Criminal Procedure Outline

Criminal Procedure Outline
Text: Comprehensive Criminal Procedure, Allen, Stuntz, Hoffmann, and Livingston. 1st Edition.
School: UC Davis School of Law
Professor: Professor Joh
Year: Fall, 2004

Format
I. The Idea of Due Process
II. The Right to Counsel
III. Rise & Fall of Boyd
IV. The Fourth Amendment
V. The Fifth Amendment

I. The Idea of Due Process

A. Supreme Court as the Ultimate Regulator of Police Power

1. Piecemeal decisions

a. Very limited number of criminal cases heard per year (i.e. limited docket)

(1) Plus, criminal justice process after Δ is arrested—some cases never go to trial, some don’t make it to appeal, etc.

b. Each local entity must interpret the opinion as they see fit

2. Problem of enforcement: The S.Ct must rule w/in particular social constraints such that the lower courts and police will actually follow their rules

3. Is the Supreme Court really in touch with what the police do on a day-to-day basis? Are they in touch with social reality?

B. Stages of Due Process

1. Founding—Nothing for the first 100 years

2. Warren Court (1960’s)

3. Present-day jurisprudence

a. Incorporation Doctrine

(1) Hurtado v. CA (1884): Δ charged and convicted of 1st degree murder. Δ charged by information, not grand jury indictment. Δ arguing that due process requires indictment by a grand jury for a serious crime in state court via 14A (much like the process in federal court as guaranteed by the 5th A).

(a) Historical argument (i.e. that the Magna Carta would’ve guaranteed a grand jury) is rejected by the majority b/c the system or process will change and be molded into new forms.

(b) Textual argument: That 14 A is meant to mean the same thing as the 5th A.

i) Majority: No b/c 5th says, “grand jury indictment…due process of law,” and 14th says, “No state shall deprive any person of due process of law.”

ii) Cannot read 5th A DP into the 14th A b/c would render the other words superfluous.

iii) Thus, 5th and 14A are not exactly the same thing.

iv) Thus, a grand jury indictment is not inherently included in the notion of “due process”

i) Accuracy or prevent race-based treatment

ii) Rule of law: Govt will not use arbitrary action against you

iii) Based on a “shocking the conscience” standard -- unpredictable

(d) Justice Harlan, Dissent: Due process incorporates ALL of the bill of rights. 14A’s DPC is meant to take in all 10 amendments into its concept of DPC.

i) Is much more predictable

(2) Duncan v. Louisiana: Δ convicted of simple battery. Duncan, an African-American, accused of touching or hitting an elbow of a white boy. Δ arguing that DP entitles him to a trial by jury.

(a) Test: Is a jury trial a right “fundamental principle of liberty and justice which lie at the base of all our civil and political institutions?”

(b) Holding: 14th A incorporates the 6th A right to a jury trial in state court for all criminal cases which would require a right to a jury trial in federal court. RIGHT TO JURY = MATTER OF FUNDAMENTAL FAIRNESS

i) Ct does not draw a BLR as to what does or does not get a jury trial.

a) Today, 6 months is the dividing line b/t petty and non-petty

ii) Ct moving from a fundamental standard → selective incorporation (i.e. S. Ct considering cases piecemeal and incorporating more amendments)

iii) Criticism: Ct avoids the race/discriminatory factor. Does not address the status of Af-Ams. Ct is crafting race-neutral and procedural rights.

II. The Right to Counsel

A. Right to Trial Counsel

1. State of the law prior to Gideon.

a. 14A DPC requires states to provide counsel required in capital cases—called the special circumstances rule. Powell v. Alabama.

b. In state court, no lawyer unless it is a hard or complicated case. Ct does not see rt to counsel as fundamental fairness. Betts v. Brady (1942).

2. Gideon v. Wainwright (1963): Δ accused of theft; sentenced to 5 years (i.e. felony trial). Asked for a lawyer, but was refused.

a. Held: Counsel must be appointed in all felony cases.

