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Criminal Procedure
Stetson University School of Law
Scully, Judith AM


95% of Crim. Pro. cases deal with 1 of 5 constitutional amendments:
4th –arrest, search, and seizure.
5th –grand jury requirement doesn’t apply to the states, but the state’s Constitution may require it.
6th –right to trial, right to a public trial, right to an impartial jury, venue requirement (where crime occurred), notice of charges, Confrontation clause (criminal D has the right to cross all of prosecution’s witnesses).
8th –prohibition of excessive bail and fines; most 8th amendment matters involve cruel and unusual punishment.
14th –most important aspect of this is the due process clause for this course; also have the equal protection clause (can apply in criminal cases where race is used in prosecution of a case or jury selection).

I.       The Nature and Scope of 14th Amendment Due Process and BOR Applicability to States
A.    Fundamental Rights and Incorporation Theories
1.      Fundamental Rights Theory—Palko v. Connecticut pg. 34
a.      Facts. Palko gets a life sentence for 2nd degree murder. The state appealed, got to retry the case and he was convicted on 1st degree murder and was sentenced to death. Palko argues that this is double jeopardy. It could not have been tried again in a federal court, so Palko argues that the 14th Amendment incorporates the BOR.
b.      Holding. The Court rejects this theory and states that if the D can appeal the case, then the state should be able to appeal for errors.
c.       Fundamental fairness or ordered liberty gives justices an ad hoc way of deciding cases. Some are in, some are out. 
d.      Overruled. This case was overruled in 1961. Now, double jeopardy applies to the states through the 14th Amendment.
2.      Incorporation Theory—Adamson v. California pg. 36
a.      Facts. Adamson challenged the law in CA that prosecutors could comment on the D’s decision to stay silent. He said this violated his 5th Amendment right to avoid self-incrimination. 
b.      Holding. The Court could not see why a comment could not be made on his silence and said that it was not fundamentally unfair for D to choose between being impeached on the stand or not taking the stand and having the prosecutor comment on it.
c.       J. Black’s Dissent set forth the Total Incorporation Plus. This doctrine states that all of the BOR apply to state proceedings plus those rights that are fundamentally fair. This is a distinct minority view.
d.      Overruled. Griffin Rule—overruled Adamson and stated that no comment can be made regarding the D’s failure to testify b/c it violates the 5th Amendment. It can be harmless error but it also can be irreversible error.
3. Neo-Incorporation—even though a specific guarantee does apply to the states through the BOR, not all of the federal procedures are binding on the states.
B.     Selective Incorporation (The Modern Approach)—Duncan v. Louisiana
i.            Facts. Duncan was tried on a misdemeanor w/out a grand jury. The punishment for the crime (up to 2 yrs. in jail and/or $500 fine) resembles a felony punishment in almost all other states. Because it was not a felony trial, he didn’t get a grand jury indictment. Duncan argued that this was a violation of his 6th Amendment right to a jury trial. 
ii.            Holding. Selective incorporation applies, meaning that only some of the BOR apply to state proceedings. The court said that if it is a serious offense (possible to get more than 6 months in jail) then the 6th Amendment right to a jury trial applies. 
iii.            TEST—Is the right “fundamental to the American scheme of justice?” If it is, then the 14th Amendment makes it applicable to the states through selective incorporation.
1.      20 out of 25 (80%) of the BOR are incorporated.
2.      BOR that do not apply to the states include 2nd (right to bear arms), 3rd (quartering soldiers during wartime), 5th (indictment clause and due process clause), 7th (right to a jury trial in civil cases), and 8th (excessive fines) Amendments.

