Select Page

Criminal Procedure
Wayne State University Law School
Moran, David A.


4 Topics – Limits on Police Power:
(1) Entrapment
(2) Search & Seizure
(3) Confession Law
(4) Identification (of criminals)
è What evidence gets excluded if these doctrines are violated?


4th Amendment – Right against Unlawful Searches & Seizures
5th Amendment – Self-Incrimination Clause
6th Amendment – Right to Counsel

Who were these provisions initially intended to limit?

Federal government
So, why now do we apply them also to state governments?

o 14th Amendment à Under the Due Process Clause, the Bill of Rights also apply to state government
§ “Nor shall any State deprive any person of life, liberty, or property without due process of law.”

What is DUE PROCESS??? èAny of the rights granted by the Bill of Rights

Bill of Rights: First eight amendments to the Constitution of the United States. The states are bound to follow these rules based on the Due Process Clause of the Fourteenth Amendment.
Two exceptions:
1) Right to indictment by a grand jury
2) Right to reasonable bail.

14th Amend. incorporates Bill of Rights against the States
ð Selective Incorporation- the 14th Amendment does not necessarily incorporate ALL of the Bill of Rights against the States (ex – grand jury indictment) – Court has slowly interpreted each right to determine if incorporated against the States or not


Facts: Police raided man’s house; he swallowed the 2 pills of morphine by his bed; Police forced him to get stomach pumped

Holding: Court found that the police action was a violation of Due Process è Action here “Shocks the Conscience”

Shocks The Conscience Test:

1. Shocks the conscience” test: Due process requires evidence to be obtained in a manner that does not offend one’s “sense of justice”.

2. Body searches invoke privacy rights and their “reasonableness” requires a balancing between the public’s need for the evidence against the gravity of the invasions.

At this point, Due Process for the States meant 2 things:
(1) Selective incorporation of the Bill of Rights
(2) Right against “Shockingly Offensive” State Conduct [Substantive Due Process]

Note – under that 2nd prong, even if the police conduct does not violate a particular amendment of the Bill of Rights, it is still unlawful if it “shocks the conscience”



Drawing his blood was not a violation of Due Process
Court asked: 1) Did the police conduct violate the Bill of Rights?
§ Specifically asking, did the police violate the defendant’s rights under the 4th Amend, as incorporated against the stat

ted him in his preexisting plan to manufacture the drug.
· He clearly was predisposed to committing the crime, and his failure to rebut this precludes his assertion of the entrapment defense.

Predisposition: Defendant’s inclination to engage in the illegal activity for which he has been charged.

1. Entrapment applies when government agents act improperly with respect to the defendant. It can be raised either as a defense at trial or as a pretrial motion thereby barring prosecution of the entrapped party. United States v. Russell

2. Conduct may be so outrageous in some circumstances to constitute a violation of due process. Jurisdictions employ either a subjective or an objective test.

a) Subjective Test: entrapment is proved if a government agent implants in the mind of an innocent person the disposition to commit the offense and induces its commission so that the government may prosecute. Sherman v. United States.

b) Objective Test: entrapment is proved if police conduct falls below commonly accepted standards for the proper use of government power.