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

DUE PROCESS INCORPROATION
1)      Due Process Clause of the 14th Amendment does three things:
a)      Incorporates Rill of Rights to the States
b)      Prohibits shockingly offensive conduct (substantive due process)
c)      Procedural Due Process
2)      The 14th Amendment, Due Process Clause, applies the Bill of Rights to the States
a)      “nor shall any STATE deprive any person of life, liberty, or property without due process of law”
b)      up until 1868, when the 14th Amendment was ratified, the states could do anything to you.
3)      Selective Incorporation
a)      Not all of the rights in the Bill of Rights are Incorporated. (but most of them are)
b)      Rights in the Bill of Rights not incorporated to the states:
i)        Grand jury indictment (5th Amendment)
(1)   State law says that prosecutors can directly issue chargs
ii)       Quartering of soldiers (3rd Amendment)
iii)     Right to jury for civil trial (7th Amendment)
4)      Rochin v. CA
a)      Facts: Police come into his house, see pills on his nightstand, he then swallows them. The police then require the doctors to pump his stomach to get pills back.
b)      The court holds this is conduct that shocks the conscience
c)      Before applying the 14th amendment to the states using incorporation, the court used a process of conduct that was “shockingly offensive state conduct”
d)      This is vague, what is shocking to one justice may not be shocking to other justices
5)      Schmerber v. CA
a)      What is different about how this case is analyzed v. how Rochin was analyzed?
i)        In this case, the court uses probable cause under the test of the 4th Amendment
ii)       Instead of applying the shockingly offensive test, the court applied the 4th amendment to the states b/c it is now incorporated
iii)     How this court still asked even if it didn’t violate the Bill of Rights, is it still shockingly offensive
(1)   Substantive due processàshockingly offensive
(a)    Government conduct that doesn’t violate a provision of the Bill of Rights can still be prohibited because it is shockingly offensive. (substantive due process)
(b)   The US Supreme Court is rarely shocked
(c)    This court held no b/c here they are taking someone’s blood (instead of pumping stomach)
ENTRAPMENT
1)      Definition
a)      “I wouldn’t have done it, except for the fact that the government made me do it”
b)      Entrapment is an affirmative defense
2)      United States v. Russell
a)      Facts:
i)        Government supplied Russell with a chemical ingredient to make meth
b)      Mr. Russell’s claim was a substantive due process argument (shocking and oppressive)
c)      Substantive due process can be a constitutional entrapment claim and it is a losing claim
i)        Now all the D has left is an affirmative defense (no constitutional element)
d)      Holding: no entrapment
e)      Federal Test for Entrapment
i)        Sorrells test for predisposition to commit a crime
(1)   Predisposition to commit a crime=D would commit the crime regardless of the police getting involved
(a)    This is easy in Russell b/c Russell admitted he was predisposed—he had gotten the chemical from other sources before the government got on the scene and after the government was on the scene.
(b)   Easiest way for prosecutor to prove predisposition—he did it, he was willing to commit the crime!!!
(i)      If D approached the under cover officer
(ii)    If actually did it
f)        Since Russell cannot win the Sorrells Test he asks the court to adopt another test, one that he can win: The government involvement test (MI has government involvement test)
i)        Russell wants to show that that government was too involved in the crime
ii)       When a D says the he is a good person and the government made him do it and he is not predisposed to do it, D has opened the door to character evidence. Prosecutor can now admit prior bad acts (other criminal conduct in the ballpark)
(1)   If you are predisposed to buy pot, then you are more likely to be predisposed to by met too. Therefore, the prior bad act will be admitted.
3)      FOR THE REST OF THE COURSE WE FOCUS ON NON SUBSTNATIVE DUE PROCESS
4)      Jacobson v. US
a)      Was Jacobson predisposed to buy child porn?
i)        When government offer the porn why doesn’t this show predisposition?
(1)   For 2.5 years the government was trying to get him to buy it.
(2)   Important question: at what point was the D’s predisposition necessary?
(a)    D must be predisposed to commit the crime BEFORE governments contact
ii)       What is the significance of the 2.5 year length?
(1)   The investigation was cumulative over this period
(2)   The only source of Jacobson’s contact with child porn is the US government
(3)   The government was working on it to get him to buy this stuff
(a)    Sent letters with political overtones
iii)     Possession of this material was legal when Jacobson bought it
(1)   This doesn’t show predisposition b/c maybe if it was illegal then he wouldn’t have bough it.
