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Criminal Procedure
UMKC School of Law
O'Brien, Sean D.



I. Incorporation issue revolves primarily around the “Due Process” clause of the 14th Amendment, as due process is the grounds that most people attempt to use to get rights incorporated on the states

a. Majority approach to Incorporation is the Selective Incorporation

II. Incorporation under the 14th Amendment doesn’t just cover rights expressly provided in the Bill of Rights, but also Substantive Due Process rights (Rochin v. CA)

III. 4th Amendment search and seizure clause had been incorporated on the basis that it is part of the “concept of ordered liberty (Mapp v. OH)

IV. 5th Amendment privilege against self-incrimination has been incorporated on the states (Malloy v. Hogan)

V. 6th Amendment right to jury trial has been incorporated, but is only incorporated right that hasn’t been incorporated “jot-for-jot,” as some flexibility has remained (Duncan v. LA)

VI. 6th Amendment right to counsel in all felony cases has been incorporated (Gideon v. Wainright)

VII. 5th Amendment guarantee against Double Jeopardy has been incorporated (Benton v. MD)

VIII. 6th Amendment right to speedy trial has been incorporated (Klopfer v. NC)

IX. 6th Amendment “compulsory process” clause (i.e. subpoena power of the court) has been incorporated (Washington v. TX)

X. 6th Amendment Confrontation Clause (right of defendant to be present and face-to-face w/ witnesses and to cross examine them) has been incorporated (Pointer v. TX)

XI. 8th Amendment “cruel and unusual punishment” clause has been incorporated (Robinson v. CA)


I. Once a decision have become final (i.e. has traveled through the entire Direct Review process) new laws usually won’t be applied retroactively to those cases, as this is considered the “curtain of finality” by the Supreme Court (Shea v. LA)

II. Harmless Error Doctrine – If a defendant’s rights are violated (either at that time, or based on retroactively applied rules) a conviction may be left to stand if such a violation is harmless and doesn’t affect the outcome of a case (US v. Hastings)

Exclusionary Rule

I. Originally, the Exclusionary Rule was only enforced in federal court, but not state court. “in a prosecution in state court the 14th Amend. does not forbid the admission of evidence obtained by an unreasonable search and seizure (Wolf v. CO)

II. Current Rule is that the Exclusionary Rule applies at both state and federal level (Mapp v. OH)

III. Good Faith Exception –

a. If a search and seizure is performed in good faith, even though illegal, evidence obtained from the search is admissible in court (US v. Leon)

Limitations on the Exclusionary Rule

I. Exclusionary Rule does NOT apply to “Knock and Announce” Violations (Hudson v. MI)

Is there a search?

I. Under Katz v. US, a search is two-fold inquiry:

a. Is there a reasonable expectation of privacy?

b. Is it one that society is ready to accept as reasonable?

II. Little or no expectation of privacy

a. Things that are curtilage and protected from searches on the ground may not receive the same protection for searches in the air (FL v. Riley)

III. Business and commercial premises are covered by the 4th Amendment (See v. City of Seattle)

IV. Using technology which provides police information they otherwise could not obtain w/out a physical intrusion into the property requires a search warrant before this technology is used in surveillance (Kyllo v. US)

V. Always draw a time line and evaluate whether each police action is supported by the prior activity – each step should be supported by the previous step (US v. Place)

VI. In regards to the 5th Amendment, a person is only protected from producing evidence against themselves, not from others producing evidence against them (Andersen v. MD)

VII. Aguillar-Spinelli Doctrine

a. Totality of Circumstances Test – As long as a neutral magistrate can reasonably determine that, based on the informant’s information and all other available facts (i.e. based on a combination of (1) credible information (history), (2) a reliable informant and (3) independent corroboration), there is probable cause to believe a search or arrest is justified, a warrant may be issued. (IL v. Gates)

i. **replaced Aguilar-Spinelli test**

VIII. Passage of time may cause probable cause to disappear for consumable items like drugs (US v. Steeves)

IX. Information providing probable cause needs to be connected to the place to be searched (US v. Lalor)

X. Defendants always have the right to challenge an affidavit (Frank v. DE)

XI. Probable cause may exist to arrest someone, even if the illegal items aren’t found in their immediate possession, if it would be reasonable for the police to infer that the group was engaged in a common enterprise (MD v. Pringle)

a. Police Can Infer Common Enterprise

XII. Probable cause to search a specific place doesn’t provide probable cause to search everyone inside that place unless there is sufficient probable cause to believe that the person in question is involved in the illegal activity for which the search warrant for the premises was given (Ybarra v. IL)

XIII. 4th Amendment draws a firm line at the entrance to the home – police must have a warrant to enter a home to search or make an arrest (Even if Probable Cause Exists) (Payton v. NY)

XIV. End result is that if warrant turns out to be overbroad, but over breadth was unknown until after it was executed and execution was made in good faith, probably will be found reasonable (MD v. Garrison)

a. Test: were the police’s actions reasonable at the time they acted

XV. Warrantless arrest may be made on probable cause and w/out showing of exigent circumstances (US v. Watson)

XVI. Police have authority to make arrest and temporarily detain a suspect based on probable cause, but if detention is for extended period of time, will require a neutral determination of probable cause made by a magistrate to justify such detention – typical rule is 24-48 hours (Gerstein v. Pugh)

