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Law Outlines Criminal Justice Outlines

Criminal Justice Outline

Updated Criminal Justice Outline Notes

Criminal Justice Outlines

Criminal Justice

Approximately 56 pages

1L Criminal Justice with Professor Gottesman....

The following is a more accessible plain text extract of the PDF sample above, taken from our Criminal Justice Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

I. FOURTH AMENDMENT ............................................ 3 a. Searches ......................................................................................3 i. Background/Policy .............................................................................3 ii. Foundation for Privacy Expectations (Katz) ...................................3 iii. Disclosure to Third-Persons..............................................................3 iv. Drug Dog Sniffs ..................................................................................4 v. Property: Knowing Exposure to the Public (Home) ......................5 vi. Property: Knowing Exposure to the Public (Car) ..........................7 vii. Property: Knowing Exposure to the Public (Other) ......................7 b. Seizures of Property ..................................................................8 c. Warrants ....................................................................................9 i. Probable Cause ..................................................................................9 ii. Warrantless Arrests.........................................................................11 iii. Arrest Warrants...............................................................................11 iv. Search Warrants ..............................................................................12 v. Execution of a Search Warrant ......................................................13 d. Exceptions to the Warrant Requirement ..............................15 i. Exigent Circumstances ....................................................................15 ii. Search Incident to Arrest ................................................................16 iii. Search Incident to Arrest (Automobiles) .......................................18 iv. Pretextual Stops and Arrests ..........................................................19 v. Searches of Automobiles .................................................................20 vi. Plain View and Touch .....................................................................22 vii. Consent .............................................................................................22 viii. Other Exceptions to Probable Cause .............................................23 1 e. Exceptions to Both the Warrant and Probable Cause Requirements ...........................................................................24 i. Stop and Frisk (Terry) .....................................................................24 ii. Seizure of Persons ............................................................................27 iii. Reasonable Suspicion ......................................................................29 f. Remedies for Fourth Amendment Violations .......................31 i. Standing ............................................................................................31 ii. The Exclusionary Rule; Fruit of the Poisonous Tree ...................33 iii. Exceptions to the Exclusionary Rule..............................................36 II. FIFTH AMENDMENT ............................................... 39 a. Voluntary Confessions and the Due Process Clause ...........................39 b. The Privilege Against Self-Incrimination; Miranda + its Progeny ....41 III. SIXTH AMENDMENT + POLICE INTERROGATION ...50 IV. EYEWITNESS IDENTIFICATION (FIFTH AND SIXTH AMENDMENTS) ....................................................................53 2 I. FOURTH AMENDMENT a. Searches i. Background/Policy 1. Policy: 2 competing interests a. Want to catch/punish/rehabilitate criminals b. Want to protect individual liberty 2. "Fruit of poisonous tree": products of illegal searches are protected as well a. Proximate cause is the standard for determining if it's the "product" of the illegal search 3. No Supreme Court case regarding Fourth Amendment protection for undocumented aliens (but the answer is likely yes, and lower courts have ruled accordingly) 4. If you abandon something in public, the government can take it, search it, etc. 5. Warrantless searches are per se unreasonable 6. Huge ongoing debate about whether journalists can be compelled to disclose sources to help with an investigation (many states have laws that protect these sources) 7. Policy: A consequence of the Fourth Amendment is that a few criminals will get off in order to ensure the privacy of the masses (Scalia in Holmes majority) ii. Foundation for Privacy Expectations (Katz) 1. Katz (1967) a. Facts: FBI agents suspected defendant was involved in illegal gambling. Agents attached a recording device to the outside of a public telephone booth in which defendant made calls. b. Rule: The Fourth Amendment extends to oral conversations which the person subjectively and reasonably expected to be private. i. Two-part Katz test (Harlan concurrence): (1) subjective expectation of privacy; and (2) that the expectation be one that society recognizes as "reasonable" ii. The Fourth Amendment protects people, not places 1. Still consider places though iii. [Illegal activity tends not to be "reasonably expected" even if people know it can occur] iii. Disclosure to Third-Persons 1. United States v. White (1971) a. Facts: White spoke with a government informant (he was unaware he was an informant) in the informant's home, while one government agent hid in the closet and another was outside the house using a radio receiver listening device. b. Plurality: Disclosure to a third person is not protected by the Fourth Amendment. 