(2)   It doesn’t show predisposition to commit a crime.
(3)   We can conclude he likes the materials, yet this doesn’t establish a predisposition to possess child porn when it is illegal.
b)      This case makes reference to Sorrells and Sherman
i)       Sorrells
(1)   An under cover agent pretended he had served in the same regiment in WWI and said he needed a drink. Eventually D said ok, for an old army buddy
(2)   The problem with this is that it would go beyond normal circumstances. The court is likely to be offended is the motive being offered for D to commit the crime something other than ordinary.
(a)    The government’s appeal to D must go to ordinary motives, not legitimate motives.
(b)   What are legitimate motives
(i)      Helping an old war buddy is a legitimate motive
(ii)    Saving a few bucks in not a legitimate motive
(iii)   Helping a fellow addict who is experimenting withdrawal is legitimate
(iv) Relieving pain is legitimate
ii)     Sherman
(1)   Undercover agent when to D and said his wife was going to withdrawal, and since D used to be a user, the agent asked him to please help b/c she was going crazy.
(2)   The undercover agent appealed to legitimate motives of D because he used to be a user
5)      Virtue Testing
a)      When the government randomly calls to see if you will commit the crime
b)      Courts have upheld virtue testing, however, often it is not economically feasible
6)      Positional Predisposition
a)      The argument that you are entrapped b/c you would have never been in this position unless the government approached you (Jacobson)
i)        “in their zeal to enforce the law (the government) may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the government may prosecute” (Jacobson pg. 417)
b)      Hollingsworth case
i)        A guy saw an ad in the magazine saying get rich quick. The government taught him everything about money laundering and he did it. This guy was not likely to get involved in money laundering without governmental aids. He would have no idea how to do it. He had none of the necessary contacts or stuff to do it.
c)      Knox case
i)        Police went to reverend whose church was heavily in debt. Undercover police said we known church is in debt, we can help you and sets up a money laundering scam. Here is another guy who would have never gotten involved in money laudering but fore the government getting involved
d)      Virus HYPO
i)        D offered money to smuggle virus on an airplane overseas
(1)   Does the positional predisposition test mean that the gov couldn’t offer this test
(a)    The government could run this scheme against some people if they had info that showed that these people smuggled something else
(2)   Does the amount of money offered matter
(a)    J. Breyer was getting at this in Gendroncase
(i)      If the gov is offering normal inducement then it is not entrapment
(ii)    If the government is offering extraordinary inducement they we start to move towards entrapment.
(b)   Entrapment requires that the government make the offer—it does not matter is another criminal makes a really enticing offer.
7)      REVIEW FOR ENTRAPMENT
a)      Two Different argument:
i)        Constitution—this argument fails
ii)      An affirmative defense—this is Jacobson predisposition test
8)      DEFENDANT PREDISPOSITION Test(what to take from Jacobson)
a)      D must be predisposed to commit the crime BEFORE government contact
i)        Factors:
(1)   D actually does it
(2)   D jumps at the chance immediately (predisposition is often proved by D’s eagerness)
(3)   D didn’t have to be persuaded.
b)      Is an appeal made to legitimate motives
c)      Concerned about targeting people who, by virtue of where they are in life, were never likely to commit a particular crime
i)        This is often called positional predisposition

SEARCH AND SEIZURE
1)      4TH Amendment
a)      “The right of people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures, shall not be violated, 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”
b)      Divided into two clauses:
i)        The first clause is the reasonable clause
(1)   Ends with word “violated”
(2)   Applies to all searches and seizures (says all must be reasonable)
ii)       The remainder of the 4th amendment is the warrant clause
(1)   Tells us what requirements have to be met before police can get a warrant
(2)   Supported by oath or affirmation (somebody has to swear to it)
(3)   Say what requirements are for a warrant
(a)    Doesn’t say when a warrant is required
c)      Applies equally between stuff (search) and arrests (seizure)
2)      Wolf v. Colorado (overruled by Mapp v. Ohio)
a)      Does a conviction by a state court deny the “due process of law” required by 14th Amendment, solely b/c evidence that was admitted at trial was obtained under circumstances which would have rendered it inadmissible if introduced in a federal court as applied in Weeks
i)        Weeks v. United States (discussed within)
(1)   evidence illegally seized cannot be used in court (this means federal court)
b)      The exclusionary rule exists to deter the police form illegal searches and seizures
i)        What are alternatives to the exclusionary rule (other ways to deter the police)?
