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Criminal Procedure
Temple University School of Law
Sonenshein, David A.

Criminal Procedure with Professor Sonenshein: Basic Criminal Procedure: Cases, Comments and Questions (Spring 2012)

ARREST, SEARCH AND SEIZURE

1.      Introduction to the Exclusionary Rule:
a.      WOLF v. COLORADO: pp 218 Supreme Court holds that the Fourth Amendment does not require the exclusion of evidence from trial in state court for state crimes when the evidence was illegally seized under the Fourth Amendment. The Court reasons that 30 states currently do not require exclusion. Court stipulates that other measures should be taken to ensure police do not violate people’s fourth Amendment rights. Dissent does not believe these other methods will be effective; the only way to make sure people’s Fourth Amendment rights are protected is to exclude evidence gathered in violation of it.
b.      MAPP v. OHIO: pp 220 Police officers break into a suspect’s house without a warrant; evidence gathered therefrom was used in court to convict her. Court overrules Wolf v. Colorado. Fourth Amendment now excludes evidence procured in violation therefrom from admission in state courts in state matters. Court reasons that Wolf must be overruled because other states have been moving toward applying the exclusionary rule and the “other methods” of enforcement suggested in Wolf have proven unworkable. Dissent argues that it is not for the majority’s ruling deprives the states of their power to decide their laws; 14th Amendment does not give the Supreme Court the right to do that.
c.       Notes: pp 238
i.      Are there other limitations which might well be imposed upon the exclusionary rule?
1.      Kaplan: “The Limits of the Exclusionary Rule”:
a.      Exclusionary rule should not apply in the most serious cases (treason, espionage, murder, armed robbery and kidnapping by organized groups) because the political costs of the rule would not be in proportion to the benefits.
b.      Exclusionary rule should be inapplicable to cases where the police department has taken its fourth amendment responsibilities seriously as evidenced from published regulations and history of conduct.
ii.      Should the Court instead abolish the exclusionary rule entirely on the ground that the deterrence function stressed in Leon is more generally not served by exclusion?
1.      Burger’s Dissent in Bivens v. Six Unknown Named Agents: Lack of general deterrent efficiency because:
a.      No direct sanction over police officer who violates the 4th Amendment.
b.      Police have no stake in successful prosecutions.
c.       Policemen are not trained in the standards of conduct they are to follow.
d.      There are large areas of police activity that do not result in criminal prosecutions.
iii.      Statutory Reliance:
1.      Initially: MICHIGAN v. DeFILLIPPO: “Exclusionary rule required suppression of evidence obtained in searches carried out pursuant to statutes” subsequently held unconstitutional when the statutes, “by their own terms, authorized searches under circumstances which did not satisfy the traditional warrant and probable cause requirements of the Fourth Amendment.
2.      Later: ILLINOIS v. KRULL: “Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law.”
a.      Dissent O’Connor:
i.      History and Court interpretation of 4th Amendment support the Exclusionary Rule to the 20th c. equivalent of the act of authorizing the writ of assistance.
ii.      Sound distinction between legislature and judicial officer because a legislature’s unreasonable authorization of searches may affect far more people.
iii.      Politicians are more subject to political pressures that may threaten the 4th Amendment.
iv.      Scope of the Court’s good faith exception is unclear.
iv.      What if a police officer at the time of his search or seizure had relied upon law then authorizing such action, but that law as not in a statute but rather in an appellate court decision since disapproved by a Supreme Court case per the Court’s current retroactivity doctrine relates back to the time of the officer’s conduct?
1.      State v. Ward: “Good faith reliance upon the pronouncements of this court is on a par with the good faith reliance upon an apparently valid statute in Krull.”
v.      Should the fruits of constitutional but yet illegal arrests and searches be excluded?
1.      United States v. Caceres: Failure of an IRS agent to follow IRS electronic surveillance regulations did not require suppression because the Court did not wish to step on the Executive’s toes to regulate IRS conduct. The Court preferred to risk the “occasional erroneous administration.”
vi.      Although an illegal arrest or other unreasonable seizure of the person is itself a violation of the Fourth and Fourteenth Amendments, the exclusionary rule sanction comes into play only when the police have obtained evidence as a result of the unconstitutional seizure.
1.      Gerstein v. Pugh: Illegally arrested defendant is not himself a suppressible fruit.
d.      Notes on the “Dimensions” of the Exclusionary Rule: pp 248
i.      Evidence obtained by government agents, used as basis for questions to grand juries:
1.      U.S. v. Calandra: A grand jury witness may not refuse to answer questions on the ground that they are based on evidenced obtained from him in an earlier unlawful search.
a.      No realistic expectation of deterrence.
i.      A prosecutor would be unlikely to request an indictment where a conviction was unlikely.
b.      Brennan Dissent: To compel the defendant to testify in the first place under penalty of contempt thwarts his Fourth Amendment protection.
ii.      Evidence obtained by government agents, used in criminal case after conviction:
1.      Verdugo v. United States: Illegally seized evidence should not be admissible after conviction for consideration by the judge in determining the sentence imposed.
a.      Later distinguished by United States v. Schipani: “no appreciable increment in deterrence would result from applying a second exclusion at sentencing after the rule has been applied at the trial itself.”
2.      Pennsylvania Board of Probation and Parole v. Scott: No exclusionary rule if you know about someone’s parole status. Exclusionary rule is applicable only in criminal proceedings, not parole hearings.
a.      Dissent Souter: Police probably know someone’s parole status when they go after him, which is significant because:
i.      Police do not want to jeopardize a recommitment by rendering evidence inadmissible, so there would be a deterrence factor if the exclusionary rule applied;
ii.      Likelihood of trial is far less than parole revocation
iii.      Police and parole officers cooperate to an extent that they should not be treated differently.
iii.      Evidence obtained by government agents, used in “quasi-criminal” or civil case:
1.      Plymouth Sedan v. Pennsylvania: The exclusionary rule applies to forfeiture proceedings after 35 cases of plate glass were seized for being imported without paying customs.
2.      United States v. Janis: Police seized cash used in an illegally gambling ring and notified the IRS which made a levy against some of the seized cash. Defendant won motion to suppress the money/evidence which was

