Criminal Procedure Outline

Topics: Fourth Amendment to the United States Constitution, Searches and seizures, Criminal law Pages: 23 (9604 words) Published: February 19, 2015
Criminal Procedure Outline
Spring 2002
Dean Robert Power

I. Introductory Materials
a. Civil Cases
i. Private causes of action
ii. Remedy is compensation (usually)
b. Criminal cases
i. Public Remedies in 99% of the cases
ii. The other 1% will be civil unless the "compensation" is so punitive as to be regarded as criminal penalty 1. Remedies
a. Generally fines AND/OR
i. If the statute says "fine" it is probably criminal
ii. If the statute says "civil fine" it is probably civil unless the civil fine is for an extraordinary amount ("civil fine of 1,000,000,000") b. Jail
i. Jail is automatically criminal UNLESS
1. Sex offenders are in civil incarceration in order to provide treatment 2. Contempt
a. Civil-jail is not mandatory: only persuasive tool to enforce order of the court b. Criminal-mandatory payment or jail-time
i. COMPARE Clinton Hypo: mandatory payment of fine for contempt was deemed civil c. Incorporation Doctrine
i. Duncan v. Louisiana: Whether the right to a jury trial under the 6th Amendment is incorporated through the 14th Amendment to apply to the states 1. Majority view: (J. White)—Selective Incorporation—The rights in the Bill of Rights that are important to the American system of justice and other similar rights not enumerated are incorporated to apply to the states 2. Concurring: (J. Black)—Total Incorporation—All of the rights in the Bill of Rights, and no others, are incorporated to apply to the states 3. Dissent (J. Harlan)—Federalism View—14th Amendment involves liberty and due process, ideas of fundamental fairness. As such, whether a right in the Bill of Rights applies to the states should be determined on a case-by-case basis with a view to the principles and fundamental aspects of society ii. Floor v. Ceiling

1. The federal Constitution is a floor: grants only minimal rights 2. State Constitutions can be a ceiling: may grant more protection than the federal Constitution.

II. The Fourth Amendment—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.
a. Introduction
i. The government search and seizure of persons, houses, papers, and effects must be reasonable ii. Warrants shall have probable cause supported by oath/affirmation describing the searches and/or seizures. iii. The Reasonableness and the Warrant Clause

1. Generally, for a search to be reasonable, there must be a warrant: otherwise, the search or seizure is presumed unreasonable. iv. "The People"
1. Fourth Amendment applies when a US government searches or seizes a US person v. Probable Cause
1. Minimum showing to support application for a warrant
vi. State Action
1. Only a US government can be bound by the search or seizure—the state must act 2. Private action does not trigger Fourth Amendment
a. Other legal remedies are available (theft, larceny, etc)
3. IF private action is so closely related to the government so as to be regarded as acting on the government's behalf, then the private actor may be subject to the Fourth Amendment under the law of agency vii. Remedies

1. Suppressed evidence at trial for violation of the Fourth Amendment

b. Identifying Searches or Seizures: Step One
i. Search occurs where
1. Subjective (Actual) expectation of privacy exists in the person searched a. Steps taken to show private activity AND
2. That is a reasonable expectation of privacy recognized by society as legitimate a. Katz—opens up telephone booth, closes door, pays money, and has a conversation with another. Police placed listening device on booth. Katz had an actual expectation of privacy because he closed the door behind him, paid money, used the telephone, and there was no one else around. At that time, society recognized...
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