(1) Here, in state ct, so Δ is entitled to counsel via 14A.

b. Overrules Betts. Seeing an incorrect reading of the DP (i.e. starting to move towards incorporation).

c. Majority: Betts was a departure from precedent. It prevented some from getting fair trials. Due to the adversarial system of justice, defense counsel is necessary.

(1) Justice Harlan, concurrance: Special circumstances rule has been eroded b/c it has been employed frequently. Limit the incorporation of the 6A via 14A.

3. Scope of the right to counsel—Misdemeanor cases

a. Arbersinger v. Hamlin (1972): Δ argued that if all are entitled to a jury trial, then Δ should also be entitled to the rt to counsel. S.Ct: No, rt to trial by jury ≠ rt to counsel. Δ may not be imprisoned for any offense—whether petty, misdemeanor, felony—unless represented by counsel at trial.

(1) Is S.Ct fearing cost of having to provide counsel to everyone?

(2) Criticism:

(a) Doesn’t ct suggest that Δ atty would ensure a fair process?

(b) Also, are legal issues in misdemeanors any less complex than in felony cases?

(c) Justice Powell (concurs w/ result, but disagrees w/ the breadth): Should have a case by case determination of whether counsel is required—whether or not imprisonment is involved.

i) Fears pre-judgment of the case to ensure compliance w/ Arbersinger, and the pressure not to appoint counsel in every case.

b. Scott v. Illinois (1979): Δ convicted of theft (i.e. misdemeanor) and fined $50 after a bench trial. The statute set maximum penalty for the offense as $500 or one year in jail, or both. Scott arguing that where imprisonment is authorized, he should be entitled to a right to counsel.

(1) Held: Potential sentence does not matter. Actual sentence to imprisonment is the factor that will trigger the right to counsel.

(2) Brennan dissent:

(a) Authorized imprisonment is more faithful to Gideon.

(b) Inherent problem b/c won’t actually know the sentence until after the trial is over.

c. Collateral consequences

(1) Nickels v. US (1994): Misdemeanor conviction w/o counsel. Repeats the offense. The 1st conviction enhances 2nd conviction’s sentence. Violation of Scott?

(a) Held: No. Uncounseled convictions may be used to enhance a sentence for subsequent charges.

(2) Alabama v. Shelton: Shelton received a suspended sentence (i.e. probation). Breaks his probation and is imprisoned. No attorney was at the misdemeanor hearing. Violation?

(a) Held: Yes. Shelton is imprisoned for the same offense. State cannot impose a suspended sentence where the Δ might end up in jail..

d. Reconciling Arbersinger/Scott w/ Gideon: Counsel is required:

(1) When facing a felony in the abstract

(2) In misdemeanor cases where the Δ is actually jailed.

B. Counsel on Appeal

1. No federal xnal rt to appeal. McKane v. Durston (1894).

a. BUT…some states recognize a xnal rt to appeal. Most states provide an appellate process via state law or state constitution.

2. Chronology of right to counsel on appeal:

a. Griffen v. Illinois (1956): Δ entitled to appeal as of right. Needed to pay for trial transcript in order to appeal. USSC:: Violation of DPC by preventing indigent Δ’s from their rt to appeal.

(1) Rationale: Even though no federal xnal rt to appeal, if the state provides for an appeal as a matter of right, they cannot effectively prevent indigents from accessing the system.

b. Douglas v. CA: CA statute—Indigent Δs get appointed atty on appeal as of right only if the appeals court decides it will be helpful for Δ. USSC: Violates DP. CA cannot pre-judge cases

(1) Rule: If on appeal as of right, counsel required as a matter of DP.

c. Ross v. Moffitt: Δ asking for atty on discretionary appeal (i.e. to state S.Ct). Δ received atty @ trial and at the appeal as of right. USSC: States not required to provide counsel for discretionary appeals.

(1) Rationale (look @ DPC and EPC in 14A):

(a) DPC (governs relationship b/t Δ and state): @ trial level, atty essential as a shield, but @ appellate level, atty is more like a sword. Also, @ trial level—presumption of innocence, but @ appeal—Δ is convicted beyond a rsbl doubt, so no more presumption of innocence.

