CRIMINAL PROCEDURE

Sum & Substance

Professor Joshua Dressler

I.

INTRODUCTION: STUDY POINTS

Criminal procedure is about police practices and the methods by which the police go
about investigating crime. It deals with the limitations that the Constitution places on the
police. In short, it is a course in constitutional procedure.
There are two competing concerns in criminal procedure:
i.

Crime.

ii.

Fear of governmental abuse.

Study Tip
Criminal procedure is almost exclusively made up of United States
Supreme Court cases, unlike in many areas of the law. For this reason, the following
strategies may be helpful for the study of criminal procedure:

II.

i.

Learn case names.

ii.

Read concurring and dissenting opinions.

iii.

Notice the vote breakdown in the Courts opinion.

iv.

Notice who the justices are and how each typically votes.

GENERAL CONSTITUTIONAL DOCTRINES

There are three, relevant constitutional law doctrines: Retroactivity, Harmless Error, and
Incorporation.
A.

Retroactivity Doctrine.
1.

Ask the Following:

i.

Does new rule apply retroactively, and, if so, to what

extent?

OR
ii.

2.

B.

C.

Are new constitutional rules to be applied retroactively? If

so, how far back do they go?

Teague.
a.

New rules only apply to cases before a conviction is final.

b.

Two exceptions:
i.

If announced rule places entire course of conduct

outside of the reach of the criminal law.

ii.

If the new rule requires the observance of a

watershed rule of criminal procedure.

Harmless Error Doctrine. On appeal, have to demonstrate not just that

an error occurred, but that the error was prejudicial to ones rights.
1.

Distinguish Between Constitutional and Nonconstitutional Errors.

2.

Two Constitutional Errors:

i.

Constitutional trial error: Apply Chapman Doctrine.

ii.

Structural defect in the trial mechanism: Per se

rule/conclusively presumed prejudicial.

Incorporation Doctrine. Bill of Rights places no limit on states. But,

Fourteenth Amendment imposes certain limits on state governments.
Fundamental Rights Doctrine: Most rights in criminal procedure are
fundamental rights and therefore apply to states.

III.

FOURTH AMENDMENT
A.

Overview. The Fourth Amendment guarantees protection in only four

areas: Persons, houses, papers and effects.
1.

Applies Only to Searches and Seizures.

2.

Requires Reasonableness.

3.

Warrant Requirements:

4.

B.

C.

i.

Probable cause.

ii.

Reliability through oath and affirmation requirement.

iii.

Particularity of place to be searched and items to be seized.

Additional Considerations:
i.

Rights must have remedy (here, Exclusionary Rule).

ii.

Wrongdoer must be a governmental agent.

To What Does Fourth Amendment Protection Apply?

1.

Persons.

2.

Houses, including any place people live even temporarily.

3.

Papers.

4.

Effects. Virtually anything else, but does not include real property.

What Is a Search?

1.

2.

Katz v. US.
a.

Fourth Amendment protects people, not places.

b.

What a person knowingly exposes to the public, even at

home or in the office, is not subject to the Fourth
Amendment.

c.

The Fourth Amendment is invoked if information is

sought from one who has tried to keep something
confidential.

d.

Harlans critical concurring opinion: A search is an

intrusion on ones reasonable expectation of privacy.
1)

Subjective expectation of privacy.

2)

Expectation must be both legitimate and reasonable.

Surveillance of Conversations.
False friends/misplaced confidence.

3.

Open Fields Doctrine.

House and curtilage protected. No Fourth Amendment concern
if search is in a true open field.
a.

Curtilage: Land surrounding and associated with the home.

b.

Look to four factors:

i.

Proximity.

ii.

Whether an enclosure surrounds the house.

iii.

Nature of use.

iv.

Steps taken by resident to ensure privacy.

4.

5.

No Expectation of Privacy In:

i.

Financial information provided to the bank.

ii.

Phone numbers you dial.

iii.

Activities within curtilage that can be unintrusively

observed from navigable airspace.

Advanced Technology.
Thermal imaging device used to detect heat in the home is a
search, i.e., there is a reasonable expectation of privacy.

Study Tip

D.

Factors used in determining borderline cases:

i.

Nature of place observed.

ii.

Steps taken to enhance privacy.

iii.

How intrusive was police activity?

iv.

Degree to which surveillance requires a physical intrusion.

v.

Nature of activity being observed.

What Is a Seizure? Two types: Property and Persons.

1.

Seizure of Property.
a.

Occurs when there is a meaningful interference with an

individuals possessory interest in the property.

b.

Police can only seize four things:

i.

Contraband.

2.

E.

ii.

Fruits of a crime.

iii.

Instrumentalities of a crime.

iv.

Mere evidence of a crime.

