CRIMINAL PROCEDURE 311B
Professor Mitchell Keiter
714-459-1153
mkeiter@wsulaw.edu
“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 searched.”
United States Constitution, Amendment IV
“No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life and limb; nor shall
be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for
public use, without just compensation.”
United States Consitutution, Amendment V
“In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation;
to be confronted with the witnesses in his favor, and to have
the assistance of Counsel for his defence.”
United States Constitution, Amendment VI
COURSE DESCRIPTION:
Criminal Procedure will review and analyze United States Supreme Court decisions that interpret the
Fourth, Fifth and Sixth Amendments to the United States Constitution. Whereas substantive criminal law
is derived from penal codes enacted by state legislatures, and historical doctrines developed by English
courts over the centuries, criminal procedure is shaped by (recent) Supreme Court cases. Unlike Criminal
Law, the cases in the textbook do not merely reflect the law, they create it. Accordingly, this class will
focus on the case readings intensively. The textbook is Criminal Procedure: Constitutional Constraints
Upon Investigation and Proof (Fifth Edition), by James J. Tomkovicz and Welsh S. White. There is no
secondary Dressler-like book assigned as required reading. The reading load, however, will be heavier
than last semester’s.
There will be some significant changes in how I teach this class as opposed to last semester’s. One is the
above-described difference between the two subjects and the nature of the casebook. This semester, you
will not read two similar cases with disparate outcomes, reflecting different rules for different jurisdictions
and different eras. The cases all emanate from the U.S. Supreme Court. Moreover, you will notice that
each section’s cases are usually presented in chronological order. The cases are not independent of one
another, each one is decided in accordance (or, occasionally, in rejection of) the principles announced in the
prior cases. The caselaw is thus an ongoing stream, sometime meandering in different directions, with
various tributaries, rather than discrete and separate puddles.
We shall therefore discuss these cases with more intensive analysis than was applied in Criminal Law. The
“rules” will not be found in a separate hornbook but the cases themselves. Central to mastering the cases
will be the examination of several “problems” found at the end of each chapter. These cases are adapted
from actual cases decided by lower federal and state courts, which face the challenge of determining the
law in a specific situation, being guided by only a few U.S. Supreme Court cases, none of which are
directly on point factually. Students, like these lower court judges, must determine which cases are
stronger authority, and in the process, explain which facts were most central to the U.S. Supreme Court’s
decision in the prior case---and why.
Due to the importance of the cases, I expect students to brief them—for your own benefit. The brief should
contain the following: (1) a BRIEF recitation of the OPERATIVE FACTS, which is usually possible in 2-3
sentences; (2) the issue facing the court; (3) the reasoning of the Court’s majority (this can be done with
one or two sentence-long bullet points); (4) the reasoning of the dissent; and (5) a single sentence
description of the Court’s holding (underlined, in capitals or bold letters). I shall collect one brief a week
to monitor your progress.
Although briefs will facilitate your pre-class preparation, there are too many cases for you to absorb so
much material. So I recommend that you pare the info down to index cards, with just the case name, the
facts (one sentence) and the holding. This will help you recall everything you need for the exams.
PREPARATION:
I have provided not only the reading assignments but also the assigned problems at the end of each section.
I expect students to take full advantage of this notice. Students may consult with their study partners prior
to class. I do not expect students to come to class unable to participate in discussions, describe assigned
cases, or turn in a brief. Likewise, I do not expect students to be unable too say a single word about an
assigned case for the day simply because their computer is not on the right page. I understand if you can
not memorize every word of the case---neither can I. But I do expect students to be able to recall at lea
tone or two sentences worth of facts and then explain how the case compares to others regarding the same
issue.
ATTENDANCE:
Attendance is an absolute prerequisite to law school success. Although there may be occasional
emergencies that preclude attendance, students are expected to attend punctually every class. There will be
a sign-in sheet distributed at the beginning of class. A student who is absent from more than four classes
may be dropped from the class. Furthermore, because the class is only 90 minutes long, students are
expected to remain in their seats throughout class absent significant physical need. For the evening class,
there will be a break after 90 minutes.