(b) EPC (governs relationship b/t Δ and other similarly situated Δs): EPC does not guarantee absolute equality, but only that Δ has meaningful access. Here, Δ has access to review (i.e. on appeal as of right). State S.Ct is more interested in legal principles to the state, conflicts of law, or matters of public interest.

i) Once a state opens up a state of play, it must be fair. But the North Carolina S.Ct has nothing to do w/ the USSC. Thus, NC shouldn’t have to pay for Δ to go up to USSC.

(2) Situation differs from Douglas b/c:

(a) Difference b/t need and desire to go further

(b) Already briefed issues @ appeal, so can further case on own

C. Effective Assistance

1. Evitts v. Lucey (1985): Evitts’ appeal (of right) denied b/c atty failed to file papers. USSC: If state provides for a rt to appeal, must act constitutionally. As a matter of DP, must provide an atty (i.e. what the states owes to Δ on appeal). Not an EPC case. If guaranteed an atty on 1st appeal, then the atty must be effective.

2. Strickland v. WA (1984): Strickland convicted of murder. Defense atty was “despondent and hopeless”. Atty fails to investigate mitigating circumstances and witnesses during the penalty phase at trial. @ time, no uniform std for what constitutes “xnally effective counsel.”

a. USSC adopts 2 factor test in assessing ineffective assistance of counsel—NEED BOTH--

(1) Ineffective—“cause”. Δ must show that counsel’s performance was deficient.

(a) Objective std of rsblness—(“Simply rsblness under prevailing professional norms”)

(b) No checklist—“lawyering as an art”

(d) This is measured @ time of the atty’s decision or performance—not in hindsight.

(2) Harmful to Δ—“prejudice”. Δ must show that counsel’s deficient performance or errors were so serious as to deprive Δ of a fair trial, i.e. one whose result is reliable.

(a) Must show reasonable probability that the outcome would be different.

i) “Probability sufficient to undermine confidence in the outcome.”

ii) Not more likely than not, but also not any possible outcome. Thus, somewhere b/t those two stds.

(b) This is measured in hindsight

b. Justice Marshall dissent—

(1) re: rsblenss—Not enough guidelines. Telling attys to act “rsbly” is to tell them almost nothing.

(2) re: prejudice—Tough to tell the effects of bad lawyering.

c. Difference b/t majority and Marshall—Purpose of having an atty guaranteed by the 6A?

(1) Majority: To prevent convicting innocent Δs

(2) Marshall: End in itself. Ensuring a fundamentally fair procedure—whether Δ is guilty or innocent.

d. Ct is also concerned with finality—at what point Δ cannot complain about their case?

3. Guilty Pleas

a. Hill v. Lockhart: Δ alleged atty misinformed him re: how much time he would have to serve before parole, which lead him to plea bargain.

(1) Performance test: Same as Strickland

(2) Prejudice: Whether Δ would’ve entered the plea at all—i.e. if atty hadn’t unrsbly performed, Δ would’ve have plead guilty.

D. Self Representation

1. Faretta v. CA: Δ charged w/ grand theft. Δ wants to represent self. Judge tells him he thinks it’s a mistake, later determining that Δ has no Xnal rt to self-representation, and that Δ has no knowledge of ct rules, so appoints counsel.

a. USSC: Effective waiver of counsel is Xnal in state cts. Rationale:

(1) Historical evid: Δ could represent self @ trial in colonial era

(2) Text of 6A: Refers to Δ himself, not to Δ’s counsel

(3) 6A rt is personal: Δ makes choices and bears responsibility for choices.

b. Trial ct must:

(1) Give warning of consequences, and

(2) Ensure Δ is knowingly and intelligently waiving rt to counsel.

c. Trial ct can deny waiver IF:

(1) Δ is not knowingly and intelligently waiving rt

(2) Self-representation is to engage in “obstructionist conduct”—i.e. delaying tactics

(3) Request is too late (i.e. right before trial, in the middle of trial)

d. FN 46: Not a violation of Δ’s rt if the trial ct appoints a standby counsel to help out if Δ has a question.

