Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
INTRODUCTION
a. A Criminal Case
i. U.S. v. L.O. Ward 1980: Civil penalty, no Fifth Amendment
problem. Hazardous dumping
ii. Allen v. Illinois 1986: Sexual offender commitment proceedings
designated civil by statute. Designation matters.
iii. Kansas v. Hendricks 1997: Even if permanent commitment after
jailing, can still be civil if measure isnt punitive, and is
designated by statute
iv. Smith v. Doe 2003: Sex offender registration is civil.
b. Incorporation
i. Barron v. Baltimore 1833: BoR applies only to Federal
ii. Hurtado v. California 1884: Right to be indicted by grand jury
does not apply to the states.
iii. Twining v. New Jersey 1908: Privilege against self-incrimination
not binding on states
iv. Palko v. Connecticut 1937: Implicit in the concept of ordered
liberty. Is it absolutely impossible to have a fair trial without
this right?
v. Duncan v. Louisiana 1968: Selective Incorporation: 14th
amendment protects rights fundamental in the context of
criminal processes maintained by the American States.
vi. McDonald v. City of Chicago 2010: Right to bear arms fully
applicable to the States. Fundamental to our scheme of
ordered liberty and system of justice?
vii. Three Options
1. Total (Whole BoR applies to States)
2. Selective (Prevailing test): Fundamental to AngloAmerican scheme of justice
3. None (Barron)
c. Retroactivity
i. Griffith v. Kentucky 1987 (Harlan): Retroactivity for cases on
direct review.
ii. Teague v. Lane 1989: Dont apply retroactively to cases on
collateral review (habeas) unless new rule makes crime no
longer a crime or the new rule is fundamental to a system of
ordered liberty.
1. Note: Griffith and Teague decisions were the Harlan
dissent in Desist.
iii. Collins v. Youngblood 1990: Teague not applied sua sponte
iv. Yates v. Aiken 1988: Applying settled precedent not a new
rule, and thus is completely retroactive
v. Butler v. McKellar 1990: If all reasonable minds would have
viewed the new rule as following precedent, not actually new
vi. Johnson v. Texas 1993: Rejecting habeas reasoning can later
help reject on merits
vii. Williams v. Taylor 2000: Habeas review only if State violated
clearly established law. AEDPA codifies Teague. State
application examined as law was when applied.
II.
viii. Davis v. U.S. 2011: Good faith application of old rule before new
rule can bar remedy, because no deterrence.
ix. Danforth v. Minnesota 2008: States can allow more retroactivity
x. Lockhart v. Fretwell 1993: Detrimental changes in law apply
retroactively to habeas petitioners. Essentially states benefit but
defendants dont.
xi. Policy Problems
1. Reliance: LEO need to be able to reasonably rely
2. Overburden: Trial courts would be slammed if every
decision was retroactive
SEARCH AND SEIZURE/ FOURTH AMENDMENT
a. Fourth Amendment: People have right from unreasonable search and
seizure. Warrants must be based on probable cause and be specific to
place to be searched and persons or things to be seized. Warrant
clause predominates (Presumed unreasonable if no warrant).
b. U.S. v. Verdugo-Urquidez 1990: 4th Amendment protects people in the
U.S. from the tyranny of the U.S. govt. Need to be connected enough
(Mexican citizen in Mexico not enough).
c. Katz v. U.S. 1967: FBI bugged phone booth, strong probability of illicit
activities, surveyed only Katz conversations. Government violated his
expectation of privacy
i. 4th Amendment protects people and not places
ii. Two-Pronged Test (Harlan Concurrence)
1. Subjective manifestation of privacy expectation
2. Societally reasonable expectation
iii. Trespass Analysis
d. U.S. v. Jones 2012: Expired warrant, tracking device on car.
Occupation of private property for purpose of obtaining information.
i. Physical Intrusion was a search. (Trespass analysis still valid).
ii. Sotomayor: Wants 3rd Party Disclosure doctrine, because of vast
relinquishing of private information daily during mundane tasks
e. Florida v. Jardines 2013: Narcotics dog on porch sniffed around
indicating narcotics in house
i. Open fields not protected. But curtilage (immediately
surrounding/adjacent area to house) protected by 4 th
Amendment.
ii. Physical intrusion onto curtilage.
f. Kentucky v. King: Knock and talks allowed, as anyone could do it. But
no dog. Intention irrelevant.
g. U.S. v. Place: No privacy interest in illegal activity.
h. Texas v. Brown 1983: Search and seizure are two separate protected
things, and need not be concurrent
i. Soldal v. Cook County 1992: Seizing with no search (towing trailer)
covered by 4th.
j. Subjective Manifestation
i. Smith v. Ohio 1990: Reaching for bag thrown on hood of car
manifests intention of privacy. Not abandonment.
k. Open Fields
i. Hester v. U.S. 1924: Open fields not constitutionally protected.
ii. Oliver v. U.S. 1984: Footpath around gate into marijuana field.
Not protected.
1. Only areas around home protected
2. No social interest in privacy in open fields
3. Beyond curtilage not protected
iii. U.S. v. Dunn 1987: Four Factors of curtilage
1. Proximity to home
2. Within an enclosure surrounding the home?
3. Nature of the uses to which the area is put
4. Steps taken by resident to prevent observation by
passers-by
5. NOTE: Visual inspection from outside curtilage not a
search
l. Access by Members of the Public
i. Consensual Electronic Surveillance
1. U.S. v. White: One who commits a crime assumes the
risk that their companion may report to police (or be
bugged in this case).
ii. Financial Records
1. U.S. v. Miller 1976: Depositor allows records to be
accessible to bank, so no reasonable expectation of
privacy.
iii. Pen Registers
1. Smith v. Maryland 1979: Pen register on phone not a
search, because phone company can see numbers.
2. Note: Phone provider must give consent, or court must
issue order.
iv. Trash
1. California v. Greenwood 1988: No expectation of privacy
in trash if sufficiently exposed to public. Empirical test,
as most people dont look through trash but legally can.
v. Public Areas
1. Homeless expectation of privacy to effects (Connecticut v.
Mooney C)
2. Peering in gap of bathroom stall not search (U.S. v. White
C)
vi. Aerial Surveillance
1. California v. Ciraolo 1986: Public vantage point not a
search.
2. Dow Chemical Co. v. U.S. 1986: Aerial photographs by EPA
allowed.
3. Ordinary Overflights Florida v. Riley 1989: Empirical
test, hovering helicopter ok (Note concurrence wants
normative test).
vii. Manipulation of Bags in Public Transit
1. Bond v. U.S. 2000: Excessive manipulation of bag in public
transit is search. Normative test.
2. NOTE: Both normative and empirical used by Supreme
Court, with no real explanation of why which when.
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b. Stop
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e. Plain
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