XVII. Warrantless arrest may be made even for minor misdemeanors (infractions) which would not even involve the potential of jail time if committed in the presence of an officer – based on common law (Atwater v. City of Lago Vista)

XVIII. The scope of an officer’s right to stop and arrest a fleeing suspect is dependent on the crime in question:

a. If dealing w/ a violent crime, then police may use deadly force to effectuate an arrest.

b. If dealing w/ a petty criminal, can’t use deadly force (TN v. Garner)

XIX. Search incident to lawful arrest does not require a warrant under the 4th Amendment. (an example of where you can conduct a search w/out probable cause) (US v. Robinson)

XX. A warrantless search of a vehicle based on probable cause is valid, even if resulting from a pretextual stop based on some minor traffic violation, as long as the officer has probable cause for making the stop (i.e. has observed the traffic violation).

a. Subjective intent of officers is irrelevant in making initial stop (Whren v. US)

XXI. If absolutely no probable cause exists to justify the initial stop, and it’s random any evidence eventually obtained by a warrantless search is inadmissible. (DE v. Prouse)

XXII. The scope of an officer’s right to stop and arrest a fleeing suspect is dependent on the crime in question:

a. If dealing w/ a violent crime, then police may use deadly force to effectuate an arrest.

b. If dealing w/ a petty criminal, can’t use deadly force. (TN v. Garner)

XXIII. Inventory searches subsequent to arrest are valid if done reasonably (IL v. Lafayette)

XXIV. Time frame for a valid search incident to arrest extends beyond the actual moment of arrest and to a significant time in the future. (US v. Edwards)

XXV. If exigent circumstances exist, such as that the evidence may be destroyed in the time needed to get a warrant, and there is no arrest to provide for search incident to arrest, warrant requirement may still be waived if intrusion is minimal b/c state has interest in preserving evidence. (Schmerber v. CA)

XXVI. If search is too intrusive it may be completely unreasonable and therefore invalid, regardless of whether a warrant is procured. (Winston v. Lee)

XXVII. Some intimate body searches, even if conducted incident to arrest, must be conducted by skilled medical professionals in order to be valid. (US ex rel Guy v. McCallee)

a. Can only perform warrantless search incident to arrest, not incident to a traffic stop. No arrest = no valid search (Knowles v. IA)

XXVIII. Look at the timeline!!

a. If search is performed and there w

nsistent w/ some standard police procedure that is innocent in nature and not intended as a means of obtaining evidence to use against the car owner. (Ask if the officer is acting w/in good faith, consistent w/ the policies of the Dept.) (Inventory Searches) (CO v. Bertine)

Warrant Exception – Stop and Frisk

Think of this as a “search light”. It’s less than a full blown search but there are still constitutional protections.

Both sides came away from Terry claiming victory

Law enforcement came away saying they do have a right to stop and frisk

The civil rights movement said they were victorious by showing that the 4th amendment governs such stop and search incidents.

I. Under a “Terry Stop” when person is not under arrest, but clearly not free to leave, this is a seizure for purposes of the 4th Amendment, so 4th Amendment protections do apply. (Terry v. OH)

a. Searches incident to Terry Stops are very limited in scope – only gives officer right to search for weapons that could be used against him, not for any evidence.

b. Basically allows for a pat-down of the outer clothing only looking for weapons

c. Weapons are traditionally defined as guns, knives and/or clubs.

d. Exception is the “plain feel doctrine”

e. If person has other objects on them and officer can say w/ certainty based on feel alone that the item is contraband, he may be able to justify using that as well – significant limitations placed on this rule

II. In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. (US v. Sharpe)

III. When is a stop not a stop? As long as it is objectively clear to a person that they are free to leave, there is not Terry Stop and the 4th Amendment is not implicated. (FL v. Bostwick)

IV. If detainment is caused only by something other than police, then there is still no Terry Stop and no 4th Amendment issue. (INS v. Delgado)

V. Terry Stop can be effected either through showing of actual physical force (or threat of use of such force – such as displaying a weapon) or by mere showing of authority to effect a stop (such as flashing a badge or ordering someone to stop – and then chasing them). (CA v. Hodari)

a. Once you jettison something, you lose the protection that the limited scope accompanying a Terry Search provides.

VI. An officer “seizes” the passengers as well as the driver of a car when an officer pulls them over. (Brendlin v. CA)

VII. If police receive anonymous tip that crime is afoot, tip alone is not enough to support stop w/out some independent corroboration by police investigation to establish specific and articulable facts that crime is afoot. (FL v. J.L.)

VIII. Once person is moved to another room or detainment area, Terry Stop has been exceeded and officer must show probable cause for his search. (US v. Sokolow)

IX. Terry stops may be used on people suspected of past crimes (but not yet solved), not just crimes in progress. (US v. Hensley)

X. In Terry Stop, containers in the person’s possession are subject to the same search rules as if they were in a car – officers can search them. (IL v. Wardlow)

a. Flight alone may not be enough to justify Terry stop, but flight from a high crime area might be sufficient to indicate wrong-doing.