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

Criminal Procedure I

Professor Shellenberger

Spring 2015

I. Introduction

a. The 4th, 5th, and 6th amendments

i. Only apply against federal claims

ii. The 14th amendment applies to state claims through incorporation.

1. Incorporated the 4th, 5th and 6th amendments federal protections to the state level.

b. Free-Standing Due Process

i. Due Process Clause is the basis of incorporation of the bill of rights, but it also has independent free-standing rights.

1. You can have due process violated even if it does not fall within the bill of rights.

ii. Rochin v. California

1. Court holds that when police jumped on Rochin, and had his stomach pumped in order to get the pills he had swallowed and used it to convict him, the government violated free-standing due process clause of the 14th amendment.

a. Majority does not directly apply a privilege against self-incrimination through the 5th amendment because it is not incorporated yet; this was a state crime, not federal.

b. The court based its decision on general due process – government action that “shocks the conscience” and “would discredit the law” violates due process.

i. “Coerced confessions offend the community’s sense of fair play and decency.”

c. Due process involves vague standards that depend on judgments and discretion of judges, beyond looking at analogous precedent.

iii. Breithaupt v. Abram

1. Under the Rochin test, police have considerable leeway even when the body of the accused was “invaded”.

a. Police took a blood sample from an unconscious person which proved intoxication needed to sustain a manslaughter conviction.

i. Court said that there was NO due process violation.

b. Interests of society in scientific determination of intoxication as one of the great moral hazards of the road outweigh the slight intrusion of a person’s body.

i. Balancing government and individual interests.

ii. This does not offend our sense of decency or shock the conscience.

iv. Schmerber v. California

1. Defendant did not consent to blood being taken; yet the Court upheld the extraction of the blood and the use of the fruits of that in the trial. (Fruit of the poisonous tree)

a. Legally, the 4th amendment search and seizure (along with the exclusionary remedy) and the 5th amendment privilege against self-incrimination have been incorporated to the states.

b. On due process, the court applies Breithaupt and says that the extraction of blood does not offense our sense of justice.

i. On compelled self-incrimination, he was not compelled to speak or testify.

1. The 5th amendment only applies to testimonial evidence.

c. On unreasonable search and seizure, because there was probably cause it was not a violation of the 4th amendment.

v. Free-standing due process still exists, although it has largely been supplanted by incorporated protection from the Bill of Rights.

1. On specific constitutional protections, there is more content than due process and the analysis is more specific and precise.

c. “New Federalism”

i. The idea that federal law controls in federal prosecutions but that state law applies in state prosecutions.

1. States can go beyond to apply more protections to suspects and more restrictions on police as a matter of state law.

2. Federal constitutional requirements are a FLOOR not a ceiling.

a. SCOTUS cannot review state law/state protections because of a lack of jurisdiction.

ii. Harlan’s dissent in Mapp is based on federalism – states should be able to choose the remedy they want for constitutional violations.

II. Arrest, Search, & Seizure (4th/14th Amendments)

a. 4-Step Analysis

i. Does the 4th/14th amendment apply?

1. Standing? The people, search & seizure, government intrusion on protected interest. Liberty, property, privacy, possession.

ii. If so, what are the protections required?

iii. Are those protections violated?

iv. If so, is there a remedy? Exclusion.

b. The Search and Seizure Exclusionary Rule (Step 4)

i. Weeks v. United States (1914)

1. Evidence obtained in violation of the 4th amendment protection from unreasonable search and seizure must be excluded from federal trials.

a. No deterrent rationale.

b. Rationale is similar to that of Mapp.

ii. Wolf v. Colorado (1949)

1. 2 Holdings:

a. The basic core protection against unreasonable search and seizures (S&S) that applied to the federal government under the 4th amendment is incorporated to the states under the 14th amendment due process clause.

i. Protection against unreasonable S&S is basic to a free society, implicit in the concept of ordered liberty.

b. The 14th amendment due process clause does not require exclusion in the state court of evidence that is obtained through unreasonable S&S.

i. The right is incorporated, the exclusion is not.

ii. The basis for Weeks was not the explicit language of the 4th amendment, it is a matter of judicial implication.

c. No remedy because the constitution does not impose the remedy on states.

i. States might have other remedies.

1. Criminal charges

2. Public opinion

3. Internal discipline.

d. The exclusionary rule is flawed, according to the court.

i. Serves only to protect the guilty.

1. Allows guilty to go free.

ii. Court does not acknowledge that innocent people

nspection of the records of licensed motor vehicle and vehicular parts.

2. Mistake of law defense:

a. Reasonable reliance on a statute means no exclusion because there is nothing to deter.

vi. Davis v. United States (2011)

1. Police relied on prior Supreme Court decision which authorized their action, later overruled by Supreme Court.

a. Reasonable reliance on binding precedent later found to be invalid requires no exclusion because there is nothing to deter – police think they’re doing something right by relying on an official statement of the law.

2. In Belton, the Court held that if police arrest a driver of a vehicle they can search the passenger compartment. The Court then overruled this in Gant, but the Davis case was pending at the time. The opinion in Gant applied to Davis because of retroactivity.

vii. Hudson v. Michigan (2006)

1. Knock and announce case where the police failed to knock and wait the reasonable amount of time before entering.

a. Had a valid warrant.

2. Holding: there is no exclusion in a situation where the reasonably well trained police officers believe they followed proper procedures when in fact they had not.

a. The social costs of applying the exclusionary rule to knock and announce violations are considerable; the incentive to such violations is minimal, and the extent deterrence against them is substantial.

i. Resort to the massive remedy of suppressing evidence of guilt is unjustified.

3. Rationale: Cost Benefit Analysis.

a. Costs:

i. Flood of cases against police.

ii. Litigation over what is reasonable amount of time.

b. Benefits:

i. Not great here; civil suits already provide the necessary deterrence.

4. What happened to the Mapp exclusionary rule?

a. Dead.

i. Reduced to dicta.

viii. Herring v. United States (2009)

1. Defendant came back to get something out of his impounded car.

a. Police looked him up in neighboring counties and found a warrant for him.

i. Arrested and searched and found gun and drugs.

1. However, the warrant is no longer valid.

a. Still charged with crimes resulting from the search from Dale County Warrant.