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Criminal Procedure
Villanova University School of Law
Pether, Penelope J.

Criminal Procedure
Penelope Pether

Preliminary Material
Selective Incorporation Analysis:
– Look at the total right guaranteed by the relevant Bill of Rights provision
– procedural safeguards must be “fundamental to the American scheme of Justice” or “necessary” or “fundamental” “in the context of the criminal process maintained by the American states” to come in via 14th
– If they do they apply to the states to the same extent as they apply to the Fed Gov’t
– Just as not everything in Bill of Rights fundamental, there may be fundamental procedural rights not in first 8 amendments.
Duncan v. Louisiana (1968)
– Trial by jury is fundamental in serious offenses and the 6th amendment (in its entirety,
including procedure) is applicable to the individual states
– Following Duncan, USSC selectively incorporated all but 4 of guarantees dealing with criminal procedure
USSC hasn’t ruled on incorporation
· 5th requirement of prosecution through indictment
· 8th prohibition against excessive bail
· 8th prohibition against excessive fines
· 6th guarantee that the jury be selected “from the state and district where the crime shall have been committed, which district shall have been ascertained by law”
*lower cts unanimously agree 8th is incorporated, but are divided over the 6th
Rochin v. California (1952) stomach-pumping case
– Empowers the USSC to nullify any state law if its application “shocks the conscience,” offends “a sense of justice” or runs counter to the “decencies of civilized conduct”
Danforth v. Minnesota (2008)
– States can go broader than feds, but not narrower
– Issue of retroactivity
United States v. Leon (1984)
– A good faith exception is created when warrants are technically deficient
o Evidence obtained in executing the warrant is admissible
o Need:
§ Good faith- honest belief
§ Objective- reasonable person would think P/C is established
– Doesn’t include:
o Magistrate shopping
o Bare bones P/C
o Police are reckless
o Facially deficient
o Get someone else to execute faulty warrant
Hudson v. Michigan (2006)
– Police executing valid warrant waited only 3-5 seconds after K&A to break down door
– K&A violation w/ a valid warrant doesn’t elicit exclusionary rule for evidence
– Interests protected K&A:
o Human life and limb
o Avoid destruction of property
o Protect elements of privacy
– Gov’t interests:
o Prevent destruction of contraband
o Prevent escape of individuals
**E/R is nothing more than a judge-made evidentiary rule

The Fourth Amendment- When It Applies
Katz v. United States (1967)
– Facts: Listening device attached to phone booth w/o warrant; USSC- no go, reasonable expectation of privacy
– 4th amendment protects people, not places and doesn’t depend on physical intrusion
o Actual subjective expectation of privacy
o The expectation is one society is prepared to recognize as reasonable
– What a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected
– One has “standing” only if the gov’t violated the privacy on which he justifiably relied
o Can only invoke one’s 4th interests, not another’s
California v. Greenwood (1988)
– Facts: incriminating evidence seized w/o warrant from suspects’ opaque garbage bags on street curb
– Expectation of privacy was not one society was willing to recognize as reasonable
o Exposed to the public sufficiently in a place susceptible to search
o Readily accessible to anyone- children, animals, snoops, scavengers
o Conveyed voluntarily to a third party
Florida v. Riley (1984) plurality
– Facts: warrantless police surveillance from a helicopter (400 ft up) of a partially covered greenhouse in a residential backyard
– In an age of routine flight, observable by the naked eye, the expectation of privacy is not one society accepts as reasonable
o Any public person could do the same
o No evidence offered the flight was rare
o Legally allowed to fly at that height, no interference w/ use
o No observation of private details
– Curtilage- area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life
o Consider
§ Proximity to home
§ If included in an enclosed area surrounding the home
§ Nature of uses
§ Steps taken to protect by resident
– O’Connor’s concurrence: flights lower than 400 ft, although legal, would violate reasonable expectations of privacy
o Relevant issue: rareness of helicopter at that height
US v. Karo (1984)
– Facts: installation o

h every patron in the bar

The Fourth Amendment- Search Warrants
– Generally, searches of premises need warrants
Maryland v. Garrison (1987)
– Facts: warrant was not factually specific enough, but based on good faith
o Warrant allowed for the search of an entire third floor of an apt
o Police didn’t know the third floor consisted of two apts, only one of which they were after
– Objective facts available at the time suggested no distinction between the sought apt and the third floor premises
o Failure to recognize the overbreadth of the warrant was objectively understandable and reasonable
§ Reasonable under 4th requires sufficient probability
Richards v. Wisconsin (1997)
– Breach of K&A
o Police had warrant, suspect opened door but slammed it shut when he saw police
o Police kicked in door and found suspect half out a window along w/ drugs in the ceiling
– No knock entrance was allowable- police had R/S he may destroy evidence
o Exceptions to K&A
§ Police must have a R/S that a K&A under the circumstances would be dangerous or futile
§ K&A would inhibit effective investigation of crime by allowing destruction of evidence
· Case-by-case evaluation of the circumstances
– Remember, in Hudson, a violation of K&A doesn’t warrant the E/R

Fourth Amendment- Warrantless Arrest and Search of Persons
– Lawful warrantless arrests require P/C, NOT exigent circumstances
o Reasonable grounds to believe an offense had been committed and that the person arrested was the offender
United States v. Watson (1976)
– Generally, you don’t need a warrant to make a felony arrest with P/C in public place
Police are permitted to arrest, w/o a warrant, for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there were reasonable