Select Page

Criminal Law
Temple University School of Law
Shellenberger, James A.

Criminal Procedure
Fall 2012
Criminal procedure sources
1. Federal Constitutional Rights (important underlying values)
·         4th Amendment
o    (1) search and seizure clause: right against unreasonable searches and seizures
o    (2) warrant clause: no warrant without probable cause
o    Note: But doesn’t say explicitly what happens, i.e. exclusion of evidence
o    Underlying values: Designed to protect (1) liberty interests, (2) privacy interests, (3) possessory values
·          5th Amendment
o    (1) Grand Jury indictment for capital crimes clause (we’ll talk about a little)
o    (2) Double jeopardy (we won’t talk about)
o    (3) Self-incrimination: no person shall be compelled in any criminal case to be a witness against himself
o    (4) Due Process Clause  (also has independent content like 14th)
o    Underlying values: (1) Protects value of freedom from government compulsion on individual to produce evidence against himself, (2) balance between individual and state in criminal matters, (3) protection of adversarial system→ prevent from becoming inquisitorial system
·         6th Amendment
o    (1) Right to speedy trial, public, speedy (won’t talk about)
o    (2) Right to confrontation and other trial rights (won’t talk about)
o    (3) Right to counsel: in all criminal prosecutions, the accused shall enjoy the right to…Assistance of Counsel for his defense.
§  applied at other stages than just trial
o    Underlying values: Fundamental protection on adversarial system → protects basic fairness of trial process
·         14th Amendment
o    Due Process Also independent content→ “free standing DUE PROCESS ”
o    Underlying Values: General protection of substantive/procedural freedom
2. Federal court supervisory power of administration of fed criminal system
3. State constitutional provisions that provide more protection than US Constitution can be important
Arrest, Search and Seizure
·         4th Amendment: The right of people to be secure in their persons, houses, paper and 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 persons or things to be seized.
·         The Exclusionary Rule à excludes unlawfully obtained evidence.
(1)    Exclusions: treason, espionage
(2)    an illegal arrest is a violation of unreasonable seizure, but the exclusionary rule only applies when police have obtained evidence as a result of the seizure
(3)    defendant himself cannot be a “fruit” of the poisonous tree
·         Federal Exclusionary Rule: In federal prosecutions, the 4th A bars the use of evidence obtained through unlawful searches and seizures by federal agents. (Weeks)
(1)     Judicially implied remedy based on the 4th A- Therefore judges can shape its application
(2)    Problems w/ Exclusionary rule being  limited to federal court =
§  Weeks – fed agents introducing evidence in federal court – yes
§  Wolf – state agents in state court – no
§  Question becomes:
·         fed agents introducing evidence in state court? fed courts can enjoin fed agents
·         state agents introducing in fed court?  not excluded
·         leads to Mapp…
Extended to the States in Mapp: Evidence obtained by the state from an illegal search and seizure by state agents is inadmissible in state court as a violation of the 14th A. (Mapp) 4th A now incorporated through DP clause and enforceable against the states
Mapp v. OH evidence obtained when officers broke into and conducted an illegal search of Mapp’s home was used for her conviction by the OH state ct of possession of obscene materials. Purpose of search was based on info that a person wanted for questioning in connection w/ a bombing could be found there
RULE:  The 4th A is incorporated in the 14th A DPC and requires that state courts exclude evidence obtained by unlawful searched and seizures.
Rationale: overturned Wolf – when Wolf decided most states were opposed to exclusionary rule while today more than half have adopted it.
1)       Exclusionary rule is essential to the protection of the right to be free from unreasonable searches and seizures and the integrity of the judiciary
2)      Purpose of the exclusion rule is to compel respect for the constitutional guaranty in the only effectively available way – by removing the incentive to disregard it.
3)      Government MUST follow its own rules in order to be respected.
4)      CA has ruled that no other remedy works; can’t be a hardship because the feds handle it fine
Mapp rationale: drastic remedy to exclude RELEVANT evidence; for a defendant, can exclude most important evidence needed to prove a case – weakens the case to the point of a reduction in the charge, or can wipe out case entirely, esp. in cases involving possession – so why do we do this??
·         to deter police misconduct – otherwise Amendment is just an empty promise
·         protecting the right to privacy – Wolf says this is the core of the Amendment – but it’s not all about privacy 
o    the REAL rationale: to give the 4th Amendment teeth – implied that if you do it, then the defendant must receive this remedy, because otherwise the Amendment has no meaning
§  the exclusionary remedy only protects guilty defendants – does nothing for the innocent – ie, when nothing is found that can be seized
o    NOTE: that the 4th A ONLY applies to the gov’t (state or federal) and as such the prosecution may use evidence obtained by private parties even if the methods such parties used were illegal.
Deterrence – how does the court think it works?