(1) Rationale: Keeps judge as the neutral arbitrator, so he won’t have to help Δ too much. Thus, standby atty helps Δ w/ procedure. Does not interrupt the adversarial procedure.

(2) Also, Δ may not raise a Strickland claim against self if Δ is convicted once the rt to self-representation is invoked.

2. Standby counsel @ trial

a. McKaskle v. Wiggins (1984): Trial ct appoints a standby counsel over Δ’s objections. Δ oscillates re: how much he wants counsel to participate. Consults atty often. Confusion over who is in charge? Did standby atty interfere w/ Faretta rt? Held: No violation of Δ’s rt.

(1) TEST:

(a) CONTROL: Actual control by Δ over his hearing

i) Standby counsel cannot make of substantially interfere w/ tactical decisions, control questioning of witnesses, or speak instead of Δ on matters of importance.

(b) PERCEPTION: Jury’s perception that Δ is representing himself. (If jury is not present, then only concerned w/ control).

(2) Rationale: Want to promote the dignity and autonomy of the Δ.

3. Self-Representation on appeal

a. Δ may not waive right to counsel on appeal. Martinez v. CA Ct. App.

(1) Rationale: Appeals are statutory, and not grounded in 6A or C/L. Thus, not denying DP when denying self-rep on appeal. Δ is convicted—he is no longer presumed innocent.

(2) Denying self-rep on appeal does not fundamentally interfere w/ the rt at trial, and concern for fair procedures.

E. Identification and Critical Stages of Proceedings

1. Critical Stage is a formal interaction b/t Δ and the state

a. Examples

(1) Preliminary hearings

(2) Arraignments

(3) Indictment

(4) Corporeal line-ups

(5) NOT warrant procedures

(6) NOT beyond sentencing

b. Δ gets an attorney at “critical stages”

2. Line-up cases

a. Dangers of identifications:

(1) Victim under stress

(2) Police suggestiveness

(3) Mistaken perception and memory

(4) Race—tough for ppl to id ppl in another race

b. US v. Wade: Witness makes an in-court identification based on prior identification in a line-up. No counsel was present at the line-up.

(1) USSC: No per se exclusionary rule

(a) Govt must show that the in-court identification is based on something other than the line-up OR must show that there was harmless error in introducing the evidence.

c. If a line-up w/o counsel and no in-court identification→ per se exclusionary rule. The line-up w/o counsel IS the error. Gilbert v. CA

d. Kirby v. Illinois: Police station id of Kirby after his warrantless arrest and before any adversarial proceedings have begun.

(1) 6A does not apply b/c no formal adversarial proceedings when Δ was put in the line-up.

(2) DPC applies. May be able to attack id at line-up if it was unnecessarily suggestive on DP grounds.

e. Reconciling Wade/Gilbert/Kirby

(1) If a 6A violation @ lineup (i.e. after formal proceedings begin) = evid of id procedure (i.e. fact that witness id’d Δ at a line-up) = INADMISSIBLE

(2) Eyewitness cannot id Δ at trial/in-court unless the govt can show the id is not tainted by pre-trial, counsel-less id @ lineup (i.e. that eyewitness id’d Δ apart from the line-up)

(3) 6A implicated: Corporeal lineup = critical stage ONLY AFTER the start of formal adversarial proceedings

3. US v. Ash: Δ id’d at photographic array w/o counsel present. USSC: No 6A violation. Δ is not present, so this is not an adversarial procedure. Also, Δ’s atty can do their own photo id—or can be redone at trial.

a. Photo array ≠ critical stage. Thus, no rt to counsel here.

b. Dissent: Greater dangers of mistaken id. Likelihood of unconscious suggestions.

4. Using DUE PROCESS as a means of challenging ids

a. Stovall v. Denno (1967): Δ arrested for murder. Victim’s wife is in the hospital. Δ brought into hospital and wife id’s Δ w/o atty.