Seizure of Persons.
a.

When is a person seized? When a reasonable person, as a

result of force or show of authority is not free to go, and a
reasonable persons would consider herself not to be free to
go. This can be by arrest or even brief forcible detention.

b.

In pursuit-type engagements, no seizure unless touched or

the person submits to authority (e.g., by stopping or
throwing up his arms in a surrender posture).

Probable Cause.
1.

Two Rules of Thumb:

i.

All arrests must be supported by probable cause.

ii.

Searches or seizures must ordinarily be supported by

probable cause, but there are many exceptions to this.

2.

Probable cause: substantial basis (more than a mere suspicion).

3.

What Type of Information Should a Police Officer Consider and

Present to the Judge to Ask for a Warrant?
a.

Anything officer personally observed is best.

b.

Hearsay.
1)

Appropriate under some circumstances.

2)

3)

Two-pronged test (from the Aguilar-Spinelli case,

now overruled):
i.

Basis of knowledge of informant.

ii.

Reliability of informant.

Aguilar-Spinelli Today.
i.

4.
F.

Aguilar-Spinelli prongs remain critical.

However, today police do not have to
present proof of both prongs. Instead,
under Illinois v. Gates, the strength of one
prong can compensate for the weakness or
absence of the other. The totality of the
circumstances of the hearsay information is
key.

Probable Cause is an Objective Concept.

Warrant Requirement.
1.

Overview.
Searches conducted without a warrant are per se unreasonable
under the Fourth Amendment, subject to specific exceptions,
discussed later.
a.

If there is a warrant, the defendant cannot challenge arrest

unless there is substantial evidence of three factors:
i.

False statement in affidavit.

ii.

Made intentionally or with reckless disregard for

the truth.

iii.

False statements led to the finding of probable

cause.

b.

Warrant must state person and property to be seized.

c.

Warrant must be executed in a reasonable manner.

d.

Knock and announce rule.

1)

Police must knock, announce intrusion, and request

admission.

2)

Three exceptions (only reasonable suspicion

required):

3)

e.

G.

i.

Threat of violence.

ii.

Threat of destruction of evidence.

iii.

Hot pursuit.

Reasonable suspicion is a lesser standard of proof

than probable cause. Police must have more than a
hunch, but not much more.

There is no constitutional need for an arrest warrant if

arrest is made in a public place. But, no warrantless,
nonconsensual entry into a persons home to complete a
routine felony arrest. A doorway is public. If the suspect
retreats into house, entry is justified by hot pursuit
exception. To arrest in a third-persons home, need an
arrest warrant and a search warrant.

Search Warrant Exceptions.

1.

Exigent Circumstances.

2.

SILA: Search Incident to Lawful Arrest.

a.

For exception to apply, person must be taken into

custodynot just a traffic citation.

b.

Scope:
i.

Can search the arrestee and the area surrounding

arrestee (the grabbing area).

ii.
c.

3.

4.

Variation: In a search incident to lawful arrest of an

occupant of a car, police may contemporaneously search
arrestees person AND entire passenger compartment of
vehicle, and all containers, whether open or closed.

Motor Vehicle Exception.

a.

For a search of a motor vehicle not incident to arrest, an

officer may conduct a warrantless search of the car if there
is probable cause.

b.

Motor home: Treated as a car if it is readily capable of use

as a vehicle and not in a place a home would usually be
found (e.g., a mall parking lot).

Inventory.
a.

b.

5.

Purpose of search: to seize weapons and criminal

evidence that may otherwise be destroyed.

Legitimate reasons to inventory without warrant or

probable cause:
i.

To protect car owner against theft of property.

ii.

To protect police against false claims of theft.

iii.

The right to look for dangerous instrumentalities

that could endanger police or others.

Exception only applies when there is some existing written

inventory procedure.

Plain View, Plain Touch Doctrines.

a.

Justifies only warrantless seizures, not searches.

b.

Three conditions must be met:

i.

Officer observed object in question from lawful

vantage point.
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6.

Officer had access to the object from lawful vantage

point.

iii.

Officer had probable cause to seize.

Validly Obtained Consent.

a.

7.

ii.

In these questions, ask:

i.

Voluntary? Based on totality-of-circumstances.

Knowledge of the right to refuse is not a
prerequisite.

ii.

Did officers actions exceed scope of consent

given? If so, search invalid.

iii.

Can a third person consent? Yes, if but only if the

third person has joint possessory interest in the
property in question.

iv.

What if mistaken about persons ability to consent?

Apparent authority doctrine: If a person has no right
to consent (they do not have a possessory interest in
property), consent is still valid if officer reasonably
believed person had authority.