·         police officers are forward looking and this will have an effect on their future performance
·         assume that the P.O. will known the rule – but the rule is not all knowable or easy or logical 
·         assume that P.O. when searching a D wants to follow the rule and that following it is more important that not following it – but P.O. have own considerations – promotions, safety; better to get gun off the street than making sure prosecuted
§  Note: only applies to unconstitutional seizure; not to illegal arrests or being forcibly brought within the jurisdiction of the court – Gerstein v. Pugh and United States v. Crews – defendant is not a suppressible fruit
Different rationale for exclusionary
US v. Leon warrant Issued in good faith and reasonable reliance was ultimately found to be unsupported. Used to find drugs, which were later suppressed
 in absence of allegation that magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable good faith belief in the existence of probable cause.
·         Good faith inquiry: whether a reasonably well trained officer would have known that the search was illegal despite the magistrates authorization.
Reasoning:  exclusionary rule is NOT part of 4th constitutional right, but just judicially created mandate. Why not constitutional right? B/c not in text and rights already violated at time or search and exclusionary rule just judicially created remedy to safeguard 4th Amendment rights through its deterrent effect, rather than a personal constitutional right of the person aggrieved.
Not constitutional right therefore court uses balancing – cost/benefits approach.
·         Substantial Costs of Exclusion:
o    (1) interferes with criminal justice system’s truth-finding function b/c guilty go free/get reduced sentences b/c reliable evidence being excluded,
o    (2) may generate disrespect for law and the administration  of justice
Marginal or Non-Existent Benefits/Deterrence of suppressing evidence obtained on subsequently invalidated:
o    Reliance on behavioral effects on judges and magistrates misplaced b/c
o    exclusionary rule to deter POLICE misconduct rather than punish judicial errors
o    (2) no evidence that magistrate inclined to subvert the 4th, or lawlessness of actors requires sanction
o    (3) no significant deterrent effect on the issuing judge or magistrate b/c no stake in outcome of particular crime proceeding so threat of exclusion doesn’t matter
·         As with any remedial device, application of rule restricted to those areas where its remedial objectives are thought most efficaciously served, i.e. effectively deterrent.  To have deterrent effect must:
§  (1) alter the behavior of individual law enforcement officers, or
§  (2) or alter polices of departments.
·         Cannot be expected & shouldn’t be applied to deter objectively reasonable law enforcement activity
§  When acted in good faith and within scope, NO POLICE ILLEGALITY AND SO NOTHING TO DETER
§  Penalizing officer for judge error wont logically contribute to deterrence of 4th violations
·         Should be ordered only on case by case basis and only in unusual circumstances where exclusion will further the purposes of the exclusionary rule.
(1)     Suppression 4 circumstances:
(1)     magistrate misled by info that officer knew false or would have known false except for reckless disregard for truth,
(2)     magistrate wholly abandoned judicial role,
(3)      if affidavit so lacking in indicia OF probable cause to render belief in its existence entirely unreasonable,
(4)      so facially deficient that executing officers cannot reasonably presume valid.
Illinois v. Krull, unconstitutional search made pursuant to statute authorizing warrantless inspection of records of licensed vehicles & vehicle parts sellers
Same standard as Leon of objectively reasonable reliance.  Unless statute clearly unconstitutional, an officer cannot be expected to question judgment of legislature.
o    1st inquiry: Is there evidence that legislators inclined to subvert/ignore 4th?
o    No basis legs inclined to subvert oath, no  showing that their lawlessness requires app of extreme sanction of exclusion
o    2nd inquiry:  will exclusion of evidence have significant deterrent effect on legislators?
o    No, greatest deterrent invalidation of statute
o    Knock-and-announce, principle, incorporated into the Fourth Amendment, which often requires law enforcement officers to announce their presence and provide residents with an opportunity to open the door prior to a valid Fourth-Amendment search
Hudson v. Michigan, warrant for drugs and guns, announced but only waited 3-5 seconds before entering
Violation of the knock-and-announce rule does not require the suppression of evidence using the exclusionary rule
·         This is primarily because the goals served by a knock-and-announce policy tend to be lesser than other requirements (such as the warrant requirement) of a valid Fourth-Amendment search: whereas the latter is to protect a reasonable expectation of privacy in a person's body, papers, and effects (among other things), the knock-and-announce rule is designed only to provide a brief moment of privacy for an individual to compose himself before a valid search occurs, to prevent an individual from mistakenly believing that police are common intruders and thus endangering them, and to prevent property damage from a forcible entry
o    Because police with probable cause and a valid warrant are already entitled to an entry and search, violation of the simple knock-and-announce rule has not been deemed grave enough in the Federal arena or in most states to justify suppression of the evidence.