SCHEDULE AND OFFICE HOURS:
This afternoon (B) section will meet every Monday and Wednesday from 2:45 until 4:15. The evening (C)
class will meet Mondays from 6:30 until 9:45. There will be no class on Wednesday April 4 or Monday
April 9. My general office hours will be Wednesday from 4:30 to 8:30, but I can make alternative
arrangements to accommodate students where necessary
GRADING:
There will be a 90-minute closed book midterm examination, scheduled for March 26. It will count for 25
percent of the student’s overall grade. The final examination will be worth 75 percent, although these raw
scores may be adjusted according to a student’s participation, preparedness and punctuality.
COURSE OUTLINE:
The class will first cover the Fourth Amendment, which will take us up to the midterm. We shall examine
what constitutes a “search” so that Fourth Amendment considerations even arise in the first place (Chapter
One); the requirements of probable cause (Chapter Two) and warrants (Chapter Three); those “exceptional”
categories of cases where a warrant is not required (Chapter Four); and the way the Court construes the
imperative of “reasonableness” in evaluating searches and seizures (Chapter Five).
After that, the class will cover confessions, which implicate the Fifth Amendment guarantee against
compelled self-incrimination. The class will examine Due Process considerations (Chapter Seven) general
rules regarding confessions (Chapter Eight),, and the right to counsel in the context of confessions (Chapter
Ten).
Next, we shall cover identifications, which involve both Fifth Amendment Due Process considerations
(Chapter Twelve) and Sixth Amendment Right to Counsel issues (Chapter Eleven). Finally we shall
examine the remedy of excluding evidence from trial when the various constitutional guarantees described
above have been violated (Chapters Thirteen and Fourteen).
READING LIST:
The following list includes the assigned cases, the “note cases,” which are presented in synopsis form, and
designated with only one case name, and the assigned problems. The bold case is the one whose briefs I
shall collect. The list is designed for use by both the afternoon students and evening students. For the
evening students, whatever is covered by the afternoon students will be covered in hour first 90 minutes,
and the remaining material will be covered in the second 90 minutes.
There is also a supplement to the textbook. This may be found at www.lexisnexis.com/lawschool/ under
“study aids.” Some assignments (of last year’s cases) appear there.
The list is ambitious. I will not be disappointed, (or surprised), if I drop some material along the way.
DATE
CHAPTER
CASES
PAGES PROBLEMS
Katz v. United States
United States v. White
Smith v. Maryland
California v. Ciraolo
Bond v. United States
Oliver; Knotts
5-10
10-16
17-24
24-32
32-36
31-32
Kyllo v. United States
36-47
[2, 4, 6, 9, 11]
Spinelli v. United States
Illinois v. Gates
Whren v. United States
Pringle
57-69
69-86
86-91
84
[2-6, 8, 10-11]
Illinois v. Wardlaw
Alabama v. White
Florida v. J.L.
427-436
437-441
441-444 [11-12, 15-19]
SEARCHES AND SEIZURES
CHAPTER ONE
Jan. 17/22
Threshold Issues
Jan. 22
Threshold Issues
CHAPTER TWO
Jan. 24/29
Probable Cause/
CHAPTER FIVE (A)(3)
Jan. 29
Reasonable Suspicion
CHAPTER THREE
Jan. 31/Feb. 5
Warrants---Need and Preparation
Feb. 5
Warrants---Execution
United States v. Watson 105-116
Knowles
187
Atwater v. Lago Vista 117-132
United States v. Grubbs Supp 3-7
Franks; Connelly; Coolidge 145-46
Andresen v. Maryland
132-139
Maryland v. Garrison
Wilson v. Arkansas
Banks
139-144
146-149
151
[6, 3, 4, 12]
CHAPTER FOUR
WARRANTLESS SEARCHES
Feb. 7/12
Search Incident to Arrest
Chimel v. California
United States v. Robinson
New York v. Belton
Thornton
Payton v. New York
166-175
176-186
188-195
195
197-208 [1, 3, 9-11, 2]
Feb. 12
Vehicle Searches
Chambers v. Maroney
California v. Carney
California v. Acevedo
Wyoming v. Houghton
238-243
252-258
268-277
278-285 [5, 1, 7, 10]
Feb. 14/19
Exigent Circumstances
Warden v. Hayden
223-225
Welsh
Brigham City
225
Supp 24 [1, 3, 4-5, 8-9]
Feb. 19
Consent Searches
Schneckloth v. Bustamante318-328
United States v. Matlock 334-337
Illinois v. Rodriguez
338-345
Georgia v. Randolph
Supp 8-22[3, 5, 4, 7, 9-11]
Feb. 21/26
Detentions
Terry v. Ohio
Dunaway v. New York
U. S. v. Mendenhall
Florida v. Bostick
California v. Hodari D.