3 i. Important that one of the parties had consented to the recording of the conversation, which distinguishes this case from Katz ii. Expectations that a third person (and party to the conversation) will not reveal the information to the authorities is not protected by the Fourth Amendment (Hoffa), even if that person is carrying a recording device (Lopez) or radio equipment that simultaneously transmits the conversation elsewhere (On Lee) 1. Policy: we want a more reliable account of the conversation a. Counter: may stifle societal conversations as people will be afraid that their conversations may be recorded, even if not involved in criminal activity (e.g. journalist wanting anonymity) 2. Still doesn't apply if the third person conceals his identity to the subject (Lewis) 2. Miller (1976) a. Facts: Agents were investigating defendant for his involvement in a bootlegging conspiracy. Agents subpoenaed two banks and received all of his bank records. b. Rule: Bank customers have no reasonable expectation of privacy in their bank records. i. Unreasonable for his bank records to remain private after exposing them to a third party (i.e. the bank) [similar to White in this sense] 3. Smith (1979) a. Facts: Police, without a warrant but with reason to believe that Smith was involved with a robbery, installed a "pen register" at telephone company to record calls from the suspect's/Smith's home (not the content of the calls themselves, just the numbers that he was calling). b. Rule: A caller cannot reasonably expect the numbers he calls to be private (considering everyone know phone companies keep records of these), so installation of a pen register is not a search. c. People could potentially be conditioned to assume lack of Fourth Amendment protection (e.g. government could just broadcast that all phone conversations may be monitored so that it's technically "reasonable" for them to expect to be monitored) (footnote 5) d. Dicta: can't obtain content in a warrantless search 4. Stored Communications Act: when government wants certain info (phone numbers, etc.) from the company, they can get a subpoena as long as it "may be relevant to a case" iv. Drug Dog Sniffs 1. Place (1983) a. Sniff test by drug dog at airport is not a Fourth Amendment violation because it is hardly invasive in that there's no actual search, but rather it simply confirms the presence of some narcotic. 4 i. Important that dog cannot detect anything other than illegal narcotics 2. Caballes (2005) a. Car stopped for traffic violation and police let drug sniffing dog sniff the car (standard practice, no probable cause) b. No reasonable expectation of privacy because the only thing the dog could detect is illegal narcotics i. [Note: police couldn't have detained him and waited for another car with a drug sniffing dog if they didn't already have one at the scene (see Rodriguez v. United States)] 3. Jardines (2013) a. Using a drug-sniffing dog on a homeowner's porch to investigate the contents of the home is a search within the meaning of the Fourth Amendment. 4. Whether a positive drug dog sniff in itself is probable cause: a. Evidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient support for probable cause (Florida v. Harris) i. A dog's field record is a poor indicator because it does not include false negatives and any false positives listed may have been situations where the drugs were too well-hidden for the officer to find or the dog was sniffing residue that was previously in the person's possession (Kagan in Florida v. Harris majority) v. Property: Knowing Exposure to the Public (Home) 1. Curtilage is protected as much as the home (but not the area outside one's curtilage) a. Factors to consider in determining whether something is curtilage: (1) proximity to home, (2) whether the area is included within an enclosure surrounding the home, (3) nature of uses of the area, and (4) steps taken by resident to protect the area from observation (Dunn) b. Open fields doctrine: police entry of an open field does not implicate the Fourth Amendment, nor constitute a "search" (Hester) i. This can be "any unoccupied or undeveloped area" outside a home (Oliver) 1. Usually accessible and visible to the public, so there's no expectation of privacy that "society recognizes as reasonable" ii. Textual argument: it's not a "home, papers, [or] effects" c. Dunn (1987): not illegal for police to climb over multiple fences and look into barn without warrant because the barn was outside the fence that fenced in the house, and therefore outside the curtilage 2. Ciraolo (1986): using a helicopter to fly at 1000 feet over the house of defendant, who was suspected to be growing marijuana in his fenced in yard (not visible