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Criminal Procedure - Outline Part 1

By Collin B. Hardee

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Part 2 >>

Criminal Procedure – Bolitho (Spring 2020)

The 4th Amendment (1791) → “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.”

Steps in Criminal Procedure Process (RED is What Class Focuses on)
  1. Crime
  2. Police Investigation
  3. Arrest/Booking
  4. Filing Complaint
  5. First/Initial Appearance
  6. Preliminary Hearing/Filing of Indictment/Information
  7. Arraignment
  8. Pretrial Motions (Motion to Suppress)
  9. Trial or Guilty Plea
  10. Sentencing (if Guilty)
  11. Appeals
  12. Post-Conviction Remedies (Habeas Corpus Procedures)
Eras of 4th Amendment Supreme Court Jurisprudence
  1. Warren Court (1953-1969) → D wins; Government loses (Privacy > Safety)
  2. Berger Court (1969-86) → D loses; Government wins (Privacy < Safety)
  3. Rehnquist Court (1986-2005) → Wild Card – goes either way
  4. Roberts Court (2005-Present) → When technology is involved, D wins
    1. Phase 1 (2005-2016) → Scalia
    2. Phase 2 (2016-Present) → Death of Scalia + Kavanaugh/Gorsuch
The Birth of the Exclusionary Rule

Overview: nowhere in the text of the 4th Amendment do the Founders prescribe a remedy for violations of the 4th Amendment, i.e., there was a constitutional right against unreasonable search and seizures or S&S without warrants, but no remedy for a violation or incentive to not violate the right

Common Law Remedy (Pre-1904): only remedy was a civil action against the individual agent, i.e., if an agent entered premises without a warrant or permission, they were automatically deemed trespassers and could offer no defense

Adams v. New York (1904) → Governmental misconduct (i.e., unconstitutional S&S) is a collateral matter in a criminal prosecution of one whom has been arrested by illegally obtained evidence – the individual is still guilty of the crime regardless of how the proof/evidence was obtained

  • Court does not stop to inquire HOW the evidence was obtained, so long as the evidence proves guilt
  • Remedy? Replevin action for “criminal” to get the property back AND/OR civil trespass tort

Weeks v. United States (1914) → established the Exclusionary Rule

  • Since a remedy is not explicitly prescribed by the Constitution for a 4th Amendment violation, the Supreme Court MADE UP/IMPLIED the Exclusionary Rule remedy
  • Exclusionary Rule: evidence obtained by the US and federal officials by an unconstitutional S&S is prohibited from being used in trial, i.e., the effect of the 4th Amendment is to put the US and federal officials under limits and restraints to forever secure the people against unreasonable search and seizures.
  • What happens with the evidence? → it is returned back to the individual (like replevin) and cannot be used in court
    • NOTE: at this point the 4th Amendment ONLY applied to FEDERAL government, but did not apply to state and local government
    • Silver Platter Doctrine: b/c Exclusionary Rule ONLY applied to federal officials, local law enforcement could still obtain evidence unconstitutionally and deliver the evidence to federal officials “on a silver platter”

Wolf v. Colorado (1949) → Incorporated the 4th Amendment to the states, BUT did not incorporate the remedy, i.e., the Exclusionary Rule, to the states since it is not found in the Constitution; gave the right but not the remedy

Mapp v. Ohio (1961) → overturns Wolf applying the Exclusionary Rule to the states as well as the federal government, i.e., all evidence obtained by S&S in violation of the Constitution is INADMISSIBLE in a STATE court as well as federal courts

  • Incorporated the remedy for unconstitutional S&S to the states
Possible 4th Amendment Violation Remedies
  1. Civil Liability – e.g., trespass tort for $ damages
  2. Administrative Act – punishment by the police department of the individual agent
  3. Criminal Liability
  4. Exclusionary Rule – exclude the evidence
2 Purposes of Exclusionary Rule
  1. Deterrence – creates punishment for violation and incentive for police to not violate 4th Amendment rights
  2. Judicial Integrity (as stated in Mapp) – “The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence . . . If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
Exclusionary Rule Today
  • ER applies everywhere post-Mapp
  • IF 4th Amendment violation, then file motion to suppress (Rule 12) – Waived if don’t make motion Fed. R. Crim. Pro. 12(3)(C)
    • NOTE: Motion in limine does NOT work
4th Amendment Overview Analysis
  1. State Action Doctrine – the Bill of Rights, i.e., the 4th Amendment guarantees, protect only against governmental, NOT PRIVATE, conduct
    • 4th A NOT violated if private party (e.g., landlord, phone company) searches
      • UNLESS private party searches by request of the Government, then Private Party becomes “deputized” by State and becomes a State Actor
    • 4th A implicated if police officer investigates, participates in, or requests a search
  2. “People”, i.e., WHO? → US v. Verdugo-Urguidez (1990) - “The people” refers to a particular class of persons comprising a national community or else with such significant connections to this country that they are deemed part of that community.
    • Test: (1) Sufficient connection with national community and (2) Individual accepted some societal obligations
    • If US authority is involved in investigation of criminal activity in a foreign nation, then 4th Amendment is loosely triggered and must go through procedures of that foreign nation (not US procedures if not in US)
      • US Government Involved in Foreign Criminal Procedure Against US “Citizen” → 4th Amendment Protection
      • No US Government Involvement in Foreign Criminal Procedure Against US “Citizen” → NO 4th Amendment Protection
      • US Government Involved in Foreign Criminal Procedure of NON-US “Citizen” → NO 4th Amendment Protection
  3. “Search”?
    • What? → “Secure . . . against unreasonable searches and seizures
    • Where? → “Persons, houses, papers, and effects (effects = wallet, phone, things on a person)
Defining “Search”

Question: What governmental conduct constitutes a search or seizure of a person, house, paper, or effect and, therefore, triggers Fourth Amendment protection?

2 Periods of “Search” Analysis
  1. Pre-Katz “Protected Places” Approach (Pre-1967)
    • Property-focused inquiry
    • A search of a defendant will be deemed to occur if the government physically intrudes on the defendant’s property
    • 4th Amendment only protects certain places (usually limited to private property owned by the subject of the search)
  2. Post-Katz “Reasonable Expectation of Privacy” Approach (Post-1967)
    • Rule: “The 4th Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
    • Justice Harlan’s “Reasonable Expectation of Privacy” 2-Prong Test
      1. a person exhibited an actual (subjective) expectation of privacy; and
      2. the person’s expectation is one that society is prepared to recognize as “reasonable” (objective)
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