CRIM PRO SKELETAL o Factors in the Making of Criminal Procedure o Balance Security v Individual Rights  Abstract: protects rights

of public  Specific Case: protects rights of criminals o Federalism: Balance fed supervision v State autonomy  State v Nat l Govt  Police Powers (power to regulate on behalf of public safety, welfare, and morality) v Commerce Clause and Bill of Rights (Incorporation) o Racism o Approaches to Coerced Confessions and Illegal Evidence o Deontological  Morally wrong: and it does not matter whether it works or not. o Consequentialist/Utilitarism  It s wrong if it does not work (i.e. too many false positives)  Types y Act Utilitarism: evaluate pros and cons of every individual moral act. i.e. in this case, benefits outweigh the cons y Rule Utilitarism: have a clear rule y EXAM: will not be asked to differentiate between Rule and Act Utilitarism y How would we be questioned about this on exam  False Positives: when results wrongly affirm  False Negatives: when results wrongly deny o 14th Am and Incorporation o 14th Am due process clause incorporates the Bill of Rights, and makes their restrictions applicable to the states o Selective Incorporation: Parts of 1-8 Am are fundamental rights, vital to due process. o Assign counsel to Ds unable to employ counsel, and unable to make own defense (Powell v Alabama) o Confessions cannot be used to convict D if obtained through physical torture (Brown v Miss.) o Jury trial in criminal cases is fundamental to essence of American scheme of justice (Duncan v Louisiana) o 4th Am Protection Against Unreasonable Searches, Seizures, and Arrests 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. o The People  Natural Rights Theory: Constitution and Bill of Rights apply to persons even if they are in another country  Compact Theory: only applies to US citizens and maybe some others. o Remedies

Civil suit against officer (weak case) Criminal complaint Administrative complaint (i.e. against PD) Exclusionary Rule y 4th Am does not permit evidence obtained as a result of unlawful search to be used against D (Weeks) y All evidence discovered as a result of a S&S conducted in violation of the 4th Am shall be inadmissible in State court proceeding (Mapp) o Search Any Govt intrusion upon a reasonable expectation of privacy if following is present.  Governmental conduct req d  Expectation of Privacy y Katz Test: Person manifested an actual (subjective) expectation of privacy, and it is an expectation society recognizes as reasonable (objective) o Barn v Curtilage: barn not within curtilage = no REP (Dunn) o Bags: squeezing a passenger s bags = REP (Bond) o Wiretapping  Pre-Privacy Cases y Trespass Rationale: surveillance w/out trespass and without seizure of object = No search or seizure b/c physical invasion of property req d (Olmstead) y Phone held against wall OK, no trespass (Goldman) y Agent w/wire attached walks into business OK b/c no trespass, invited (Lee) y Eavesdropping via electronic device poked through hole into a premise w/consent of neighbor NOT OK, trespass (Silverman)  Post-Katz y REP: 14th Am protects persons, not places from unreasonable intrusion where Govts action violates the privacy upon which D justifiably relied. y Totality of Circumstances o Thermal Imaging Device: use of sense-enhancing device not commonly used = search (Kyllo) y Persons, Not Places protected under 4th Am o No REP in object held out to Public  Band records  Abandoned property  Open fields: surveillance of interior of partially covered greenhouse from helicopter not a search    

(Riley?). What person knowingly exposes to public, even in own home/office (Katz).  Telephone number log  Canine Sniff  False confidence  Airways: police traveling in public airways at legal altitude not required to obtain warrant to observe that which is visible to the naked eye (Ciraolo)  Discarded Garbage (Greenwood?) Search With Warrant y Searches and Seizures authorized by a valid warrant are always deemed reasonable if: o Issued by neutral magistrate. o Particularly described things to be seized and the person or place to be searched. Clear lack of particularity invalidates both the warrant and a possible claim of good faith reliance. o Based on sworn affidavit establishing probable cause to justify the search.  Probable cause: warrants are lawfully issued only where the facts and circumstances within the affiant s knowledge are sufficient to warrant a person of reasonable caution to believe that the evidence in question will be found. y Probable cause does not always mean correct cause  Affidavit may be based upon hearsay y Uncorroborated hearsay will supply the requisite probably cause if it meets the following test (?) o Affidavit must show my a totality of the circumstances that a fair probability exists that contraband or evidence of a crime will be found in a particular place. Considerations include reliability, credibility of informant, basis of knowledge, police corroboration, decl against interest. (Gates?) y Administrative Searches o Health and Safety Code inspections: requires warrant if consent is not given. Warrant requires diluted form of probable cause. y Electronic Surveillance (covered ?) Searches Without Warrants