from street), did not intrude on his reasonable expectation of privacy 3. Florida v. Riley (1989) 5 a. Facts: Agents used a helicopter, flying at 400 feet, to observe defendant's greenhouse in which he was growing marijuana. The inside of the greenhouse was not visible from the road. b. Concurrence (O'Connor) (CONTROLLING): Fact that 400 feet is a legal flying height is not dispositive, and the court must still consider whether there's a reasonable expectation of privacy under Katz, such as whether people actually will fly here c. Plurality (White): Not a search because 400 feet is a legal height for a helicopter to fly at, so Riley should've expected people to see his marijuana if they flew over (no objective expectation of privacy under Katz) d. Dicta (5 votes): aerial observation will not always pass muster under the Fourth Amendment e. Dicta (at least 7 votes): burden of proof on prosecution i. [With Kennedy being the only Justice from Florida v. Riley still on the court, it's unclear how this case would come out today] f. Must consider whether the aircraft was flying at a reasonable height and whether it interfered with the person's normal use of the land being observed (because if so, then it's trespass) i. In this case, it did not interfere 4. Kyllo (2001) a. Facts: Plaintiff was growing marijuana in his garage with heat lamps. The police received a tip that this was occurring so they used a thermal scanner to show that his garage was significantly hotter than the rest of his house, which the officers used to obtain a search warrant and subsequently arrest plaintiff. b. Rule: Any information regarding the interior of a home obtained by sense-enhancing technology (using technology not in public use) is considered a search. i. Left open the question of whether this would've been a violation if the technology was in public use, but suggested it would not ii. The home is sacred - in the home, all details are intimate details 5. Jardines (2013) a. Facts: Police received a tip that defendant was growing marijuana in his house. The police brought a drug sniffing dog up to the door of his house and the dog detected the scent of illicit drugs. b. Rule: Using a drug-sniffing dog on a homeowner's porch to investigate the contents of the home is a search. i. Front porch is curtilage, so this was a search ii. Implied license: homeowners can reasonably expect certain things to occur, such as someone coming to knock on their door, mailman dropping off mail, etc. (objective purpose controls) iii. This was physical intrusion under the Jones test 6. A person does not have a reasonable expectation of privacy in garbage left outside a home for trash removal (Greenwood) a. [Unclear how this would come out if it was on the curtilage] 6 vi. Property: Knowing Exposure to the Public (Car) 1. Knotts (1983) a. Facts: Police (with consent) put a tracking device in a container of chloroform that Knotts later purchased, which they used to track Knotts despite losing track of his car. Police waited for the tracking device to stop moving (Knotts arrived home and left the container outside) and used it to track Knotts back to his cabin, information that the police used to search his cabin. b. Rule: There's no reasonable expectation of privacy with regards to one's movements when driving on public roads i. [Officers had consent of original owner to place tracker (unlike in Jones)] 2. Karo (1984) a. Facts: The police (with consent) put a tracking device in a container of ether sold to Karo by an informant, and not only tracked his car movements, but also used it to track his movements within his house. b. Rule: Electronic tracking constitutes a search if the information revealed could not have been obtained through visual surveillance. i. Karo had a reasonable expectation of privacy within his home ii. [Officers had consent of original owner to place tracker (unlike in Jones)] 3. United States v. Jones (2012) a. Facts: Jones was suspected of being involved in a large-scale drug trafficking operation. The FBI placed a GPS tracking device on Jones' car without a warrant and monitored his movements for 28 days. b. Rule: The warrantless placement of a GPS tracking device on the undercarriage of an individual's vehicle is both trespass and a search. i. [Changing technology is apt to reduce the expectations of privacy of the public in the Katz test, so we may have to reconsider the Katz test because modern technology is so amenable to misuse (this likely has 5 votes)] ii. Alito and Sotomayor (concurrences) both believe that long-term GPS monitoring fails the reasonable expectation test under Katz 1. GPS is cheap and can paint a picture of someone's entire life 2. Sotomayor wants to re-think the third-party doctrine (Smith and Miller) in light of digital age because people no longer have a reasonable expectation of privacy in information voluntarily disclosed to third parties iii. [Trespass extends to subsequent owner (still has a reasonable expectation of privacy)] vii. Property: Knowing Exposure to the Public (Other) 1. Bond (2000) a. Facts: Agents were inspecting a Greyhound bus at a checkpoint and were feeling bags in the overhead. They felt something that felt like a brick in one. Man allowed agents to inspect it, at which point drugs were discovered. 7

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