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

CRIMINAL PROCEDURE I
OUTLINE

4 Main Topics
ENTRAPMENT
SEARCHES AND SEIZURES
CONFESSIONS
IDENTIFICATIONS
ENTRAPMENT

– A JURY QUESTION
– AN AFFIRMATIVE DEFENSE
– APPLICABLE ONLY TO GOV ACTIVITY

NOT A CONSTITUTIONAL ISSUE
– T/F EACH JURISDICTION MAY ENLIST ITS OWN STANDARD

Gov conduct must be egregious/outrageous = due process violation

Twigg
Last ct to recognize due process violation for entrapment.

What is not due process…
– Marriage sham
– Sex

We’ll study the federal test (MI uses different one).
BURDEN INITIALLY UPON D TO DEMONSTRATE UNLAWFUL GOV INDUCEMENT
THEN
– BURDEN SHIFT TO GOV TO PROVE
o D predisposed before the intervention (subjective test)
§ Measured at time of first government involvement
· 1-hesitation/eagerness
· 2-inducement (appeals to legit motive)
· 3-D capable of committing the crime

U.S. v. Russell
FACTS: D contented that conviction for narcotics manufacture should be overturned b/c officer’s supply essential ingredient. He tried to use objective test, but not recognized (is in MI).
Objective Test
1-excessive government involvement
or
2-would a law abiding person be induced to commit the crime
jury decision, test is hard to win because they did the crime.

Sorrels
During prohibition, old war buddy claims to need drink (appeal to legitimate interest?)
COURT’S FIRST RECOGNITION AND APPLICATION OF ENTRAPMENT TEST
AGENT TWICE REFUSED B/F D GAVE HIM DRINK
TURNED FOCUS TO D’S MENTAL STATE (PREDISPOSITION)

Sherman
P knew D was recovering heroin addict and told him his wife was going through withdrawal and desperately needed a fix.
CT REAFFIRMS SORELLS

Jacobson v. United States
D claimed Gov entrapped him into violating child porn law, gov did not prove disposition not product of years of Gov targeting. By waving banner of individual rights and disparaging efforts to restrict pornography, Gov excited Jacobson’s interest.
HELD: Where gov actions create D’s disposition to commit crime, and then gov suggests crime that D commits, it is entrapment.

1-Look to the first contact
2-Could D have committed crime w/o government’s help

Positional element-when gov quest for convictions leads to apprehension of otherwise law-abiding citizen who, if left to own devices, likely would have never run afoul of law, courts should intervene. Moran likes this element

Hollingsworth
Gov may not, in trying to induce target of sting to commit crime, confront him w/circumstances diff from ordinary/typical circumstances of private inducement. All that must be shown to establish predisposition and thus defeat defense is willingness to violate law w/o extraordinary inducements; however not guilty, because Ds did not have capacity to be international drug launderers.

Knox
what D would have done had the gov not been involved.

ENTRAPMENT PROBLEMS
(CH. 5 # 2 & 3)

2)THE SPORT CAUGHT FISH CASE
– MEASURE PREDISPOSITION WHEN GOV’T FIRST CALLED RESTAURANT
o PREDISPOSED T/F DEFENSE DOES NOT WORK
3) POLICE PICK UP HITCHHIKER AND PAY $$$ FOR Rx PILLS
– ENTRAPMENT B/C

ence obtained as result of unlawful S & S nevertheless admissible at trial if officers had reasonable, good faith belief that they acted pursuant to legal authority. Must be objectively reasonable, whether reasonably well-trained officer would have known that search was illegal despite magistrate’s authorization.
– It’s not exactly what officer knew, whether a reasonably well-trained officer knows
– False info must mislead magistrate, also must materially undermine warrant.

If mistake is in form of warrant then it should still be O.K. MA v. Sheppard

Arizona v Evans
NO NEED TO DETER CLERKS

If you can point to officer who screwed up you can go to inner circle and exclusionary rule should apply.

MAPP V. OHIO
HELD: EXCLUSIONARY RULE APPLIES TO STATE CT, AS WELL AS FEDERAL
– USE OF 4TH AM AND 14TH

EXCLUSIONARY RULE PROBLEMS
(CH 7 #22-23)
22) POLICE SEEK WARRANT BASED ON ANONYMOUS TIP. WARRANT ISSUES. SUPPRESSION?
– YES, B/C WARRANT DID NOT ISSUE ON P/C
– OFFICER COULD NOT OF HAD P/C B/C NO CORROBORATION EVEN THOUGH OFFICER SOUGHT IT OUT
23) D CHARGED W/POSSESSION OF COKE W/I to D. WARRANT ISSUED ON MIS-ID OF SOURCE. SUPPRESSION?
– YES, B/C POLICE LIED TO OBTAIN WARRANT

PROTECTED INTERESTS