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Criminal Procedure
University of Toledo School of Law
Hamilton, Melissa

Criminal Procedure – Investigations            Professor Hamilton                   Fall 2009
I. Introduction
            A. General Concepts
                        i. Much of the Bill of Rights is now incorporated into the states via the 14th
                                    a. “Nor shall any state deprive any person of life, liberty, or property,
                                          without due process of law”-14th Amendment of 1868
                        ii. Criminal Procedure is about enforcing the law in a balanced manner
                        iii. Mostly objective basis for government action is the standard
                        iv. Supreme Court uses both bright line rules (categorical) and balancing of                                          interests (case by case)
                        v. Course implicates 4th, 5th, 6th, and 14th Amendments (incorporates 4,5,6)
            B. Constitutional Interpretation
                        i. Originalism (Framer’s Intent and Textualism)
                        iii. Separation of Powers and the relationship of government versus individuals
                        iv. Looking at Precedent
                        v. American Traditions, customs, and practices
                        vi. Contemporary morality and attitudes
                        vii. Considerations of Practicality and Prudence
            C. The Fourth Amendment: “The right of the people to be secure in their persons, houses,
                 papers, 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
                        i. The First part of the amendment is the Reasonableness Clause
                        ii. The second half of the amendment is the Warrant Clause
            D. States can grant more, not less than the 4th Amendment Requires
            E. The following aspects of the Bill of Rights do not Apply to the States (but many states
                 have them in their own constitutions anyway)
                        i. The Right to Bail
                        ii. The Right to a Grand Jury indictment for a capital offense
                        iii. The Right to have trial in the district where the offense was committed
            F. Free Standing Due Process Rights (not in the Bill of Rights, but incorporated to the
                        i. Must prove guilt beyond a reasonable doubt
                        ii. Cannot use an overly suggestive lineup
                        iii. Must suppress invalid confessions
            G. Free Standing Due Process Rights that do not apply to the states
                        i. The right to a 12 person unanimous jury in criminal trials
            H. Protections of the Fourth Amendment:
                        a. Liberty: Protects in Arrest (Seizure of the Person)
                        b. Privacy: Protects in Searches
                        c. Possessory: Protects in Seizures
            I. State Constitutions and statutes may be violated in certain cases but this does not mean
                the 4th Amendment is violated if federal 4th Amendment is not (Greenwood)
            J.   Where cops looked in car stopped for minor traffic
                  ordinance violation and saw drugs in it (Whren)(created probable cause)
                        1. But probable cause not enough for intrusive or physically
                            invasive techniques (bullet lodged in shoulder so they had to get
                            a warrant to remove it); moved from case by case to categorical rejection
                                    b. See Scott v. Harris (handout) where cop chases fleeing suspect and
                                         suspect claims illegal seizure when cop hit him. Safety interests to
                                         others outweigh suspect’s concerns (use of categorical balancing)
            K. Court often applies a Sliding Scale Concept to many 4th amendment situations
                        1. The more intrusion into one’s 4th amendment interests, the more reason and
                             suspicion is needed
            L. Suspects look for a flaw in Constitutionality (like a coerced confession) to try to
                exclude everything they have standing to thereafter
II. The Exclusionary Rule
            A. Generally, evidence obtained in violation of the 4th Amendment excluded (Mapp)
            B. Prevents the Government from having evidence handed to them on a silver platter
            C. Supposed to uphold the integrity of the law enforcement process
            D. In addition to Exclusion, the following consequences may occur for violations of the
                 4th Amendment:
                        a. Civil Rights lawsuits against police
                        b. Tort Lawsuits
                        c. Civil RICO claims
                        d. Criminal complaints against officers
                        e. Internal Disciplinary Action
            E. Only applies to criminal trials proceedings not to:
                        i. Grand jury indictments
                        ii. Sentencing (except coerced confessions)
                        iii. Deportation or other civil hearings
                        iv. probation or parole violations
                        *can only be used in a criminal trial against defendant if they choose to testify
III. Exceptions to Exclusion

                              c. purpose and flagrancy of the police misconduct
                                                            d. Act of free will by the defendant
                                    b. Also, exclusion is less likely to be applied when the fruit of the
                                        poisonous tree is a live witness vs. tangible evidence (witness exclusion                                          would require a very short time frame)
                                                i. like a Confession v. drugs
                        2. Independent Source Doctrine
                                    a. Evidence discovered as a product of police illegality, but knowledge of
                                        the evidence also gained from an independent source than the evidence
                                        may be admissible
                                                i. Evidence discovered for the first time lawfully
                                                            a. If officers discover evidence lawfully the first time, and
                                                                in a second illegal search discover the same evidence,
                                                                then the evidence would be permissible pursuant to the
                                                                 independent source doctrine
                                                ii. Evidence initially discovered unlawfully, but later discovered
                                                    lawfully in a manner independent of the original discovery
                                                            a. Evidence will be considered admissible if a search
                                                                warrant after the fact can be supported with probable
                                                                cause and based on an affidavit that does not include
                                                                anything learned by the police during the illegal first
                                                            b. If it can be shown that the police would