(1) TEST: Was id procedure ⁽¹⁾ unnecessarily ⁽²⁾ suggestive?

(2) Held: Suggestive, but not unnecessarily so. Not sure if victim was going to live.

b. Key to challenging id on DP grounds: RELIABILITY. Manson v. Braitwaite (1977)

(1) No need for per se exclusionary rule if utilize a totality of the circumstances test.

(a) Per se rule is too harsh—creates a risk where guilty ppl will go free, and goes too far in excluding relevant evidence.

c. Summary of DP test. Δ must show:

a. Procedure was suggestive

b. It was unnecessarily so.

c. ID was found to be unreliable

d. Based upon the totality of the circumstances

(1) Relevant factors:

(a) Opportunity of the witness to view the criminal @ time of the crime

(b) W’s degree of attention

(d) W’s level of certainty.

5. Summary: Right to counsel @ id procedures:

a. 6A

(1) After formal proceedings

(2) Corporeal lineup

(a) To admit the in-court id, govt must show that id was gotten from another source than the no-atty lineup

(b) Per se exclusionary rule against the 1st id if no atty present

b. Alternatively, (and independently), DPC

(1) Challenge can be to a line-up or a photo

(2) DPC does not care whether the id was before or after formal proceedings.

III. Rise and Fall of Boyd

A. Boyd v. US (1886): Boyd importing glass. Govt claims Boyd lied about the content of the shipment and is requiring Boyd to produce invoices for shipment of glass. This is a tax dispute and a civil proceeding. Boyd hands over papers, but over objections that it is violating his 4/5th A rts.

1. Govt relies on 1875 statute: If Δ fails to produce papers, allegations are taken as confessions.

2. Majority: Unreasonable search and seizure.

a. Statute is w/in the “spirit” of the 4A—even though no literal search and seizure. Functional equivalent to search and seizure.

(1) 4A is to protect against “general warrants”—open ended warrants

(a) Entick v. Kerrington: Govt enters π’s home, and search his papers pursuant to a general warrant. Lord Camden: Condemns the search.

i) Private ppty is sacred as “papers are the owner’s goods and chattels; they are his dearest ppty…”

ii) This case called the “bastion of civil liberties”

b. 4-5 A protect private ppty (not so much the language of privacy).

c. Suggests absolute right of privacy w/ private ppty

3. This proceeding is quasi-criminal, so 5A applies.

4. Relationship b/t 4 and 5A…

a. Majority: Closely related as an intimate relation b/t the two…

B. Gouled v. US (1921): Govt barred from searches or seizures where the claimant has a legitimate interest in ppty. MERE EVIDENCE RULE—Govt can only take ppty you don’t have a legitimate interest (e.g. contraband, stolen goods). Govt must have superior interest in the evidence.

1. After Gouled and Boyd, USSC is creating an absolute zone of privacy for private ppty. Thus, govt can only really look for contraband

2. As a practical matter, effective law enforcement becomes more important. Need to allow law enforcement to touch private ppty. (beginning of 20C…allow law enforcement to touch private ppty)

C. Fall of Boyd

1. 5A privilege against self-incrimination is NOT available for corporations. Hall v. Hinkle

2. Required Records Doctrine: Can’t invoke 4/5 A to refuse compliance w/ records you are required to keep.

3. Govt can search and seize ppty used in commission of a crime. Marron v. US (1927)

a. Narrows mere evidence rule: Distinguishes b/t ppty that is mere evidence of a crime and ppty used in the commission of a crime.

4. Ppty or privacy?

a. Traditional view: Look @ whether evid belonged to Δ

b. Revisionist view of 4/5 A: Rts protect the right to be left alone. View advanced by Justice Brandeis’ dissent in Olmstead v. US, which eventually came to the core of modern jurisprudence.

D. Schmerber v. CA: Δ arrested while driving drunk. Blood drawn against Δ’s consent. Raises 4/5/6 A claims.

1. re: Blood compelled--implicates 5A claim against self-incrimination

a. USSC: Blood ≠ testimony or communicative evid.