Terry v. Ohio / Terry Doctrine / Stop and Frisk.

a. To conduct brief-detention seizure, police have have
reasonable suspicion (less than probable cause) that crime is
afoot.
b. To conduct a brief pat-down search for weapons, need
reasonable suspicion that subject is armed and dangerous.

8.

Terry Extended.
a.

Court frequently now uses the Terry reasonableness

balancing approach, measuring the scope of the
search/seizure versus the governmental interest for the
police action.
10

9.

b.

Extension of Terry: When police lawfully stop a car and

have reasonable suspicion that there may be a weapon in
the vehicle, police may conduct a limited weapons search
of the entire passenger compartment of the automobile.

c.

Extension of Terry: Protective Sweeps. When making

arrest in a home, if police have reasonable suspicion there
is someone else in house that may represent a threat to their
safety, they may sweep home looking for persons.

d.

Extension of Terry: If police have reasonable suspicion that

some container contains criminal evidence, they may
temporarily detain the container in order to conduct a more
thorough investigation.

Check Points and Other Special Governmental Needs.

a.

Special needs beyond the normal need for law enforcement

may make getting a warrant impracticable.

b.

No level of suspicion is required for sobriety check points.

c.

Public school searches are okay if:

i.

There is a reasonable suspicion that search will

reveal evidence that student violated a school rule
or the law.

AND
ii.
d.

The search is not too intrusive.

Drug and alcohol testing without warrant or suspicion.

1)

Look for jobs pervasively regulated by the

government.

2)

Look for a connection between job requirements

and employers concern.

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IV.

Randomness.

4)

Empirical evidence of need.

5)

Measures taken to ensure dignity of person tested.

STANDING
A.

When Can a Person Make a Fourth Amendment Challenge? Does an

individual seeking to have evidence excluded based on the grounds of a
Fourth Amendment violation have standing to challenge police conduct?

B.

Only If He Is a Victim.
1.

2.

V.

3)

Legitimate Expectation of Privacy.

a.

A person has standing to contest a search if he has a

legitimate expectation of privacy in the invaded place.

b.

Overnight guests in a home have a reasonable expectation

of privacy.

There May Be Another Exception When Individual Has a

Substantial Connection to the Home (even if not overnight
guest).

EXCLUSIONARY RULE
A.

B.

Two Purposes:
i.

Judicial integrity. No longer applicable.

ii.

Detour police Fourth Amendment violations.

Applicability. Applies only to use of evidence introduced in the

prosecutors case-in-chief, i.e., the exclusionary rule does not apply for
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purposes of impeachment. Also, if a warrant is obtained, the exclusionary

rule does not apply, although the warrant was invalid, if the police acted
on the basis of an objective good faith belief that the warrant was valid.
C.

Fruit of the Poisonous Tree.

1.

Exclusionary Rule Extends to Direct and Indirect Products of

Violation.

2.

Exceptions:

3.

VI.

i.

Independent source doctrine.

ii.

Inevitable discovery rule.

iii.

Attenuated connection doctrine/Wong Sun Rule.

In regard to attenuation/Wong Sun rule, look To:

i.

Temporal proximity/length of causal chain.

ii.

Subsequent acts of free will.

iii.

Flagrancy of violation.

iv.

Totality of the circumstances.

ENTRAPMENT

Not a constitutional law doctrine, but a criminal law defense; nevertheless covered in
many criminal procedure classes and texts.
A.

Two Tests: Subjective and Objective.

1.

Subjective (Federal and Some States).

When a governmental agent induces an innocent (not predisposed)
person to violate the law.

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2.

Objective (Some States).

Would police inducements have caused a hypothetically lawabiding citizen to commit the crime?

B.

VII.

How Is Predisposition Determined?

POLICE INTERROGATION
A.

Fourteenth Amendment Due Process Clause. What form of process is a

person due when interrogated by police? Due process is violated if police
obtain an involuntary confession. Remedy: Confession is inadmissible at
trial.

B.

Fifth Amendment Privilege Against Self-Incrimination. No person

shall be compelled to bear witness against himself.
Fundamental Right: It is a fundamental right, applicable to the states.
(Courts still often talk in terms of due process when dealing with states.)
The Fifth Amendment is not violated unless confession is used in court,
but due process clause is violated as soon as the confession was coerced,
even if the statement is not used at trial.
The Fifth Amendment Exclusionary Rule is absolutecannot even use the
confession for impeachment purposes.

C.

Miranda v. Arizona. Any statement obtained as a result of custodial

interrogation may not be used against the speaker unless the prosecutor
proves that police used certain procedural safeguards to preserve the
defendants Fifth Amendment privilege against self-incrimination.
1.

States Are Free to Make Alternative Guidelines.

2.

Otherwise, States Must Follow Miranda:

i.

State clearly and unequivocally that suspect has the right to

remain silent.

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ii.