373-386
387-392
392-401
402-410
413-420 [8, 4, 3, 5, 7]
Feb. 26
“Plain View Plus”
Horton v. California
Arizona v. Hicks
Minnesota v. Dickerson
Michigan v. Long
Mimms; Wilson
Maryland v. Buie
352-360
360-365 [1, 3, 4, 9, 8]
482-488
475-481
481
488-494 [23-26, 30]
Feb. 28/Mar. 5
Special Needs
Michigan Dept. v. Sitz
Indianapolis v. Edmund
Illinois v. Lidster
Skinner v. RLEA
Chandler v. Miller
Von Raab; Veronia; Earls
518-525
526-536
537-541
541-555
559-565
556-558 [10, 7, 5, 8, 6]
Mar. 5
Body Searches
Schmerber v. California
Winston v. Lee
588-590
590-594 [3, 4, 6, 7, 9]
Voluntariness
Brown
Spano v. New York
Colorado v. Connelly
Mincey
645
657-663
664-670
663
[1, 5-6]
Mar. 7/19
Self-Incrimination Privilege
Miranda v. Arizona
681-698
New York v. Quarles
699-708
Dickerson v. United States 709-721 [1-2]
Mar. 12/14
Spring Break
Mar. 19
Midterm Review
[End of material to be covered on midterm]
CONFESSIONS
Mar. 21/Mar. 26 Custody
Interrogation
Mar. 26
Midterm
Mar. 28/Apr. 2
Invocation
Berkemer v. McCarty
Yarborough v. Alvarado
Stansbury; Mathiason
723-729
730-740
729
[2, 4, 6, 9]
Rhode Island v. Innis
Illinois v. Perkins
Fulminante
746-755
755-762
763
[1-2, 4-5, 10, 7]
Michigan v. Mosley
Edwards v. Arizona
Bradshaw
Davis v. United States
Smith
Minnick v. Mississsippi
784-791
791-798
807
798-806
807
808-815[3-5, 8, 14, 18-19]
[The March 28 class will be recorded. It will be broadcast, along with the April 2 afternoon lecture, on the
evening of April 2. Evening students are welcome to attend the afternoon lectures if they choose.]
Apr. 2
Midterm Post-Mortem
Apr. 4/9
No Class
Apr. 11/16
Confessions and Counsel
Massiah v. United States
Brewer v. Williams
United States v. Henry
Kuhlmann v. Wilson
Cobb
853-857
858-871
875-884
886-892
873
[2, 5, 10]
Identifications and Counsel
United States v. Wade
Kirby v. Illinois
United States v. Ash
903-918
920-926
926-936 [2, 5]
Identifications and Due Process
Stovall v. Denno
Manson v. Brathwaite
941-945
945-958 [4-7]
History
Weeks v. United States
Mapp v. Ohio
Withrow
969-973 (Skim)
973-983 (Skim)
986
Standing Limitation
Alderman
Rakas v. Illinois
Olson
Payner
Minnesota v. Carter
989-991
991-1004
1004
1006
1007-1016 [1-2, 5-6]
Independent Source/
Inevitable Discovery
Silverthorne Lumber v. U.S.1022-1023
Murray v. United States 1023-1030
Nix v. Williams
1030-1038 [2-3, 7-8]
Good Faith
United States v. Leon
Evans
IDENTIFICATIONS
Apr. 16
EXCLUSIONARY RULE
Apr. 18/23
Apr. 23
1100-1120
1125
[5-6, 8-10]
Additionally, there we shall make up the missed three hours from April 4 and 9. These make-up section
will be held twice, to avoid student conflicts; students may attend either. In the second 90 minutes, we
shall review my final exam from last year (which will be posted prior to class for your preparation). In the
first part, we shall cover the following:
Attentuation
.
Wong Sun.v. United States 1045-1050
Oregon v. Elstad
1062-1075
United States v. Patane
1087-1093
Hudson v. Michigan
Supp. 27-45 [2, 4-5, 7, 9]