CRIMINAL PROCEDURE:

Investigation and Right to Counsel

Third Edition, Farber, Eskridge, Frickey

 

Outline by Brian Pedigo

Fall 2005, Whittier Law School

Notes: Spoken by Professor Covey

 

1.       THE CRIMINAL PROCESS

a.    Introduction to the Criminal Justice System: in the federal system a ∆ cannot be prosecuted for a serious crime unless a grand jury[1] has reviewed the evidence and decided to return an indictment[2] or the ∆ has waived the right to a grand jury indictment.  Generally judicial approval is required to dismiss a serious charge; in other jx the prosecutor has unilateral discretion to dismiss. In response to crime, the state is authorized to seize and confine people, strip them of their property and liberty, and even put them to death.

                                      i.       Lies, Damned Lies, and Statistics: Criminal cases consume a disproportionately large chunk of court resources compared to their overall contribution to the total caseload. Courts are often required to give priority to criminal cases.  About 1 in 4 criminal case is resolved when the prosecutor decides not to continue or all charges are dropped.

                                    ii.       Readings on the Criminal Justice Process:

1.         Perspectives on the System as a Whole: there are two models – the crime control model and the due process model.  The U.S. has the most elaborate and detailed constitutional protections for criminal defendants of any country in the world; the U.S. also has the 2nd highest incarceration rate of any country in the world (over one million imprisoned as of 1995); 1 out of 193 adult Americans are behind bars.  Some argue that the blame for crime lies with society rather than with the individual offender.  Others argue that the paramount goal should be the ascertainment of truth.

                                   iii.       Stages in the Criminal Process:

1.         Investigation: fact finding and arrest; we are studying only this stage in this class.

2.         Accusation: charging/indictment information

3.         Adjudication: trial/plea; 96% of convictions in Fed cases are obtained as guilty pleas.

4.         Disposition: verdict/sentence; the average sentence in Fed system is about 5 years.

5.         Review: appeal, collateral review

                                  iv.       Distinction between Criminal Procedure, Civ Pro, and Substantive Criminal Law

                                    v.       Plea Bargaining and Sentencing

                                  vi.       Some Distributional Consequences of the Criminal Justice System – Race and Drugs

                                 vii.       The Police

                               viii.       Lawyers and the Trial Courts:

                                  ix.       The Supreme Court

                                    x.       Role of State Constitutions and State Constitutional Law:

b.    The Idea of Due Process:

                                      i.       Defining Due Process:

                                    ii.       Incorporation:

                                   iii.       The Residual Due Process Clause:

2.       THE RIGHT TO COUNSEL

a.    Constitutional Requirements:

                                      i.       Right to Assistance of Counsel at Trial:

                                    ii.       Counsel on Appeal and Other Forms of Assistance:

                                   iii.       Critical Stages of the Proceeding:

b.    Effective Assistance of Counsel:

                                      i.       The Meaning of Effective Assistance:

                                    ii.       Multiple Representation:

c.    Some Implications of the Right to Counsel:

                                      i.       The Right to Proceed Pro Se:

                                    ii.       The Implications of the Forfeiture Statutes:

d.    Sixth Amendment Applied: Lineups, Showups, and Photographic Arrays

3.       THE RIGHT TO BE LET ALONE – 4th and 5th Amendment:

a.    The Rise and Fall of Boyd v. United States:

                                      i.       Note: The 14th Amendment took the Bill of Rights and applied them to the states (in addition to the original application to only the Federal government).  “Due Process of Law” may be interpreted as anything that was important enough to put into the Bill of Rights (i.e. incorporation); or Selective incorporation is the court taking one amendment at a time and applying them to the states.  The Bill of Rights’ intention was not drafted to be applied to the States.  Originalism has the idea that things are different today than they used to be.

b.    The Fourth Amendment:  has two roles – privacy protection and regulating actors (mainly police officers).  State police used to invade privacy until 1961 when the Sup Ct held that the 4th Amendment’s exclusionary rule applied in state and federal cases alike.  Mapp v. Ohio.  There’s a tension between privacy and public safety.  A reasonable search and seizure is one that has a warrant or probable cause.  The most common remedy for a 4th Amendment violation is the exclusionary rule.

                                      i.       Exclusionary Rule: evidence obtained by violating ∆’s constitutional rights may generally not be introduced by the π at the ∆’s criminal trial.  Preserves judicial integrity.  There is a difference between the remedy and the right with regard to the exclusionary rule.  The deterrence argument says that this is the only way to deter bad police conduct (rejecting tort law as sufficient remedy).  The rule only helps criminal defendants.

1.         4th Amendment Applied to States through 14th - Mapp v. Ohio (1961):

a.    Facts: Police entered and searched a home without a warrant and without consent on suspicion of connection to a recent bombing.  Obscene materials were found in the house, in violation of an OH statute.

b.    Issue: Whether in a prosecution in a state court for a state crime the 14th amendment forbids the admission of evidence obtained by an unreasonable search and seizure.  i.e. whether the rule must be applied to the states (not just remedy).

c.    Rule: The 4th Amendment’s right of privacy is enforceable against the States through the Due Process Clause of the 14th Amendment.

d.    Holding: We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.

e.    Reasoning: the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Constitution which it is bound to uphold.  Nothing can destroy a government more quickly than failure to observe its own laws, or worse, its disregard of the charter of its own existence.

