)constitutional democracy: discretion on interpreting constitution, not necessarily required to ground decision in traditional legal materials/precedents
b)fear of the masses
c)protection of electoral minority (unpopular)
d)part of a system of checks and balances
e)believes the Constitution is a “living Constitution,” allowing for modifications
f)believes in broad judicial authority to legislate form the bench and make policy—adapting to tough political/social concerns, where legislature may not be prepared to act because of politics
2)Judicial Restraint:
a)local control: States have police power generally, so their laws should be upheld unless clearly in violation of Const.
b)federalism—S.Ct. has little business interpreting Constitution--should focus more on history and intent of framers
c)Representative democracy: Legislature should get deference, and make policy, not the Court. Judicial branch violates rights of citizens by making policy, b/c legislature represents the people and is responsive to them—they should make law.
d)Decisions of the Court should be grounded in history and traditions and precedent, little flexibility allowed here.
- Liberal v. Conservative: Current split on the Supreme Court
1) Liberal Justices: Souter, Breyer, Ginsburg, Stevens
a) favor Due Process model, and Judicial Activism
2) Conservative: Rehnquist, Thomas, Kennedy, Scalia, O’Connor
b) Favor Crime Control model and Judicial Restraint
IV. The Supreme Court in an attempt to set rules governing criminal justice has difficulty creating a complete, coherent,
and therefore effective set of rules.
1) Complete – because of a limited docket not many cases reach the Supreme Court
2) Coherent – cases do not line up due to the different viewpoints of the Court. Changes occur because over time there are major policy revisions and shifts as well as Justice shifts.
3) Implementation – application varies in Circuit splits.
Incorporation Arguments
Duncan v. Louisiana: Involved question of whether Due Process Clause of the 14th Amendment made the 6th Amendment’s jury trial requirement applicable to the states. Important to figure out how much of the Bill of Rights applies to the states, because States do almost all the lawmaking in the Criminal Justice System. There are several theories:
1)Total Incorporation: All provisions apply to states. Justice Black says that history doesn’t support selective incorporation, and the fundamental fairness theory provides vague and varied results. Black believes that this will lead federal judges to make case by case moral or political judgments and lead to judicial activism. He wants to avoid this by totally incorporating the Bill of Rights. Black concurs in the Selective Incorporation stance because although some rules are left out it is close to the Total Incorporation stance.
2)Fundamental Fairness: BOR should apply to States to the extent necessary to protect defendants from things which would deprive them of fundament fairness. Justice Harlan said text of 14th doesn’t support incorporation—it would’ve been easy to say “incorporated to states” in the text. Due Process clause actually means fairness, and calls J. Black an ‘activist,’ for wanting total incorporation and would handcuff State police power.
3)Selective Incorporation: current stance: Some, but not all of the BOR apply to states. Justice White announced as a compromise. This, currently, is almost total incorporation, as only a couple amends are not incorp. Also, fundamental fairness is considered as well. Basically all major criminal protections have been incorporated. Argument against total inc. is that some provisions don’t apply well—what works well on Federal level may not work well at local level—ex: 12 v. 6 jury members, and voting…
Selective Incorporation + Some Additional Rights through fundamental fairness.
Search and Seizure:
The 4th Amendment states: “The right of 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 an oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Boyd v. United States: Boyd is required (by federal subpoena) to turn over paperwork over shipping/tariffs on some plate glass. Court found that this violated both the 4th and 5th amendments. It was essentially a seizure, and if Δ provided docs, it was incriminating, and if he didn’t he was assumed guilty.
1)While a landmark decision at the time, Boyd has been overruled, because it was based on property rights. The thought was that gov’t could come in and look for more evidence of crime as long as they had a property interest (trespass doctrine).
2)This trespass doctrine said that people’s rights weren’t violated if they didn’t have a property right: examples of things people didn’t have rights to:
a)contraband: illegal drugs, etc.
b)fruits of a crime
c)instrumentalities
3) Judgment said that 4th and 5th were linked and meant same thing, basically on the principle that an unreasonable search revealing evidence used against you is effectively making you testify against yourself. Bad Law
Olmstead (1928): Eaves dropping in a telephone booth is ok, because it wasn’t a trespass. Overruled (b/c of property rights/trespass reasoning) by Schmerber and Hayden.
Schmerber v. Calif.: Blood taken from the DUI suspect against his will at hospital.
1)Splits the 4th and 5th Amendment rights up:
a)4th involves unreasonable search and seizure, and protects persons, so it’s clearly implicated here: there was probable cause, no warrant—but there was an exigency (liver was filtering out alcohol as time passed—destruction of evidence)
b)New Standard = To protect a person’s privacy (not property) via reasonability test.
- Clause 1 = Protects rights +
- Clause 2 = Privacy Rights protected procedurally through probably cause plus a warrant or warrant exception.
c)5th amendment ONLY applies to “testimony of a communicative nature,” and NOT physical evidence (via property rights)…This is the modern rule.
d)J. Black’s dissent: blood here is communicative in nature:
- thinks there’s no real difference in testimonial/physical evidence, and therefore this violates 5th
Hayden: Δ’s personal effects (here: clothes) seized while in hot pursuit, which was not specifically an instrument of crime.
