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Criminal Procedure
Villanova University School of Law
Chanenson, Steven L.

CRIMINAL PROCEDURE— Prof. Channeson—Fall 2007


a. Incorporation Basics:
1. Connections between the Bill of Rights and the States

ii. Due Process Clause of the 14th Amendment

1. “nor shall any State deprive any person of life, liberty, or property, without due process of law”

iii. Incorporation:

1. Total Approach(never adopted)
a. Everything in Bill of Rights applies to all states

2. Fundamental Rights Approach (older view)
a. Require the state apply those rights that are implicit/fundamental to the American order of liberty and/or scheme of justice

b. Only really important ones

c. Applied on case by case amendment

3. Selective Incorporation Approach (more modern/current view)
a. Accepts basic fundamental right view, for most part

b. Things not in Bill of Rights can be rights

c. “if anything in the right is so important to the process of justice, all of it applies”

d. If applicable at all, the federal scope is the same in all states.

iv. U.S. v. WATSON


a. 4th Amendment

i. “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 seized.”


b. The Exclusionary Rule (p.55)

1. Evidence gathered in violation of the 4th Amendment is not admissible in a criminal trial against the defendant.

ii. Generally speaking
1. Defendant’s primary remedy for state’s violation of the 4th Amendment

2. Exclusionary rule is NOT CONSTITUTIONALLY MANDATED, but is judicially mandated. Thus, may change the remedy in the future if a better one can be thought up.

3. Exclusionary rule does not benefit those who are searched illegally, but no evidence is found in the illegal search (e.g. Police want to harass someone, but are not looking for evidence to assist in their prosecution).

a. The exclusionary rule applies only to those items appropriately deemed the “fruits” of the particular constitutional violation. (HUDSON)

iii. The Exclusionary Rule applies to the states

1. In Wolf v. Colorado and Mapp v. Ohio the Sup. Ct. first rejected and then accepted the notion that this exclusionary rule is constitutionally required in the state courts.

2. Rationale:
a. Deterrence to the police

b. Procedural uniformity—prevent evidence in that was unconstitutionally obtained

c. Upholds the integrity of the criminal justice system; prevents tainted evidence in
d. Healthy federalism—avoiding conflicts between state and fed courts

iv. Cost of the Exclusionary Rule
a. Some guilty Δs go free

b. DA may refuse to bring case fwd—i.e. impacts charging decision

v. “Fruit of the Poisonous Tree” Doctrine
1. In general, the exclusionary rule extends not only to the direct products of an unconstitutional search and seizure but also to ancillary evidence that results from the illegal search.

2. The fruit-of-the-poisonous-tree doctrine is subject to three qualifications:

a. the independent source doctrine;

b. the inevitable discovery rule; and

c. the attenuated connection principle.

vi. MAPP v. OHIO (1961)
1. Facts:
a. officer forcibly entered ∆’s house in order to search for a bombing suspect. Didn’t have warrant. Didn’t find suspect but found obscene material which was used as evidence in ∆’s conviction

Concurring opinion:
a. Reasonable Expectation Standard (changed old trespass doctrine):
i. 1. the individual must have exhibited an actual expectation of privacy, and
ii. 2. the expectation he exhibited must be one that society is prepared to recognize as reasonable.
3. Facts:
a. Federal officers, acting without a warrant, attached an electronic listening device to the outside of a telephone booth where the defendant engaged in a number of telephone conversations.

4. Pre Katz (1967)
a. The controlling legal test at the time for determining whether police conduct violated the Fourth Amendment was known as the “trespass” doctrine:
b. Under the trespass doctrine, the Fourth Amendment did not apply in the absence of a physical intrusion – a trespass – into a “constitutionally protected area,”such as a house.
5. Holding: Post 1967 (The decision of Katz)
a. Noting the advent of modern technology that allowed the government to electronically intercept conversations without physical intrusion into any enclosure, the Court abandoned the trespass doctrine and announced that the appropriate inquiry for Fourth Amendment challenges was whether the defendant had a “reasonable expectation of privacy.”:
Applying this new standard, the Court found that despite the fact that the telephone booth was made of glass and the defendant’s physical actions were knowingly exposed to the public, what he sought to protect from the public were his conversations