(1) Can use the body as evidence

(2) Xnal difference b/t forcing someone to say something and physical evid alone

(3) versus lie detectors—where this measures both physical evidence and is testimonial in nature.

2. re: Blood test—implicates 5A

a. Blood itself is a non-communicative act.

b. → Testimony comes from the doctor or lab analyst—not from Δ himself.

c. Even though Δ is the blood donor, his participation is irrelevant for 5A purposes

(1) Departure from Boyd—Even though physical evidence is incriminating and/or private, it is not testimony, and is not covered by the 5A

3. re: Rt to counsel claim

a. USSC: No rt to counsel b/c is not a critical stage. Counsel couldn’t help Δ protect his rts

4. 4A claim against unrsbl searches and seizures

a. USSC: Search and seizure here.

b. Then, is it rsbl for Xnal purposes? Yes

(1) Here, no warrant

(2) BUT…rsbl b/c timing issue (i.e. alcohol dissipating in body) + rsbl procedures used + rsbl method to ascertain whether Δ is drunk

(3) Thus, no 4A violation

5. Brennan’s decision:

a. “Overriding function of 4A is to protect personal privacy and dignity against unwarranted intrusion by the state”

(1) Privacy and dignity added to 4A analysis.

b. Suggests certain circumstances where it is ok for govt to search

(1) Qualifies the absolute bar on personal ppty

c. Differs from Boyd:

(1) Getting away from thinking of 4/5 A as giving substantive rights.

(2) Shifting idea to what 4/5 A is about—application where the procedure is analyzed.

(3) Growing concern about effective law enforcement

(a) Increase in the idea that the govt’s needs should be balanced against privacy

6. Douglas’ dissent: Absolute zone of privacy which govt can never intrude.

7. Now: Under Schmerber, Δ cannot raise 5A claim w/ forcible DNA extractions; can only raise unrsbl 4A claim

E. Warden v. Hayden: Δ accused of armed robbery. Δ objects to govt taking his clothes as evid. This is during the “mere evid” rule (i.e. govt can’t search and seize mere evid; need a superior ppty interest to Δ; thus, must be a fruit/instrumentality of the crime or contraband)

1. USSC: Rejects mere evid rule. Distinction is a fiction.

2. Ct is moving away from exclusive view of the 4A as protecting personal ppty. More about putting limitations on the govt, and protecting privacy.

F. Berger v. NY: NY wiretapping statute struck down. USSC: No longer a substantive interest in talking about 4/5 A. Ct concentrates on procedural protections

1. Total separation of analysis b/t 4-5 A. No longer an intimate relationship.

IV. The Fourth Amendment

A. General principles

1. Text: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures [reasonableness clause] shall not be violated, and no warrants shall issues, but upon probable cause, [warrant clause] supported by oath and affirmation, and particularly describing the place to be searched, and the persons or things to be seized [particularity clause].

2. Xnal doctrines implicated:

a. Incorporation: B of Rts doesn’t necessarily apply to states automatically. Must be incorporated by the DPC

b. State action: Must be govt action involved (i.e. state actors)

B. Exclusionary Rule—Primary remedy for violating 4A

1. Mapp v. Ohio (1961): Police looking for Virgil Ogiltree to question about a bombing. Go to Mapp’s house. She refused entry and called her atty. Atty was kept from entering the house. 3 hours later, door forced open. “Warrant” held up, and fight ensues to get hold of the paper. Police search the house, and find obscene materials.

a. USSC: Illegal police action. Evid should’ve been excluded at trial. Conviction reversed.

b. State of the law @ time of Mapp:

(1) Weeks v. US (1914): Fed officials illegally obtain evidence. Exclusionary rule formed as a remedy for the violation of a 4A rt.

(a) Rationale: If no remedy, then do you really have a rt?

(2) Wolff v. Colorado (1949): Would not extend exclusionary rule to the states as the remedy for 4A violations by state officials.