gnores Katz. Legality of position is not dispositive because the question should be whether public observation of curtilage is so commonplace that expectation of privacy is unreasonable.
iii.      Dissent: Reasonableness depends on frequency.
iv.      Other Premises: pp 263
1.      Business and commercial premises are covered by the Fourth Amendment:
a.      See v. City of Seatle: “The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.”
2.      Private areas in public places:
a.      State v. Bryant: Police officer who positioned above a rest room observed criminal conduct from above a bathroom stall. This is a search.
3.      Detention Facilities:
a.      Hudson v. Palmer: Prison contraband shakedown case. Prisoners have no expectation of privacy.
v.      Vehicles:
1.      Cardwell v. Lewis: Police seized a car from a public parking lot and a scraping of paint was taken from it. The paint scraping was not a search; no expectation of privacy.
2.      New York v. Class: Moving papers to view a VIN number is not a search. Gun uncovered in the process is a search, but a reasonable one.
vi.      Effects:
1.      BOND v. UNITED STATES: Brick of meth found in carry-on luggage after an exterior grope-inspection. Court held that personal luggage is an effect and that a physical inspection is more intrusive than a visual one like in Riley. Finally that a passenger has a reasonable expectation that their luggage will not be groped in an exploratory manner. Dissent: Squeezing does not differ from treatment other passengers are likely to give the parcel.
vii.      Enhancing the senses: (see Kyllo)
c.       KYLLO v. UNITED STATES: pp 265 Defendant convicted of growing marijuana in his house with heat lamps. Federal agent got the information necessary for the warrant by focusing a heat detector on his house to conclude that an abnormal amount of heat was coming from part of his house. Majority held that even though this scan did not penetrate to reveal the interior of Defendant’s house, Defendant still satisfies Katz because he has an expectation of privacy within his house and society finds that reasonable. Majority wanted to protect the sanctity of the home against the increased use of technology from without.
d.      Notes and Questions: pp 269
i.      Katz vs. Kyllo:
ii.      The canine nose:
1.      United States v. Place: Privacy interest in the contents of luggage at airport. However, because a canine drug sniffer does not need to open the bag, and does not require private items to be revealed, it is not a search subject to the 4th Amendment.
2.      Illinois v. Caballes: Reaffirms Place and applies it to a dog sniff of a vehicle during a traffic stop.
3.      United States v. Jacobsen: Where police lawfully came upon a white powder in a package originally opened by private parties, an on the spot the test of a trace of the powder which would reveal only whether or not it was cocaine was not a search.