State the consequences of giving up that right (anything

said can and will be used against defendant).

iii.

Inform of right to consult with a lawyer and to have lawyer

present during interrogation.

iv.

Inform that a lawyer will be appointed at no cost to

indigent suspect.

3.

Suspect May Waive His Rights.

4.

Dickerson v. US: Court Says Miranda Is a Constitutional Rule.

Therefore, legislation seeking to overrule it was unconstitutional.

5.

When Dealing with Miranda, Ask:

i.

ii.

6.

Was the defendant in custody?

(a)

In custody means under arrest or tantamount to

being under arrest.

(b)

How would a reasonable person in the suspects

shoes feel about his situation?

Was there interrogation?

(a)

Express questions constitute interrogation.

(b)

Any conduct by police that is the functional

equivalent of express questioning also qualifies.

Waiver.
a.

Must prove by a preponderance of the evidence that:

i.

Waiver was voluntary.

AND

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ii.
b.

7.

8.

Waiver was knowing and intelligent.

Signing a written waiver is not necessarily a waiver but

may be an implicit waiver.

Effect of asserting rights.

a.

If a person asserts the right to silence, police must stop

asking questions and scrupulously honor the right.

b.

No bright-line rule. When analyzing these cases, ask:

i.

For how long did policed honor silence?

ii.

Was suspect re-Mirandized?

iii.

Did officials come back and talk about the same

crime?

iv.

Did different officers know about assertion of right

to be silent?

Invocation of Right to Have Attorney Present.

If suspect invokes Miranda right to consult with attorney, then the
suspect is not subject to further interrogation until suspect has an
attorney present, unless suspect himself initiates further
discussions about the crime.

9.

10.

Exceptions to Miranda (when statement is admissible although

custodial suspect was interrogated without warnings):
i.

Public safety exception.

ii.

Covert custodial interrogation exception.

iii.

Routine booking exception.

What Is Scope of Miranda Exclusionary Rule?

16

a.

Miranda-less statement can be used for impeachment

purposes.

b.

A fruit of a Miranda violation

BUT
One fruit situation does invoke fruit-of-poisonous doctrine: An
official purposely violates Miranda, gets confession, then gives
Miranda gets waiver, continues interrogation until he gets the
same confession, and then seeks to introduce second confession
(fruit).
D.

SIXTH AMENDMENT RIGHT TO COUNSEL

In all criminal prosecutions, the accused has the right to counsel in his defense.
1.

2.

Points.
a.

Prosecution means it is not triggered until formal judicial

proceedings begin.

b.

No custody requirement/defendant can be out on bail.

c.

Applies only when the police deliberately elicit an

incriminating statement.

d.

Right is crime-specific. If indicted for crime X but not

crime Y, can be questioned about Y without counsel.
(However, Miranda might apply.)

Waiver Under the Sixth Amendment.

a.

Covert interrogation: No way one can waive right to

counsel.

b.

Overt interrogation: One may waive right to counsel.

1)

If defendant asks for counsel, police cannot

interrogate any further unless lawyer is present or

17

the accused of own volition initiates a conversation

about the crime with police.
2)

If defendant indicted or arraigned but does not ask

for a lawyer, waiver is possible, at least if he has
been adequately informed of his rights once the
Sixth Amendment is in play.

VIII. PRETRIAL IDENTIFICATION PROCEDURES

A.

Cases Involving Pretrial Identification.

1.

2.

3.

4.

Distinguish Between Two Constitutional Rights:

i.

Sixth Amendment Right to Counsel.

ii.

Due Process Clause.

Types of Identification.
a.

Corporeal (line-ups, and one-on-one identifications)

b.

Non-corporeal (witnesses shown photographic displays).

Sixth Amendment Right to Counsel.

a.

One has a Sixth Amendment right to counsel at any

corporeal identification procedure after indictment or
arraignment.

b.

No right to counsel for noncorporeal identification

procedures at any stage, and no right to counsel for
corporeal ids before indictment or arraignment.

c.

Defendant can waive right.

d.

If there is a Sixth Amendment violation, evidence of the

pre-trial identification is not admissible at trial.

Due Process Clause.

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IX.

a.

Right applies at all stages (before or after indictment), to all

identification procedures (corporeal or noncorporeal). The
Due Process Clause is violated if the procedure was
unnecessarily suggestive.

b.

The real key is whether the identification was reliable.

c.

Remedy for Due Process violationidentification is

inadmissible at trial.

RIGHT TO COUNSEL AT TRIAL

A.

Felony Cases. A defendant has a constitutional right to counsel in all

felony cases.

B.

Misdemeanor Cases. A defendant has a right to counsel in any

misdemeanor case where a jail sentence will in fact be imposed if a
conviction occurs.

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