II.    4th Amendment Overview/Background
A.    There are more opinions written on the 4th Amendment than any other amendment in the BOR.
B.     The S. Ct. looks at the 4th Amendment in two separate clauses: the reasonableness clause and the warrant clause.
1.      Reasonableness Clause—“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated . . .” 95% of the case law on the 4th Amendment deals with the reasonableness clause.
a.      U.S. v. Verdugo (1990) This is a case about the deportation of an illegal alien. The Court construed the word “people” in the 4th Amendment to mean “a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” pg. 84 Understanding
b.      You must show that there was a search and seizure before the 4th Amendment will apply. Further, it must be a gov’t conducted search or seizure.
c.       Most jurisdictions say that an off-duty police officer’s search does not trigger the 4th Amendment.
d.      Any state employee can trigger the 4th Amendment. It doesn’t have to be a police officer.
e.       Burdeau (1921) Private detectives broke into Burdeau’s office and took his papers. This did not trigger the 4th Amendment b/c it was not a gov’t conducted search or seizure.
f.       Definitions of “persons, houses, papers, and effects” are on pg. 90-91 in Understanding.
g.      Judges give houses the most protection. A warrantless search of a house is presumptively unconstitutional. Not so when searching a person.
h.      An arrest of a person is under the 4th Amendment b/c it is a form of seizure.
i.        The 4th Amendment does not expressly provide a remedy for evidence that is obtained from an unreasonable search or seizure. However, there is a lot of case law that sets forth the exclusionary principle.
2.      Warrant Clause—No warrant shall be issued unless you have (1) probable cause (higher than mere suspicion); (2) oath or affirmation (swear that the facts the officer is giving is true); and (3) particularly describing (the place to be searched and the persons or property to be seized).
C.    4th Amendment Approach
1.      Is it a search or seizure?
2.      Is it conducted by a state or federal government? (Foreign gov’t does not apply.)
3.      Is there standing? (Victim of search/seizure is the only one with standing. Ex.—Cops find your drugs in your friend’ house during an illegal search. You can’t raise the 4th Amendment.)
4.      Was the search and/or seizure reasonable? This is a question for the judge.
D.    Relationship Between the Reasonableness Clause and Warrant Clause
1.      Beginning with the Rehnquist court, the S. Ct. began to ignore the warrant clause and said that the touchstone of the 4th Amendment is reasonableness. 
2.      There are many exceptions (over 20) that have been carved out for warrantless searches. 
3.      The litmus test for warrantless searches revolves around reasonableness. To determine if a particular search/seizure is reasonable, a judge uses a balancing test.
4.      When using the balancing test, the judge compares the degree of intrusion on the privacy interest of the D against the gov’t reasons/need for the search a

does not apply to deportation hearings regarding illegal aliens.
1984—U.S. v. Leon sets forth the good-faith exception to the exclusionary rule at a federal trial, when there is a defective warrant b/c of no PC. This is a modification of the rule. However, the Court still uses cost/benefit analysis. The good-faith exception is an objective test, requiring the belief of an objectively reasonable cop that has “a reasonable knowledge of what the law prohibits.”
1998—PA Bd. of Probation v. Scott. The court again declines to extend the operation of the exclusionary rule beyond the criminal trial context. The court held that the federal exclusionary rule does not bar the introduction at parole revocation hearings of evidence seized in violation of parolees’ 4th Amendment rights b/c the costs outweigh the benefits.
1.      Katz v. U.S. (1967). Phone booth tapping case
a. Facts.   The gov’t tapped the external part of a phone booth that Katz was using to run bets and attempted to use this evidence in his conviction. This is the seminal case for what constitutes a search under the 4th Amendment. There has to be a search or seizure by the gov’t before the 4th Amendment can have any application. The caselaw said that no trespass equaled no search, and that is why the FBI put the recording device on the outside of the telephone booth.
b.      Holding. The evidence was inadmissible b/c the omission of an advanced magistrate authorization “bypasses the safeguards provided by an objective predetermination of PC, and substitutes instead the far less reliable procedure of an after-the-event justification for the search, too likely to be influenced by the familiar shortcomings of hindsight judgment.
c.       Concurrence. J. Harlan’s concurrence suggested a 2-prong test to determine if a search has occurred: (1) Subjective Prong—a K must have an actual (subjective) expectation of privacy against what the gov’t is doing and (2) Objective Prong—a privacy expectation that society would recognize is reasonable. (This is the critical factor, where you win or lose your suppression hearing.)
d.      Hypothetical. What if the FBI had a trained lip-reader who was in effect recording the content of the conversation? What you seek to preserve as private even in an area open and accessible to the public may be protected by the 4th Amendment.
e.       Comment. The subjective expectation test has a real weakness. All the police would have to do is to notify the public of what they can monitor and then there would not be a reasonable expectation of privacy. J. Harlan abandoned this test 4 years later and the court no longer looks at it.
f.       Comment. This case rejected the idea that there are constitutionally protected areas.
g.      Comment. To be a search, you need to have: (1) gov’t activity (2) that infringes or intrudes on a person’s reasonable expectation of privacy. To determine this, use the 2-prong test.
2.      Handout