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Criminal Procedure
Stetson University School of Law
Scully, Judith AM

THE INCORPORATION DOCTRINE: (selective incorporation)

TEST: Is the procedural safeguard at issue fundamental to the American scheme of justice or necessary to the American criminal process?
14th Amendment incorporates rights (from the Bill of Rights) that are “so rooted in the traditions and rights as to be ranked as “fundamental”
Due Process clause of the Constitution protects these rights and makes them applicable to the states
All of the Bill of Rights has been applied to the states except for the right to a grand jury indictment and the right to be free of excessive bail


“the right of the people to be secure in their persons, houses, papers, 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 person or things to be seized.”

EXCLUSIONARY RULE: all evidence obtained in violation of the 4th amendment must be excluded from trial (Mapp v. Ohio – incorporates exclusionary rule to the states)

FRUITS OF THE POISONOUS TREE: all derivative evidence obtained by searches and seizures in violation of the 4th amendment is inadmissible in court

EXCEPTIONS: (1) where the evidence is obtained from an independent source (2) where the evidence would have been discovered anyway (3) attenuation exception

US v. Leon: the suppression of evidence obtained pursuant to a warrant is only in those unusual cases in which exclusion will further the purpose of the exclusionary rule:

In absence of an allegation that the magistrate abandoned his detached and neutral role suppression is only appropriate if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause
GOOD FAITH EXCEPTION: searches conducted pursuant to warrants in objective good faith and within its scope are not done in violation of the 4th amendment and are not excluded (unless – see above)

PA Board of Probabtion v. Scott: the exclusionary rule does not bar the introduction at parole revocation hearings evidence seized in violation of the 4th amendment


Katz v. United States: what a person knowingly exposes to the public is not protected by the 4th amendment – what a person expects is private is protected

PRIVACY RULE: (1) there must be an actual subjective expectation of privacy (2) that society is prepared to recognize as reasonable (objective)
The person challenging the search must be the person with the reasonable expectation of privacy (must have standing)


home – has the greatest 4th amendment protection
curtilage – the land immediately surrounded and associated with the home (factors)
i. The proximity of the land to the home itself
ii. Whether the area is included within the enclosures surrounding the home
iii. The nature of the use to which the land was put
iv. Steps taken by the resident to protect the land from observation
open fields – not protected at all by the 4th amendment

California v. Greenwood: No expectation of privacy in garbage let outside of someone’s home
Aerial Surveillance Rule: the government can conduct non-sense enhanced aerial surveillance in public navigable airspace
US v. Karo: (Electronic beepers) installation of a beeper does not violate the 4th amendment but if monitoring the beeper reveals information that could not have been obtained through visual surveillance then there is a 4th amendment search
US v. Kyllo: (heat sensing) any physical intrusion into the home is a search within the context of the 4th amendment; there is a firm line drawn at the entrance of the house
United States v. White: (PLAIN FALSE FRIENDS DOCTRINE – no expectation of privacy in a conversation) no 4th amendment search if a government agent acting as a friend listens to and reports or records incriminating statements
Zurcher v. Stanford Daily: mere evidence can be searched for and seized on the premises of an innocent 3d party


RULE: when based upon the totality and the facts and circumstances within the officer’s knowledge and the facts and circumstances are reasonably trustworthy

arch and seizure supported by probable cause regardless of the subjective motivations of the officers; it is reasonable if the objective motivations support probable cause
EXCEPTION: there is limited government authority if the search and seizure is conducted in an extraordinary manner that is unusually harmful to privacy or physical interests

Atwater v. City of Lago Vista: (full custodial arrests for minor traffic misdemeanors)

RULE: if probable cause exists that an individual has committed even a very minor traffic offense in the presence of the officer he may arrest the offender

Tennessee v. Garner: (deadly force as a means of seizure – reasonableness)

DEADLY FORCE TEST: (1) deadly force can only be used where the officer has probable cause to believe that the suspect poses a threat or death or serious bodily injury to others and; (2) the officer must reasonably believe that deadly force is necessary to make the arrest or prevent escape
REASONABLENESS: depends upon the extent of the intrusion but how it is carried out; the use of deadly force is constitutionally unreasonable


HOME ARREST RULE: (Payton v. New York) an arrest warrant is required for a non-emergency arrest of a person in his own home where there are no exigent circumstances

Absent exigent circumstances the threshold cannot be breached

US v. Santana: (what is the home)

RULE: the threshold of the home is a public place where no arrest warrant is required – if the door is open

Maryland v. Buie:

PROTECTIVE SWEEP RULE: when the police make a arrest in the home they may search closets and other places enjoining the arrest (protective sweeps are permitted) – it must