1)Gov’t thinks they can seize anything they have property right to (like Boyd)
2)Majority kicks out this argument:
a)Nothing in text of 4th makes the distinction between property rights and privacy rights: Mere evidence in one case could be an instrumentality in another case.
b)4th Amendment is really about privacy rights. Same intrusion exists whether government is searching/seizing evidence or instrumentality. Once a warrant dispels a privacy concern, then the gov’t can seize.
3)Expressly overrules mere evidence rule = b/c ct said you can’t protect privacy by protecting property rights.
a)To protect privacy you must do it directly by using probably cause + warrant/warrant exception.
4) Dissent: J. Douglas thinks that property theories actually relate to privacy, and a “limit on the fruit to be gathered limits the quest itself” therefore providing adequate protection.
Hubbell: 2000: Even though Schmerber and Hayden have overruled Boyd, Justices Scalia and Thomas commented that they might be willing to return to it. They feel like compelling evidence is really making Δ be a witness against himself…
Search and Seizure defined:
Katz v. United States: this expressly overruled Olmstead (property rights). Δ used phone booth, and gov’t listened in on conversation. Δ Convicted. This case helps define what a search is, under 4th Amendment.
1)Majority: Justice Stewart: Katz didn’t have property claim, but he did have a privacy claim (combining “persons, houses, papers and effects” into general idea of privacy). Gov’t can’t intrude on what Δ seeks to preserve as private. The 4th Amendment protects people not places.
2)Ct. had to update “Trespass” to include new technologies (aka wiretaps).
3)Concurrence: Justice Harlan actually announced the current test: it is a search if Δ had a “reasonable expectation of privacy”. Current Test= (Reasonable expectation of privacy) Both must be met:
a)Subjective expectation of privacy: Did Δ personally believe it was private?
- Gov’t can NOT wipe this out by informing you or public…it rests on whether you would want that privacy. Subjective test is a paradox so Ct. focuses on Objective test.
b)Objective expectation of privacy: Is the privacy interest something legitimate and justified, and would society recognize the privacy expectation as reasonable? (Nowlin’s Schema = Reviewed by two things):
- Empirical evidence: based on facts of situation—a judgment about the way the world is.
- Normative concerns: court looks at value judgments, about the way in which the world should be, by the following factors:
1)Social value in protecting this privacy
2)Amount of gov’t intrusiveness
3)Degree to which Δ attempted to protect privacy interest
4)Crime Control: does this further C.C. interests?
U.S. v. White: False friend case/Turncoat. Conversations recorded/transmitted in home and heard by agent hiding.
1) Majority: J. White: Court looks at objective factors and decides that Δ’s claim fails, because he didn’t attempt to protect privacy—(assumption of risk when talking to someone)--he assumed risk by divulging incriminating info to another, and further, there’s no difference between recording a conversation, and an informant later reporting info to police.
2) Dissent: Douglas says that this is very intrusive and should not be allowed. (Electronic surveillance goes too far because it chills free speech).
3) Dissent: Harlan says it’s very intrusive and also society has interest in private conversations with others.
Bond v. U.S.: police board bus to check nationality status. Officer squeezes Δ’s luggage and feels hard brick like object. Opens it and finds a brick of methamphetamines.
1)Gov’t argues that Δ’s bag is like open fields, and Δ knew other passengers would touch and feel bag.
2)Majority: Court says this was much more intrusive (probing squeeze) than what other passengers would’ve done—this was examinatory squeezing, and is a violation of 4th, with no probable cause/warrant.
US v. Place: Exposure of luggage in public place to canine was NOT a search. (scent is not protected privacy) and low level intrusiveness with high social value. No reasonable expect. of privacy for field test (sniff, chem. test etc).
California v. Greenwood: 4th amend does not stop prohibit S & S of garbage placed in opaque containers and left for collection on curb in front of home. (no reasonable expectation in garbage).
Kyllo v. US: Thermal imagining device does constitute a search and requires a warrant. Technology is not common place. Social value “in home” is highest; and heat is “inside” the home. Reveals intimate things in home. Emphically, other people would not know how hot your home is.
US v.Jacobsen: Private person (FedEx employee) opened a bag, found drugs and called cops. Private citizen can do this without any problem unless a state actor (police) asked them, instructed them or authorized them to open it. Subsequent search by police is NOT a search so long as their search doesn’t go beyond the private citizen search.
Open Fields and Curtilage
Oliver v. United States: announced the “open fields doctrine”…no warrant needed to search here, because persons don’t have a reasonable expectation of privacy in open fields.
1. No reasonable expectation of privacy
2. No real value of open field privacy against public.
3. People usually just have fences and signs but nothing else to prevent entrance like a house does.
4. Does not meet curtilage analysis because too far away from house.
5. “Open Field” is not listed in fourth amendment list of protections.