(a) Lead to the silver platter doctrine: Fed agents could get state police to seize evid unconstitutionally, but evid would be let in b/c was not obtained by federal agents

(b) Reverse silver platter doctrine: Feds getting evid unconstitutionally, and giving it to state officials.

c. Exclusionary rule applies to the states

(1) Rationale:

(a) Deterrence to the police

(b) Procedural uniformity—prevent evid in that was unconstituionally obtained

(d) Healthy federalism—avoiding conflicts b/t state and fed cts

2. Exclusionary rule does not benefit those who are searched illegally, but no evid is found in the illegal search (e.g. Police want to harass someone, but are not looking for evid to assist in their prosecution).

3. Cost of the exclusionary rule

(1) Some guilty Δs go free

(2) DA may refuse to bring case fwd—i.e. impacts charging decisions

4. Exclusionary rule is NOT Xnally mandated, but is judicially mandated. Thus, may change the remedy in the future if a better one can be thought up.

C. Searches and Seizures—When the 4A is implicated

1. “Searches”

a. State of the law @ time of Katz

(1) Olmstead v. US: Police surveillance b/t Olmstead and another individual around Olmstead’s home via wires outside home. USSC: No physical trespass, so no 4A event/violation.

b. US v. Katz: Δ in glass phone booth. Conversation recorded.

(1) USSC: 4A protects privacy in limited sense. 4A protects people, not places—Thus, even if Δ is in a public place, it may be private

(a) Even though no physical trespass, Δ has 4A claim here.

i) Even though Katz knowingly exposed himself visually, he did expect conversational privacy.

(b) Then, is search rsbl?

i) Ct: No. Govt could’ve obtained a warrant. Not for the govt to determine whether they are acting rsbly or unrsbly

(2) Justice Harlan’s concurrence—becomes the dominant way to look @ rsblness of searches and seizures

(a) Does Δ have rsbl expectation of privacy? (subjective)

(b) Is the expectation rsbl from society’s point of view, and is society prepared to recognize it as rsbl? (objective)

(3) Problems w/ Harlan’s test:

(a) Room for variation

(b) Circular: Std will evolve w/ society’s changing social circumstances—e.g. post 9/11: society may demand greater intrusions for law enforcement, while others would oppose this, so who is “society”?

c. Knowingly exposure—Impact on reasonably expectation of privacy

(1) Justice Stewart: “What a person knowingly exposes to the public, even in his home/office, is not a subject of 4A protection”

(a) CA v. Greenwood: Δ put opaque trash bags on street and police search them. USSC: Δ knowingly exposed items, so loses 4A protection

(b) BUT…problematic b/c ppl leaving DNA all over the place. Will cts look @ whether Δ has knowingly exposed DNA? (e.g. guy who licks a stamp in NJ)

(2) Open fields doctrine:

(a) Oliver v. US (1984): Police search Oliver’s farm where Δ is growing pot.

i) Held: No search. 2 justifications:

a) No rsbl expectation of privacy in an open field

b) Not a “person, paper, house, effect”

ii) Dissent: a conversation is also not a person, paper, house, effect

iii) BLR: Open fields are NOT protected by 4A

(b) US v. Dunn (1987): Police pass through a fence to reach Δ’s barn and enter ranch w/o warrant. Eventually got a warrant.

i) Held: Not protected by 4A b/c this is not curtilage (i.e. area around the home)

ii) Factors to determining whether the ppty is an open field or curtilage:

a) Proximity of the area to the home

b) Whether the area is included in an enclosure surrounding the home

c) How the area is used

d) Steps taken to protect the area from observation of passerbys.

(c) e.g. Installing 5000 security cameras in Manhattan. No subjective expectation of privacy b/c you can see the cameras.

(d) Is the 4A suggesting that anytime you are outside your curtilage, you no longer have an expectation of privacy?

d. US v. White (1971): Δ having a conversation w/ Harvey Jackson, an informant. Jackson has a transmitter. Δ objects to recording of the conversation as a ‘search.’ [Jackson is acting as a state actor]

(a)