Select Page

Criminal Procedure
St. Thomas University, Florida School of Law
Musto, Anthony C.

Fourteenth Amendment Due Process
The Bill of Rights – the first 10 Constitutional Amendments – provide individual protections for the people against the government. These initially only applied to the Federal Government.  After the Civil War, the 14th Amendment was passed. This provides due process protection against the States.
SCOTUS has determined that some of the rights within the BOR are so fundamental to our schemed of ordered liberty and system of justice that they also apply to the states. FUNDAMENTAL RIGHTS.
The recognized rights incorporated through the 14th Amendment’s Due Process Clause are:
–          4th Amendment Search and Seizure
–          5th Amendment Self-Incrimination; Double Jeopardy
–          6th Amendment: Right to Counsel; Confront Witness; Jury Trial (criminal proceedings); Speedy Trial; Public Trial
–          8th Amendment: Cruel and Unusual Punishment
Those not incorporated:
–          2nd Amendment Right to Keep and Bear Arms (outside the home)
–          6th Amendment Unanimous Jury Verdict
–          3rd Amendment Protection Against Quartering Soldiers
–          5th Amendment Grand Jury Indictment requirement
–          7th Amendment Trial to Jury in Civil Cases
–          8th Amendment Prohibition on Excessive Fines
The States can increase the scope of these rights, but they cannot lessen them. The Federal Constitution is the floor.  Example: Florida provides greater protection on 5th Amendment (Art. 1 § 9)
New Decisions by the Supreme Court – how are these applied?
When a case is still pending (prior to charges being filed, before indictment, during trial, during direct appeal), any new decision applies to that case.
On a collateral action (post-conviction relief, writ of habeas), whether the decision applies retroactively depends on whether it falls within an exception . . .
1.      Does the decision provide a NEW rule? Or simply a new way of applying it? If new…
2.      It is substantive in nature?
a.       If it is substantive, it applies retroactively
3.      If not substantive, than procedural. Will not apply retroactively unless it is a Watershed Rule.
a.       Watershed extremely rare. Must meet two requirements:
                                                              i.      Must be necessary to prevent an impermissibly large risk of an inaccurate conviction, and
                                                            ii.      Must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.    
Exclusionary Rule
Evidence obtained due to an illegal search or seizure (4th Amendment violation) will be inadmissible. The purpose of the E/R is to deter police misconduct.
First discussed in U.S. v. Weeks (1914). SCOTUS decided as a matter of policy, not that the Constitution required it. Later, in Wolf v. Colorado, SCOTUS declined to extended the policy as a requirement on the States. Later, in Mapp v. Ohio, and after more states had adopted the policy (and the composition of the Court had changed) the Court held that the E/R is Constitutionally mandated by the 4th Amendment if there is a violation. Additionally, it applied to the states. THIS WAS A FUNDAMENTAL CHANGE IN THE LAW.
General rule of exclusion: if evidence is found due to a illegal search or seizure, that evidence must be suppressed.
à If police exploit the illegality to obtain other evidence, cannot use that evidence either (Fruit of the Poisonous Tree (FPT)). Standard to be applied: whether, granting the prior illegality, the evidence can only be found by exploiting that illegality or by means sufficiently distinguishable to dissipate the taint of the illegality.
–          Inevitable Discovery: Nix v. Williams à (1) the evidence is the product of illegal government activity, and (2) if the prosecutor can prove by the preponderance of the evidence that the evidence would have been discovered by lawful means
o   Gov. should not be in a better OR a worse position
–          Good Faith [think back to the purpose] o   Has been applied to other situation:
§  Reliance on existing law (Davis v. US)
§  Reliance on a statute subsequently found to be unconstitutional (Heien v. NC)
E/R does NOT apply to civil, immigration, or grand jury proceedings
Arrest, Search, and Seizure
The Fourth Amendment
The right of the people to

A warrant is not validly issued unless it is supported by probable cause. Probable cause does not require certainty; a fair probability will suffice. Therefore, a probable cause showing is not invalidated by the fact that the conclusions it supports turn out to have been mistaken.
Probable Cause: Whether based on facts and circumstances known to the officer, would warrant a reasonable person to believe a crime is being committed or there is evidence of a crime there.
Challenging a Warrant:
A defendant can challenge the warrant by making a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and the allegedly false statement is necessary to the finding of probable cause.
If this is shown, the warrant is invalid and the fruits of the search must be excluded.
The validity of a warrant muse be based on the information and facts known to the officers and facts that they reasonably should know at the time of the application for the warrant. Not based on hindsight.
The Particularity Requirement
The Fourth Amendment prohibits general warrants. This attempts to avoid indiscriminate sweeps and arbitrary searches.
A warrant must particularly describe the place to be searched and the person or things to be seized.
It is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended. – Steele v. United States
The Scope of a Search based on a Warrant: officers can search anywhere the object of the search may likely be found. (e.g., if searching for a ring, can look in a jewelry box. If looking for a dead body, could not look in a jewelry box)