                                    ii.       Impeachment Exception (p.724): penalizes ∆s for committing perjury by allowing the prosecution to expose their perjury through impeachment using illegally obtained evidence.  You can’t impeach someone else other than the ∆ (such as a witness).

1.         Illegal Evidence can Impeach - United States v. Havens (5th Cir, 1980)

a.    Facts: ∆, an attorney, was convicted of importing/possessing cocaine.

b.    Issue: Whether evidence suppressed as the fruit of an unlawful search and seizure may nevertheless be used to impeach a ∆’s false trial testimony, given in response to proper cross-examination, where the evidence does not squarely contradict the ∆’s testimony on direct examination.

c.    Holding: A ∆’s statements made in response to proper cross-examination reasonably suggested by the ∆’s direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained and that is inadmissible on the government’s direct case, or otherwise, as a substantive evidence of guilt.

                                   iii.       Scope of the 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.”

1.         Meaning of Searches: (prof. sees it as an activity like peeking or prodding)

a.    Relationship Between Privacy and Property:

                                                                          i.          Public Telephone Booth Private - Katz v. United States:

1.    Issue: whether a public telephone booth can be eavesdropped on to obtain evidence, and whether physical penetration of a protected area is necessary before a search & seizure can be said to violate the 4th Amendment. 

2.    Rule: What a person knowingly exposes to the public, even in his own home, is not a subject of 4th amend protection; but what he seeks to preserve as private, even in a publicly accessible area, may be constitutionally protected.  The requirement to find an unreasonable search is a twofold requirement: for (1) a subjective expectation of privacy (inferred from the evidence) and (2) that society objectively considers reasonable.  (i.e. a reasonable expectation of privacy.)  The reach of the 4th amend cannot turn upon the presence or absence of a physical intrusion into any given enclosure.  Searches conducted without warrants have been held unlawful notwithstanding facts unquestionably showing probable cause.

3.    Holding: the gov’t activities in electronically listening to and recording the words violated the privacy which he justifiably relied while using the phone booth and thus constituted a search and seizure.

4.    Dissent: eavesdropping has been around for ages, and if the writers of the Constitution wanted to preclude it they could have explicitly forbade it in the 4th amendment.

                                                                        ii.          Open Fields not Private - Oliver v. US: ∆ charged with cultivating marijuana.  Officers found it being grown in their backyard without obtaining a search warrant.  Held, it was not a search because protection of a house does not extend to the open fields (the open fields doctrine) because there is no reasonable expectation of privacy of intimate activities which occur there.

                                                                       iii.          Curtilage Doctrine: a four-pronged test:

1.       Protective Steps by owner

2.       Uses to which area is put to

3.       Proximity to home

4.       Included within an enclosure?

                                                                      iv.          Aerial Surveillance not Invasive - Florida v. Riley:

1.             Issue: Whether surveillance of the inside of a partially covered greenhouse in a backyard from a helicopter constitutes a search for which a warrant is required under the 4th Amendment.

2.             Rule: Even if there is a subjective expectation of privacy, an objective showing that expectation is unreasonable will trump the first prong.

3.             Holding: There was no violation of the 4th Amendment.

4.             Note: the rules set the parameters of what the state can do without justification.  You can hover about, you can go into open fields, but you cannot bug places that are expected to be private (phones, hotel rooms, etc.).

                                                                        v.          Squeezing Bags Invasive: meth was found in the luggage in an overhead bin on a bus.  Manipulation of the exterior of the bag constituted a search.  “You can look but you can’t touch.”  Bond v. US.

1.       Note: the police may not utilize as a routine tactic of investigation prodding luggage.

                                                                      vi.          Dog Sniff Tests Not Invasive: a sniff test by narcotics dogs is not a search because it is not intrusive like a typical search.
US v. Place

1.       Note: detecting contraband and only contraband is not as intrusive as the “squish the bag” search.

b.    Knowingly Exposed to the Public:

                                                                          i.          Snitches & NARCS are OK: when contemplating illegal activities and sharing that with someone else, that person assumes the risk in having that evidence used against them.  The court does not want to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable.
US v. White.

                                                                        ii.          Trash Not Protected: the warrantless search and seizure of garbage bags left at the curb outside the house violate the 4th amendment only if owner manifests a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.  However, garbage is property that is intentionally abandoned and exposed to the public, and falls outside the scope of 4th amendment protection.  
CA v. Greenwood.

                                                                       iii.          Financial and Phone records: have been knowingly exposed to the public, so it is not a search, and no warrant is required.

                                                                      iv.          Brian’s Note: the Justices are defining what should be reasonably expected rather than requiring proof that X is in fact reasonably expected (or falsely assumed) by the general public.

c.    Privacy and Technology: anything that a suspect knowingly exposes to the public is exposed to the police as well.  We have no reasonable expectation of privacy in our movements from place to place.

