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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 APPEALING TO A LEGIT OBJECTIVE

SEARCHES AND SEIZURES
FOURTH AMENDMENT
–         2 CLAUSES
o       REASONABLENESS CLAUSE
§         “THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS AGAINST UNREASONABLE SEARCHES AND SEIZURES SHALL NOT BE VIOLATED…”
·        UNIVERSAL- APPLIES TO ALL SEARCHES AND SEIZURES 
o       WARRANTS CLAUSE
§         “… 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.”
·        A LAUNDRY LIST OF REQUIREMENTS FOR WARRANTS
·        DOES NOT SAY WHEN A WARRANT IS REQUIRED
o       A LARGE # OF SEARCHES AND SEIZURES ARE RIGHTFULLY CONDUCTED W/O A WARRANT
THE EXCLUSIONARY RULE
–         NOT IN LANGUAGE OF 4TH
–         MERELY A REMEDY TO 4TH AMEND VIOLATION

Wolf v. Colorado
Under CO law, evidence seized in unreasonable s & s admissible against accused. In fed ct, evidence would’ve been inadmissible under exclusionary rule as being in violation of D’s 4th Am rights.

US v. Leon
4th Amendment does not require exclusion of evidence seized pursuant to facially valid warrant where police have acted in good faith (POLICE ACTING ON WARRANT). Rule is imposed to deter police conduct which denies the defendant his constitutional rights. Only for warrants.

Legislature do not need to be deterred Illinois v. Krull

Not in civil cases where there is no deterrence effect.

What can you do if think that illegal search is being conducted

1-SELF HELP
Use gun, not allowed anymore (MI yes)
2-LAWSUIT
Sue for trespass, must show actions unreasonable, shallow pocket problems, sue city instead (must show scope of employment or city encourages officer to act a certain way)

What else might deter?
criminal prosecution (Butsen and Nevers)

GOOD FAITH EXCEPTION
–         Exception to rule that evidence 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
Katz test in the (Harlan) concurrence
1-subjective expectation of privacy
2-that society recognizes as reasonable

Katz v. United States
Katz arrested/convicted for transmitting betting information by tele to another state in violation of fed stat. Recordings made by attaching recording/listening device to outside of phone booth that Katz used to make his calls. 
HELD: Katz had subjective expectation of privacy that society ought be prepared to recognize as reasonable.

4th Amendment protects people, not places

California v. Greenwood
Suspecting D involved w/narcotics, police officer searched D’s garbage, which had been placed on the street for collection. 
HELD: Garbage left in pub space may be searched w/o warrant.

Some expectation of privacy remains even when material handed over to

efore Leon).

Magistrate must determine whether there is fair probability that contraband/evidence of crime will be found in particular place.
–         Same standard for arrest and search warrants.

Anonymous tip, w/o corroboration, insufficient to provide p/c.

GENERALLY:
–         Victims & Witnesses are presumptively reliable

Coolidge v. NH
HELD: Procedure by which state attorney general issue search warrants unconstitutional b/c magistrate not neutral and detached.
The neutral and detached magistrate requirement.
FRANKS V. DELAWARE
HELD: IF FALSE INFO ESSENTIAL/RELEVANT TO FINDING OF P/C WARRANT MUST BE DEEMED INVALID. OFFICER NEED NOT KNOW INFO FALSE. EVEN APPLIES IF RECKLESS DISREGARD FOR TRUTH.

Particular Description of the Place to Be Searched
4th Amendment requirement of particularity in description of place to be searched, enough if description such that officer w/search warrant can, w/reasonable effort ascertain/identify place intended.

If small objects in warrant, police can turn your house inside out. 

Once find all stuff in warrant they must STOP. 
Drug searches never really stop.  

Knock and Announce Requirement
Gives D opportunity to comply, e.g. Stanford Daily case, police searches not limited to those suspected of crime. 
Police shielded from requirement if knock and announce fear imminent destruction of evidence or it would be dangerous.

Richards v. Wisconsin
HELD: In order to justify “no knock” entry, police must have reasonable suspicion that knocking/announcing presence, under particular circumstances dangerous/futile, or inhibit effective investigation of crime.

People other than police who can be present at search
Wilson v. Layne
HELD: Anyone who aids in execution of warrant, allowed. Media not allowed. Sorry Cops TV show as of 1999 (violating the reasonableness of the 4th Amendment). Private parties most frequently get to come along to identify stolen property. 

SEIZURES


PLAIN VIEW SEIZURES
(Warrant exception)

1-officer must lawfully be in position to view and seizething.

2-evidence must be facially incriminating (p/c that it is evidence or contraband without manipulating it).

Arizona v. Hicks
HELD: What is seized must be incriminating. Plain view allowed if facially incriminating. Police cannot move something.

FELONY ARRESTS IN PUBLIC
United States v. Watson
D arrested w/o warrant by gov postal inspector who, upon information from reliable informant, had time to obtain arrest warrant for theft of credit cards from malls. 
HELD: Officer may arrest suspect w/o warrant for felony committed in his presence, as well as felony not committed in his presence if reasonable grounds for making the arrest.

4th Amendment does not say when police must obtain a warrant. Going back to 1791, we should assume that warrant requirement not required in some situations.