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Criminal Procedure
Villanova University School of Law
Dobbyn, John F.

1) Incorporation and The Exclusionary Rule
            A) Two competing theories about Incorporation:
1)      Fundamental Rights/Ordered Liberty
                  -Palko v. Conn (1937)(Dead case): Double Jeopardy, found in the 5th, is not fundamental to the concept of ordered liberty and therefore not incorporated through the 14th.
                  -Test: Fundamental/Ordered Liberty
                  -Overruled by Benton: D.J. is fundamental to liberty.
– Adamson v. Cali (1947)(Dead case): Citing Palko the court decides that 5th right not to self incriminate is not incorporated through 14th to states. “Natural Law”
                  -Dissent: The history of the 14th demonstrates that it guarantees no state shall deprive citizens of the rights found in the Bill of Rights. This is the voice of ‘Total Incorporation”
2) Selective Incorporation
            Differences between ‘fundamental test’ and selective incorporation
1)      The context is different. Fundamental looks at natural rights while selective looks that the rights in the context of the American system.
2)      The bills are not spliced down when applied to the states.
*The only right that is not incorporated is the right of the grand jury. Not all states are req. to have an indictment process.
            Rights that are still open to the courts.
            -Prohibition of excessive bail
            -Prohibition of excessive fines
            -Requirement that jury be selected by state and district which crime was committed.
            -Duncan v. Louisiana (1968): Develops a new test- Selective Incorporation:
                        Must take four steps in determining what to select…
1)      Look at total right guaranteed to you by the Bill (Totality of Cir.)
2)      Was it fundamental or necessary in the context of the criminal process maintained by the American states? Abandon whether it is essential to ordered liberty
3)      If they do apply, then they apply to the same exact extent they do to the Fed. Gov’t.
4)      There may be fundamental procedural rights not found in the first eight amendments.
–          The court in Duncan found that a trial by jury is fundamental to American system of justice thus 14th due process guarantees trial by jury in all cases where, if they were fed. the def would be guaranteed a trial by jury under 6th. This deal with serious criminal cases. The court does not define ‘serious’ but they look at length of punishment.
– Rochin v. Cali (1952): The court can nullify a state or federal law if its application shocks the conscience, offends a sense of justice or runs counter to the decency of civilized conduct.
B) The Exclusionary Rule
            Rule: Evidence obtained in violation of the 4th is ordinarily not admissible in a criminal trial. However there are exceptions to and interpretive limitations to this rule. Developed out of Weeks.
                  1) Wolf v. Colorado(1949): The 14th does not forbid admission of evidence obtained by an unreasonable search and seizure. The exclusionary rule is not fundamental, but rather judicially created—using Fundamental/Ordered Liberty (above).
                  2) Mapp v. Ohio (1961)(WarrenCourt): Officers entered residence without a warrant and seized evidence that was later used against Mapp. Rule- All evidence obtained by search/seizure in violation of the constitution is inadmissible in the states. The 4th right to privacy is applied to the state through the 14th.
                  3) US v. Leon (1984): First determines that the E. Rule is not a constitutional right in an of itself. Drugs were suppressed because warrant was not based on probable cause. The affidavit only contained allegations of untested informant and limited police corroboration. This case modified the E. Rule by saying: “Where there is objective good faith reliance on a technically deficient warrant then evidence obtained pursuant to that warrant shall not be excluded. There must be reasonable grounds, based on substantial evidence, to believe that 1) the items you are looking for are seizable because they are connected with criminal activity and; 2) that those items will be found in the place to be searched. One must look at the totality of the circumstances to determine if action was objectively reasonable and in good faith.
                                       – Claims of non-objective good faith: 1)Magistrate shopping; 2) It must meet the test for probable cause; 3) When the magistrate is no longer neutral or objective; 4) Facially defective warrant; 5) If the police officer who files the affidavit is not the police officer w

ized based on info picked up by Thermo imager. Holding: Thermo technology is not in use in the general public, and the info obtained by the imager could not have been obtained by the naked eye or without physical intrusion. The 4th draws a firm line at the front door, but also a bright line and therefore use of this type of technology would need a warrant; it was an unlawful search.
6) US v. White(1973): An informer would wear a wire while def. talked about criminal activity. When convo. took place in informers house, police listened and recorded from closet. The events in this case happened before Katz(above). Holding: 4th does not protect against misplaced beliefs. Entering into criminal activity is ‘at your own risk’
Zurcher v. Stanford(1978): No extra protection for the search of a media premises other than the 4th warrant requirements. Furthermore a search of a premises of a third party not accused or suspected of a crime can be conducted.
3) Probable Cause
* Probable Cause: that quantity of facts and circumstances within the police officer’s knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime or that specific items related to criminal activity will be found at the particular place.
1) Spinelli v. US(1969): ConfidentialInformer supplied phone numbers and activity going on as well as residence address. Holding: Not enough reliability for probable cause Laid out a two prong test to determine the reliability of a confidential informant used to determine probable cause: The Test: 1)The application must set forth any underlying circumstances necessary to enable the magistrate independently to judge of the validity of the informant’s conclusion and; 2)The officers must support their claim that the informant is credible and the information is reliable. (Veracity Prong).