4th Amendment only applies to government officials – not to PIs or foreign officers –
Burdeau v. McDowell – 4th applies when obtained by private persons acting as instruments of the gov’t
Objects searched by private persons and then turned over to police
United States v. Jacobsen  – fed express opened damaged package, cut tube and found plastic bags containing white powder.   Put back in box– but left open & called police and reopened later for police, field tested for cocaine
agents viewing of what private party had freely made available for his inspection didn’t violate 4th
o    not significant expansion of earlier private search so no warrant needed
o    No privacy interest since remained unsealed, private parties had just searched, and called police on their own accord for express purpose of viewing contents
o    removal of plastic bags and visual inspection didn’t enable agents to LEARN ANYTHING NOT PREVIOUSLY LEARNED FROM PRIVATE SEARCH.  It infringed no legitimate expectation of privacy & so not a search w/in 4th.
o    field testing of cocaine NOT A SEARCH , would only reveal whether or not cocaine, likelihood that will actually compromise legitimate interest in privacy TOO REMOTE to characterize as search w/in 4th

Independent origin or source — The illegally obtained evidence is itself excluded, but the government may establish the same facts independently of the illegality. That is, evidence is admissible if obtained from a source independent of the illegality, even though it proves the same facts. Here there is simply no causal connection between the illegality and the offered evidence.
(Wong Sun)(Illegal arrest in Toy own house/ Toy wants to suppress Lee’s drugs)
Argument is that provided that no information obtained during the initial entry or occupation of the apartment was needed or used by the agents to secure the warrant, the subsequent valid search warrant was a means sufficiently distinguishable from the illegality to purge the evidence of any taint arising from the entry.
o    Yee had drugs and made statement that he sold to Toy – statements suppressed as fruits against Toy;
Inevitable discovery — Although obtained as the result of unlawful action, the secondary evidence is admissible if the government proves it would have obtained the evidence anyway, inevitably and lawfully, through some procedure it certainly would have undertaken or was undertaking. Certainty of procedure, predictability of discovery.
Brewer v. Williams (fruit – the body – not suppressed on theory that it would have been found anyways)
Nix v. Williams II Williams made statements to the police (without an attorney present) which helped lead them to the body. Williams was only read his Miranda rights after he was arrested.
If the prosecution can establish by a preponderance of the evidence that evidence obtained illegally, inevitably would have been discovered by lawful means, the evidence is admissible. (no bad faith limitation)
o    Functional Similarity btw independent source and inevitable discoveryà  is that in the exclusion of evidence that would inevitably be discovered would put the Prosecution in a worse position, b/c police would have obtained evidence if no misconduct had taken place.
Attenuation; dissipating the taint — Causal connection exists but is too remote; illegality is a factor in obtaining the evidence but not a significant factor. Analogous to “but for” causation without “proximate causation.”(Wong Sun)
Inquiry is “whether granting establishment of the primary illegality has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint?
RULE: Sufficient attenuation effectively renders the defendant without standing, thereby allowing the evidence because it was not a product of illegality against him.
E.g. Wong Sun’s Statement – He was released after a lawful arraignment*, there were several days b/w the release and the confession, and he confessed voluntarily
Standing – you can only challenge violations of your own rights!
4TH AMENDMENT: Prohibition Against Unreasonable Searches & Seizures
1.       Was there a search?
Katz v. US Katz was convicted of transmitting wagering information over telephone lines in violation of federal law. the government placed a listening device to the phone booth that the petitioner used (Police don’t capture any other people in the phone booth, listen only to Katz side of convo gambling)
Issue: is whether the attachment of a listening device to the outside of a public telephone booth in a search and seizure within the meaning of the 4th Amendment?
New Katz RULE à Changes from physical invasion to REASONABLE EXPECTATION OF PRIVACY.
o    Its harder to know what exactly the rule is, thus harder to comply w/ it – the harder it is to ascertain what the rule is – the less likely the police will know what exactly the rule is and to comply w/ it.
Holding (1): Govt activities in electronically listening to/recording Δs words violated the privacy petitioner justifiably relied while using the telephone booth and thus  constituted “search and seizure” w/in meaning of 4th  Fact that device didn’t penetrate wall of booth has no constitutional significance
o    Thus search and seizure b/c violated privacy that was “justifiably relied” – not knowingly exposing to public, actions deliberately intending to maintain privacy, sought to keep convo private, believed would be private
4TH A protects privacy, not property; 2 threshold requirements for a search is a:
o    government intrusion
o    Private Searcher: If searcher is employed by a private co. and acted w/o request or encouragement from a gov’t actor, then the search is outside the scope of the 4th amendment.
o    Private Search acts at the direction of gov’t:
§  Instrument of state – 2 factors:
·         Degree of gov’t encouragement, knowledge and/or acquiescence w/ regard to private actor’s conduct
·         The purpose underlying the private party’s action – was pursuing the gov’t interest or did he promote his own personal or business objectives
o    State Action: If the DA or a government actor (state action) requested.
o    Conversion of  a purely private search into one subject to constitutional constraints:
§  Occurs where gov’t recipient of items subjects them to additional examination
·         Further examination by gov’t agent MUST be substantial