Introduction to the U.S. criminal procedure

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The aim of this course is to learn the foundations of U.S. criminal investigations arising under the Fourth Amendment. What privacy protections are provided to U.S. citizens, what is law enforcement entitled to do, and how do U.S. protections differ from those in the European Union and in countries in other regions? How does the common law tradition differ from civil (Roman law) countries? Students will analyze federal and state cases, statutes, and competing theories in a problem-oriented format in order to understand U.S. criminal procedure law through active learning. Throughout the course, students will explore specific police investigative methods, what constitutes a “search,” arrests, and seizures, and learn about how evidence is excluded if police abuse their powers.

COURSE INSTRUCTOR: Professor Melanie Reid

• Email: melanie.reid@lmunet.edu

COURSE PLAN

No. Topic Planned amount in hours

1. Introduction to U.S. Criminal Procedure 1 hour

2. What is a U.S. “search”? Open fields and Curtilage 2 hours

3. Aerial surveillance, thermal imaging, and trash searches 2 hours

4. Tracking devices, pen registers and electronic surveillance 2 hours

5. Dog sniffs and criminal informants 2 hours

6. What is “probable cause”? 2 hours

7. The warrant requirement and the knock and announce rule 2 hours

COURSE CONTENT

Monday – May 30th – read pages 22-26, 39-55

• Introduction to U.S. Criminal Procedure.

The development of numerous limitations upon the manner in which a criminal suspect may be arrested, convicted, and punished has rendered most of criminal procedure an inquiry into constitutional law. Brown v. Mississippi, 297 U.S. 278 (1936).

• What is a U.S. “search”?

Students will read about the Fourth Amendment prohibition against unreasonable searches and seizures. A search can be defined as a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy. Katz v. United States, 389 U.S. 347 (1967).

• What constitutes a “search”:

o Tracking devices

Tracking devices that monitor a person’s movement may violate a reasonable expectation of privacy or may be considered a trespass and constitute a search under the Fourth Amendment. United States v. Jones, 132 S.Ct. 945 (2012).

Tuesday – May 31st – read pages 57-69, 82-100

• What constitutes a “search”:

o Trash searches

The Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of the home. California v. Greenwood, 486 U.S. 35 (1988).

o Thermal imaging

Obtaining by sense enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion constitutes a search, at least where the technology in question is not in general public use. Kyllo v. United States, 533 U.S. 27 (2001).

o Open fields and curtilage

Areas outside the curtilage (dwelling house and outbuildings) are subject to police entry and search as these are held out to the public and not protected by the Fourth Amendment. Oliver v. United States, 466 U.S. 170 (1984); United States v. Dunn, 480 U.S. 294 (1987).

o Aerial searches

Aerial surveillance has been deemed to not be a “search” as long as the aircraft remains in FAA airspace and a similar flight could be taken by an ordinary citizen. But will the same be true of drones operated by local police departments? California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989).

Wednesday – June 1st – read pages 74-80, 102-110, 112-118

• What constitutes a “search”:

o Metadata/pen registers – third party doctrine

A pen register records only the numbers dialled from a certain phone, and the Fourth Amendment does not require prior judicial approval for installation and use of pen registers. Smith v. Maryland, 442 U.S. 735 (1979).

o Cell site location information. Carpenter v. United States, 138 S.Ct. 2206 (2018).

o Dog sniffs

As long as the police have lawfully stopped a car and do not extend the stop beyond the time necessary to issue a ticket and conduct ordinary inquiries incident to such a stop, a dog sniff of the car does not implicate the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405 (2005).

o False friends

Criminal informants that record targets do not trigger the Fourth Amendment. Hoffa v. United States, 385 U.S. 293 (1966).

Thursday – June 2nd – read pages 127-147

• What is probable cause?

An arrest must be based on probable cause. Probable cause is present when at the time of arrest, the officer has within his knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime. Illinois v. Gates, 462 U.S. 213 (1983); Whren v. United States, 517 U.S. 806 (1996); District of Columbia v. Wesby, 138 S.Ct. 577 (2018).

Friday – June 3rd – read pages 150-167

• The warrant requirement

To be valid, a warrant must be issued by a neutral and detached magistrate, be based on probable cause, and particularly describe the place to be searched and the items to be seized. Andresen v. Maryland, 427 U.S. 463 (1976); Groh v. Ramirez, 540 U.S. 551 (2004); Wilson v. Arkansas, 514 U.S. 927 (1995); Maryland v. Garrison, 480 U.S. 79 (1987).

Wednesday – June 8th at noon – email your response/court order to melanie.reid@lmunet.edu

Criminal Procedure: A Free Law School Casebook

Ben Trachtenberg and Anne Alexander

CALI eLangdell Press 2020

No ISBN # - download it for free here: https://www.cali.org/the-elangdell-bookstore or order a print copy

This course will acquaint students with the United States approach to privacy and civil liberties while attempting to maintain law and order. This will help them navigate the interconnected world of criminal procedure and help them formulate their own ideas for the best policies for criminal laws and regulation in Poland and beyond.

Upon successful completion of this course, students should:

• Understand the jurisdictional reach of the federal criminal justice system and the U.S. Constitution and Bill of Rights

• Appreciate the public policy considerations underlying U.S.criminal law and the Bill of Rights

• Understand the implications of the Fourth Amendment’s right against unreasonable searches and seizures and the warrant requirement and how it relates to a citizen’s right to privacy

• Understand the requirements underlying arrests and searches of homes in the U.S.

• Evaluate the policy of stop and frisk and the potential need for police reform

• Understand the way in which arrests and investigative decisions are made in the federal system.

• Identify when a person may file a motion to suppress in the U.S. and when evidence is excluded in a criminal trial

• Learn how a criminal case is initiated from the perspective of a prosecutor and how U.S. criminal defense attorneys appropriately defend their clients in the face of criminal charges

• Identify how the initial stages of a criminal investigation and charges begin so that students can develop their own ideas for the best policies on how to protect citizens’ right against unreasonable searches and the right to privacy in the face of the police’s need to investigate crimes in Poland and beyond.

Your grade in this class will be determined as follows:

• 30% of your grade will be based upon in-class participation, and

• 70% of your grade will be based upon your court order ruling upon a motion to suppress that you will turn in at the end of the course. You will be asked to fully evaluate a search warrant and the subsequent search and determine whether in fact the search is unconstitutional and whether the evidence obtained during the search should be inadmissible. Your conclusion is NOT as important as your explanation of the rules and analysis of all the issues. Assume the jurisdiction follows the U.S. Constitution and the federal case law you have examined and discussed in class.

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