Crim Pro Full Outline

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    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 penalty1. Remedies

    a. Generally fines AND/OR

    i. If the statute says "fine" it is probably criminalii. 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. Jaili. Jail is automatically criminal UNLESS

    1. Sex offenders are in civil incarceration in order to provide

    treatment2. Contempt

    a. Civil-jail is not mandatory: only persuasive tool toenforce order of the court

    b. Criminal-mandatory payment or jail-timei. COMPARE Clinton Hypo: mandatory

    payment of fine for contempt was deemed

    civilc. 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 states1. Majority view: (J. White)Selective IncorporationThe 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 states2. Concurring: (J. Black)Total IncorporationAll of the rights in the Bill of

    Rights, and no others, are incorporated to apply to the states

    3. Dissent (J. Harlan)Federalism View14th Amendment involves liberty and

    due process, ideas of fundamental fairness. As such, whether a right in the Bill ofRights 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. Ceiling1. 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 AMENDMENTTHE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSON, HOUSES, PAPERS AND

    EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES SHALLNOT BE VIOLATED, ANDNO WARRANTS SHALL

    ISSUE, BUTUPONPROBABLECAUSE, SUPPORTEDBYOATHORAFFIRMATION, ANDPARTICULARLYDESCRIBINGTHEPLACETOBESEARCHED, ANDTHEPERSONSORTHINGSTOBESEIZED.

    a. Introduction

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    i. The government search and seizure of persons, houses, papers, and effects must be

    reasonableii. Warrants shall have probable cause supported by oath/affirmation describing the searches

    and/or seizures.

    iii. The Reasonableness and the Warrant Clause1. 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 USperson

    v. Probable Cause

    1. Minimum showing to support application for a warrantvi. State Action

    1. Only a US government can be bound by the search or seizurethe state must act

    2. Private action does not trigger Fourth Amendmenta. 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 theFourth Amendment under the law of agency

    vii. Remedies1. 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 AND2. That is a reasonable expectation of privacy recognized by society as legitimate

    a. KATZopens up telephone booth, closes door, pays money, and has a

    conversation with another. Police placed listening device on booth. Katzhad 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 closed phone booths as reasonably privatebecause it is not necessarily the public status of the phone booth but theactions and location that serve as the objective privacy expectation.

    i. The Searchesconversation, opened briefcase and looked, wen

    through papersii. The seizuresarrest, took briefcase (see next)

    ii. Seizure occurs where

    1. There is an interference with property rightsa. Seizure of the person (arrest) is an interference with personal freedom

    iii. Open Fields DoctrineFails the objective privacy expectation of Katz

    1. A person does not have a legitimate expectation of privacy in an open field

    a. Society is not prepared to recognize that as legitimatei. If property is open, it is not private

    ii. The text of the Fourth Amendment states houses, papers, and

    effectsb. OLIVERpot in the farm, argued Katz, held that there was no search for the

    reasons stated above

    c. Distinguish searches and seizures heresearch of the open field may beok, but if there it a seizure, then it must be reasonable

    2. Curtilage in the open fieldmay meet the legitimate expectation prong of Katz

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    a. Proximity to the home

    b. Enclosuresc. Use of the area within the curtilage

    d. Steps taken to protect from passers-by

    iv. Consensual Electronic Surveillance (Informant wears a wire)1. Assumption of Risk Test

    a. People have a reasonable expectation of privacy against the police, bu

    there is no reasonable expectation of privacy against non-police whom

    people speak tothus, one "assumes the risk" of having that person relaymessages to the police

    v. Bank Records

    1. Where police request bank records, there is no reasonable expectation of privacy because the records are readily accessible to the bank employees. As such, a

    person assumes the risk that the bank records will be accessed by others

    including the policevi. Pen Registers telephone companies record the number dialed

    1. A person does not have a reasonable expectation of privacy when dialing a

    number because telephone records are voluntarily turned over to everyoneworking for the telephone company

    vii. Pagers1. Where a person calls the pager and leaves a phone number, the person who leaves

    the phone number has no reasonable expectation of privacy because they haveconsented to broadcasting their number on the display of the pageranyone can

    read that number.

    a. Similarity between pager display and caller I.D. BUT2. A person who possesses a pager has a reasonable expectation of privacy in the

    numbers stored inside

    a. Similarity between numbers stored in pager and paper address book orprivate papers

    viii. Trash

    1. A person has no reasonable expectation of privacy in their trash because it isaccessible by the public, trash collectors, and the like.

    a. Once trash is placed on the curb in front of a house, the result is virtua

    consent that someone will take away the trash, even though not consent to

    the police taking the trash away.2. Trash in an open filed

    a. If the open field doctrine applies, there is no search BUT

    b. Seizure must still be reasonablei. There is probably no seizure because a person gives up possession

    of trash BUT

    ii. If trash (e.g., burn barrel) within the curtilage, may be a search

    ix. Public Areas1. Homeless persons

    a. Reasonable expectation of privacy in contents of duffel bag and cardboard

    box kept on public propertyi. Possessory interest in property

    ii. Homeless want to protect their privacy

    1. Distinguish trash cases where no expectation of privacyexists

    b. No reasonable expectation where belongings stored on private property

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    c. No reasonable expectation of privacy in a bathroom stall where anyone

    could observe from outside the stallx. Aerial Surveillance

    1. Where public has access to viewing the area surveilled, there is no reasonable

    expectation of privacy2. Person assumes the risk BUT

    3. If overflight disturbs property, the search is too intrusive

    a. Ciraolo 1000 feet above home in a plane was not a search

    b. Dow Chemical Aerial photographs of industrial plant taken by the EPAwas not a search

    c. Riley 400 feet above home in a helicopter was not a search

    xi. "Plain Feel Searches"1. Manipulation of a bag (touching, feeling) in public bus is a search under Katz

    a. Probing tactile examination of property is more intrusive than plain

    viewingb. May be equally likely or unlikely for members of the public to touch bags

    BUT touching has a different effect than viewing

    i. Bond officer at border patrol felt 's bag then asked him to

    search. gave consent and found drugs. Held: search.

    actually expected privacy because the bag was closed and noeasily found on the top shelf. There is a reasonable expectation ofprivacy because even though others might have touch the bag the

    same way, it was highly unlikely that other passengers would

    manipulate the bag as the agent did.

    2. Because of September 11, the outcome would probably differ.xii. Thermal Detection Devices

    1. Kyllo police use thermo-imaging device to detect heat level from home and

    discover marijuana. Held: search2. A device that detects heat levels from inside the home is a search

    a. Subjective expectation of privacy regarding the home and the hea

    therefromi. Just because technology can identify activit