However, the S.Ct. said in US v. Dunn, that curtilage (area immediately around home) is considered an extension of the home, and warrant/p.c. needed to search. Majority said we needed bright line rule here. Analysis in determining if warrant needed:
1)Proximity to the home
2)Enclosure
3)Nature of the “uses of the area” in question
4)What steps were taken to resist/protect from observation
*Cts. are generous w/ curtilage. But, will not extend to large plots of land.
Arial Surveillance:
CA v. Ciraolo: 1986: Δ had 6’ outer fence and 10’ inner fence around home, so police got a plane and flew over at 1000’ to spot marijuana plants. Δ asserted unreasonable search.
1)S.CT. said Δ had no reasonable expectation of privacy in what he “knowingly exposes to the public” (Katz).
2)This plane was within FAA reg. airspace and Δ knows that people can see it from the air.
3)Is there a LAWFUL VANTAGE POINT whereby everyday people could see your property.
Florida v. Riley: Police use helicopter at 400’ to come over Δ’s property looking for marijuana.
1)Majority holds that so long as the aircraft was within FAA regulated airspace, and as there was no physical intrusion (no wind, dust, etc. blown on land), it was reasonable and not a 4th Amendment search.
2)O’Connor Concurrence: Aircraft frequently fly at low altitudes, so no reasonable expectation of privacy in open land here.
3)Dissent: Says that aircraft rarely come by at low altitude, so expectation is unreasonable.
Note cases:
1)Air pollution Variance Bd—daylight observation of smoke plumes from open fields is not a search.
2)US v. Knotts: monitoring the whereabouts of car by electronic beeper revealed nothing that invaded Δ’s expectation of privacy.
3)US v. Karo: warrantless monitoring of beeper in person’s residence is search in violation of 4th. Getting it there by consent in container and then knowing container was taken to house is not a search.
4)CA v. Greenwood: no reasonable expectation of privacy in garbage left on curb for pickup.
5)Thermal Imaging Devices: detecting heat from pot lamps outside of residence is not a search; no R.E.P in emissions. Eyeballing thermal transfer is ok (snow on roof), and if you can see something, you can use enhancement. But using device to see into a person’s home is NOT ok. General rule is that the more sophisticated a device the police use to examine your property, the more likely it will be deemed a 4th Amend. Search. Ex: using binoculars to see onto property ok, using $1 billion spy satellite to examine heat in your home not ok. All goes back to REP.
Seizures
What is a seizure?
1)Property: “any meaningful action or interference with a posessory interest” (Jacobsen). De minimis intrusion such as “mere handling “or slight amount (drugs) used for chemical testing is NOT sufficient to be seizure.
2)Persons: an application of physical force (or threat) or show of authority which combines to restrain personal liberty in such a way that a “reasonable person would not feel free to leave.” (Terry, Mendenhall) This doesn’t actually mean would you or I feel free to leave and not answer, but something more. This is based on totality of circumstances (Mendenhall). Mere questions don’t amount to seizure unless:
a)physical force applied
b)display of weapon (even touching holster)
c)D surrounded?
d)Tone of voice from police (is officer commanding-showing authority)
e)Police say Δ’s suspect in crime
f)Keeping ID of Δ may keep him from feeling free to leave
Brower: force (in seizure context) must be applied intentionally—accident of bumping into someone doesn’t count.
In bus search cases--test is “would r.p. feel free to decline officer’s request or terminate interview?” No per se rule that not free to leave on bus. Not feeling free to leave is linked to officers conduct. The SCT feels suspicionless questioning is necessary for police to obtain valuable info.
3) You have been seized if: in handcuffs, in squad car, you have been told you are under arrest, force has been applied (shot, beaten, pepper sprayed).
Three Situations
1. Questioning
US v. Mendenhall: Lady gets off airplane and DEA agents thought she looked suspicious so they questioned her while taking her DL and ticket. They then took her voluntarily to a private room. to do a search where she consented and turned over drugs. COURT TEST IS AGAINST COMMON SENSE because common person does NOT feel they can tell police no or just leave.
Mendenhall TEST: (Must be Heightened Coercion not just questioning)
1) A person is seized physical force or show of authority is applied; and
2) Would a reasonable person believe they are not free to leave?
a. Tone vs Command
b. Did they keep your documents or property
c. Did they pat their gun or weapon.
d. Number of officers, did they surround you etc.
2. Questioning in Confined Spaces
Florida v. Bostick: Guy riding on bus when cops come on (routinely) and ask to see his ticket and DL. The cops then asked for a search of his luggage and told him he could refuse, he consented. Issue is whether his consent came from his belief that he was seized b/c of confined space. Ct. eventually held Bostick was NOT seized.
Ct. said verbal formulation from Mendenhall doesn’t apply b/c guy on bus doesn’t feel he can walk away because if he does the bus will leave.
Bostick TEST: (Does RPP feel free to Decline to cooperate/answer questions)
1) Does a reasonable person believe they don’t have cooperate?
2) Does person feel free to NOT answer questions?