Crim_Pro_Unknown1 - Incorporation of due process rights to...

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Incorporation of due process rights to state prosecutions. Case-by-case basis Only minimums should be required of the states to allow innovation All but 7 th amendment guarantees have been incorporated Search and Seizure Timeline: Accosting Non-consentual stop/frisk highly intrusive invasion No justification Articulable suspicion (Warrantless) Probable Cause (Warranted) What areas are protected: Katz (37) Old rule: Prevented governmental intrusion into protected physical space – Goldman/Olmstead rule Subjective intent to have privacy: Intent must have been manifested through positive action In their persons: “What a person seeks to preserve as private.” Katz Conversations are considered private if some action is taken to preserve contents. Actions are protected inside the house if positive & effective action is taken to prevent viewing of actions. “Houses, papers and effects:” Only common-law curtilage is protected Any governmental interference with a legitimate property right is protected. Seizure of small amounts of chemical for assay is not an unreasonable interference with the property right. However, mandatory urine or blood tests are seizures, as the gathering process is an unreasonable interference of the property right & the tests can show legitimate secrets (disease, pregnancy, prescription drugs, etc.) Abandoned things or places are not protected. Expectation of privacy must be objectively reasonable Anything voluntarily exposed to the public is not protected: VINs on cars, inadvertent disclosures, consent, phone numbers dialed, checks exposed to banks Legal public access to information grants police access without 4 th amendment protection. Chemical tests for contraband, drug-sniffing dogs/pigs are not invasions of 4 th amendment rights as the investigation cannot uncover legal activity. Content of prison cells are not protected because these are things people have no objective right to believe are not secret. Who may not search: Police Agents of police Search procedures taken by private entities required by federal regulations Any search/seizure with ‘clear indices of Gov’t encouragement, endorsement or participation” However, public officials may “re-search” what was discovered by a non-agent private party. Civil officials in condemnation proceedings or other interference with property rights. Warrants Why: Promote review by uninvolved party – magistrate Prevent hindsight from manufacturing probable cause Provide limits to the search based on the uninvolved judgment. What constitutes probable cause: Facts making it probable that it is more likely than not that illegal activity has occurred. Mere opinion is not sufficient.
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This note was uploaded on 03/03/2010 for the course LAW 28465 taught by Professor Carson during the Fall '09 term at University of Texas at Austin.

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Crim_Pro_Unknown1 - Incorporation of due process rights to...

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