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Criminal Procedure
Santa Clara University School of Law
Uelman, Gerald F.

I. Incorporation of Bill of Right into 14th Amendment
a. Palko v. Connecticut, p.27
b. Adamson v. California, p.29
c. Danforth v. Minnesota, p.49
d. Duncan v. Louisiana, p.37
e. Apodaca v. Oregon, p.47 (fn.b)
f. Nearly Total Incorporation
i. Over time, almost all of the Bill of Rights has been selectively incorporated into the “Due Process” clause of the 14th amendment to apply to the States.
ii. Only the 5th amendment requirement of a Grand Jury for all indictments has not been incorporated to require application upon the States.
II. Right to Counsel
a. Right to Appointed Counsel
i. Betts v. Brady, p.299
· Facts: Indigent man indicted for robbery was not provided appointed counsel and was found guilty after waiving his right to a jury trial.
· Holding: Since the 6th amendment is not automatically incorporated into the 14th amendment, individual states should decide in which circumstances to require appointment of counsel for the indigent.
§ Court is not willing to require all states to always provide counsel so long as the conviction and incarceration is not “offensive to the common and fundamental ideas of fairness and right.”
· “[A]ppointment of counsel is not a fundamental right, essential to a fair trial.”
§ Since no court supported “total incorporation,” only those rights deemed “fundamental” were considered to apply to the States under 14th amendment.
· Court decides that a “totality of circumstances” test is what should be used to determine whether lawyer is necessary in this case.
· DISSENT (Black)
§ Argues for protection for indigents by providing counsel.
§ Disagrees with majority’s “totality of the circumstances” test
o Saw that it would require the court to function in a supervisory role over all such decisions.
§ Here, argues that petitioner was a farmhand w/ little education and not capable of guaranteeing himself a fair trial.
ii. Gideon v. Wainwright, p.302
· RULE: An indigent must be provided a lawyer in all felony cases.
§ Overrules Betts.
iii. Argersinger v. Hamlin, p.305
· RULE: The right to counsel extends to any ∆ facing the threat of actual imprisonment.
iv. Alabama v. Shelton, p.304
· ISSUE: Must a state provide counsel for trials that impose suspended sentences or probation with possibility for imprisonment?
· RULE: The right to appointed counsel extends to trials imposing suspended and/or probated sentences.
b. “Beginnings” of Right to Counsel
i. Rothgery v. Gillespie County, p.310
· RULE: The Sixth Amendment “beginning” of prosecution, providing when the right to counsel attaches, occurs at a ∆’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction.
· This attachment may occur pre-indictment if the government has used the judicial machinery to signal a commitment to prosecute.
· Concurrence
§ This case only decides when a ∆’s rights to counsel may begin or “attach.”
o Though the start of prosecution signifies the beginning of when the right may be asserted, it does not signal what right must substantively be given at that time.
o Therefore, the absolute “right to assistance of counsel” may not necessarily be required at that immediate point.
c. Griffin-Douglas “Equality” Principle
i. Douglas v. California, p.317
· RULE: A criminal ∆ has a constitutional right to appointed counsel to assist him in pursuing an appeal of a conviction.
§ This applies only to the first appeal of as right. Subsequent appeals need not require appointment of counsel.
ii. Ross v. Moffitt, p.321
· RULE: The Douglas rule does not apply to discretionary appeals and ∆ does not have right to appointed counsel for such appeals.
III. Arrest, Search and Seizure
a. Exclusionary Rule
i. Wolf v. Colorado (1949), p.53
· Holding: The 4th amendment bar on evidence illegally obtained in federal cases does not apply to the states under the Due Process Clause.
· Right to Privacy
§ The right is implicit and unquestioned under Due Process Clause of 14th and, therefore, applicable to the states.
§ The issue, however, is whether the Federal rule barring evidence obtained illegally arises from the same constitutional requirement or is a separate rule of evidence not directly tied to the constitutional right.
o The court here does not believe that the “remedy” of excluding evidence obtained from an illegal search and seizure is necessary nor required under the “Right to Privacy” of the Constitution.
· Weeks said that evidence from illegal S&S could not be used in a federal case.
§ Court says that this is a judicially/legislatively created rule and is not necessarily mandated by the Constitution and, therefore, does not require States to follow the Weeks rule.
· NOTE: This holding is overturned by Mapp v. Ohio.
ii. Mapp v. Ohio (1961), p.55
· RULE: All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.
§ Court says that the “exclusion doctrine” is an essential element of the constitutionally protected right to privacy in both State & Federal arenas.
§ Later cases limit this rule to an extent (e.g., Leon below)
· Court acknowledges that time has evidenced th

e does not apply to suppress evidence obtained through a violation of the knock-and-announce rule.
§ The knock-and-announce rule is not to protect evidence and process of obtaining evidence but, rather:
o Protection of human life and limb;
ØHelps prevent injuries from self-defense due to occupant’s being surprised by the sudden entry of police/people into the home.
o Protection of property; AND
ØPrevents injury to home and property from police’s needing to forcibly enter.
o Protection of privacy and dignity
ØProvides opportunity for resident to, for example, put their clothes on or get out of bed prior to police entry.
· Deterrence benefits vs. Costs of knock-and-announce entry:
§ Costs:
o Police would have to refrain from entering for a longer period of time than actually necessary in order to ensure validity of the announcement.
o More guilty criminals released back into society
o Greater litigation since there would always be questions as to what amounted to a “reasonable” time under the circumstances.
§ Deterrence benefits:
o Massive deterrence is hardly required since violation of the requirement does not produce evidence but just helps to prevent loss of evidence.
· Court argues that sufficient deterrence already exist including civil suits against police/municipalities, internal affairs complaints on officers’ records, etc.
§ Therefore, no need for an exclusion of evidence as a further deterrence.
§ Points out that there have only been 2 types of exceptions for not applying the exclusionary rule in all 4th amendment violations:
o Where application of the rule would not perform any deterrent result (Leon)
o Admissibility in non-criminal trials was at issue.
§ Here, neither exception applies so evidence should be excluded under the deterrence theory.
§ Further, dissent argues that the “knock” rule is tied to the warrant and, therefore, the entire search conducted following the announcement violation was unlawful.
o Thus, no independent discovery rule should “save” the evidence in this case since the police would not have independently discovered the evidence.