                                                                          i.          Travel not Private: we have no reasonable expectation of privacy in our movements from place to place.
US v. Knotts

                                                                        ii.          Tracer Beepers Violate Privacy: the potential, as opposed to the actual, invasions of privacy is not a search for purposes of the 4th amendment; actual trespass is neither necessary nor sufficient to establish a constitutional violation.  The monitoring of a beeper in a private residence, in a location not open to visual surveillance, violates the 4th amend rights of those who have a justifiable interest in the privacy of the residence.  i.e. when beeper surveillance reveals the location of property that has been concealed from public view, it constitutes a search.
US v. Karo

                                                                       iii.          Heat Sensing Technology is Invasive: obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search – at least where the technology used is not in the general public use. In the home all details are intimate details because the entire area is held safe from prying governmental eyes.  The 4th amend draws a firm line at the entrance to the house. 
Kyllo v. United States:

1.             Dissent: it would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues rather than to shackle them with prematurely devised constitutional constraints.

                                                                      iv.          Factors to Determine Whether a Search Occurred:

1.             Nature of Place Observed – e.g. home v. open area

2.             Steps taken to enhance privacy – e.g. curtains, fence, wall, etc.

3.             Degree of Intrusiveness

4.             Degree of Physical Intrusiveness / Location of Observer

5.             Nature of Activity Observed – what is more private?

6.             Availability of Technique to General Public – e.g. binoculars v. see-through-wall detectors

2.         The Meaning of Seizures:

a.    Free to go about Business is not Seizure - Florida v. Bostick: not all personal interaction between police and citizens involves seizures; only when the officer by means of physical force or a show of authority has restrained the liberty of a citizen may there be a seizure.  Consensual encounters do not implicate the 4th amendment.  The reasonable person test presupposes an innocent person.  If one feels free to go about his business, then there is no seizure.

                                                                          i.          Consensual Conversation: 4th amend is not implicated when the police merely approach an individual in public and ask if he is willing to answer some questions. 
Florida v. Royer.

                                                                        ii.          Not Free to Leave: a seizure occurs when a reasonable person in the shoes of the suspect would have believed he was not free to leave.
Michigan v. Chesternut

b.    Voluntary Consent on Bus - United States v. Drayton:

                                                                          i.          Facts: undercover police asked if they could pat down two guys on a bus. They said “ok”, and the police found cocaine.

                                                                        ii.          Issue: whether police must advise bus passengers during inquisitive encounters of their right not to cooperate.

                                                                       iii.          Held: no seizure, and consent was voluntary; officers do not have to tell them about their right not to cooperate.

                                                                      iv.          Rule: the test is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.

                                                                        v.          Dissent: one may feel he can’t act freely, even in the absence of explicit commands. A police officer who is certain to get his way has no need to shout.

c.    Roadblock Seizures - Brower v. Inyo: police roadblock caused fatal crash of a fleeing felon. Was it a seizure? Yes.  “We think that it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.”

                                                                          i.          Note: you have to have intentional acquisition of physical control by means intentionally applied.  i.e. no accidental seizures.

d.    Police Pursuit Not Seizure - California v. Hodari: suspect tired to run away from police. Is it a seizure when they run after him? No. No seizure until physical contact or submission to authority.

                                                                          i.          Note: the repercussions of this decision is that police will enter a neighborhood, show their authority, and chase the people who run from them.

3.         To Whom Does the 4th Amendment Apply

                                  iv.       Probable Cause and Warrants: The presumptive standard that applies to police searches and seizures is probable cause (substantive standard). The presumptive decisionmaker is a neutral magistrate, in advance of the search and seizure (rule of procedure). Police must meet both the substantive and procedural standard.  The probable cause standard presupposed that the gov’t can invade one’s privacy – as long as it has a good enough reason. No warrants shall issue, but upon probable cause.

1.         Probable Cause Standard:

a.    Totality of Circumstances - Illinois v. Gates: the old Spinelli 2-prong test is abandoned as too rigid and inflexible. Spinelli probable cause must (1) reveal the basis or means of knowledge of the informant and (2) provide facts sufficient to show the veracity or reliability of the informant’s information.  Held, the task of magistrate is simply to make a practical, common-sense decision whether, given all the circumstances (including veracity and basis of knowledge) there is a fair probability that contraband or evidence of a crime will be found in a particular place.  There should be deference to the magistrates who issue the warrant who only need a substantial basis in issuing the warrant.

                                                                          i.          Note: probable cause is just a procedural hurdle for police to have to comply with.

2.         Warrant Requirement:

3.         Exceptions to the Warrant Requirement: searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th amend – subject only to a few specifically established and well-delineated exceptions.

a.    Exigent[3] Circumstances: the policy behind allowing the exigent circumstance exception to the warrant requirement is that officers should not be required to get a warrant when they can’t feasibly do so.  Warrantless search must end when exigency ends.

                                                                          i.          Emergency Threatening Life or Limb: the “murder scene exception” is inconsistent with the 4th and 14th Amendments.  A warrantless search of a dwelling is not constitutionally permissible simply because a homicide has recently occurred there.
Mincey v. Arizona

                                                                        ii.          Hot Pursuit of