(1)   Private law suits
(a)    This might fail b/c you would have to sue the police department and there is governmental immunity
(b)   To do this you must show what they did was a policy or custom of the police department (if you have a rogue officer it is not a policy)
(c)    Individual officer is probably judgment proof (no $$)
(d)   Court has created doctrine to prevent police officers form being sued all the time—qualified immunity
(i)      To sue an individual officer you have to show a massive violation
(e)    There may not be any damages—if police just look around and don’t mess anything up
(2)   Criminal prosecutions of police officers
(a)    Such prosecutions would break down the relationship between prosecutors and police officers
(3)   Discipline
(a)    Police get fired or punished—but police are not good at self-policing
(4)   Self Help
(a)    You have the right to physically resist the search or seizure
(i)      This is a bad idea
(ii)    The police will probably kill you
(iii)   If you do survive, then you have to be right and show that the officer was wrong. If you are wrong, then you will get nailed for resisting an officer too (a felony)
c)      Exclusionary Rule
i)        The exclusionary rule is a judicially created remedy
ii)       The exclusionary rule is not about the violation. 
iii)     The violation does not occur when the evidence is introduced by the prosecutor. The violation does occur when the search or seizure was made.
iv)     The 4th Amendment says nothing about the introduction of evidence in court
d)      Holding:
i)        In a prosecution in a State court for a State crime the 14th Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure
(1)   The court says frankly, we are not shocked by your due process argument
e)       Dissent
i)        Other alternative measures do not work. In the absence of an exclusionary rule of evidence, the 4th Amendment would have no effective sanction
3)      Mapp v. Ohio (exclusionary rule applies to State courts—overrules Wolf)
a)      Holding:
i)        All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.
(1)   This rule serves to deter police from unreasonable searches
(a)    The criminal goes free, but it is the law that sets him free
(b)   The government must observe its own laws
b)      How does the court analyze this case differently from Wolf
i)        The ratio of states with exclusionary rules changed (more states have them now)
(1)   The landscape changed
ii)       The view to constitutional rights as applied to the states also changed
(1)   The court now viewed the states and federal government equally susceptible to constitutional arguments
(2)   Remedy in federal court is same as remedy in state court
4)      The 4th Amendment requires the state to perform the unreasonable search or seizure for the exclusionary rule to apply (Burdeau v. McDowell)
a)      What if the government encouraged your neighbor (a regular citizen) to break in?
i)        Your neighbor was an agent of the government
ii)       Look for evidence of control, compensation.
iii)     At what point must the person be working for the government to have a 4th Amendment issue?
(1)   The point in which they are doing whatever it is
(2)   If they are working for the government already they are an agent
(3)   If they are working on their own initiative because they are going to go to the government then it is ok.
5)      United States v. Leon (Good Faith Exception)
a)      The magistrate made a mistake when he issued the warrant. The police officer reasonably relied on the warrant and made the arrest.
b)      Purpose of the exclusionary rule is to deter the police, NOT the magistrates
i)        Magistrates don’t need deterring b/c the court assumes the magistrate in unbiased
ii)       Police officers are biased, they receive accommodations, promotions, ect for arrests
iii)     Fundamental assumption of the court
(1)   Police—biased
(2)   Magistrate—unbiased
c)      Scott (page 132)
i)        Exclusionary rule does not apply to probation officers
ii)       They do not need the deterrent
d)      Illinois v. Krull
i)        Exclusionary rule does not apply to the legislatures
6)      Good Faith Exception
a)      Only applies in situations where the officers make a mistake when reasonably relying on a warrant.
b)      If the police arrest you without a warrant, they have to have probable cause…they cannot rely on the good faith exception without a warrant
c)      The good faith exception is a check and balance
i)        It encourages police to go ask a magistrate when unsure and get a warrant.
ii)       There is a social utility involved here
d)      This is an objective test
i)        It is what a reasonable officer would know… NOT what this officer knew
ii)       The officer must have the objective reasonable belief that he had a warrant based on probable cause
(1)   Example of strong indication no probable cause:
(a)    Surveillance on property for 2 days after an anonymous tip, and police saw nothing. He then submitted the affidavit of the anonymous caller. Tries to corroborate, but fails. If detective thought that anonymous tip alone was probable cause, he would have gone to magistrate right away. 
(b)   Prosecutor would argue that this officer is so thorough that he wanted to have everything before he went to the magistrate.
(c)    Suppose the officer did in fact know, the test is what a reasonable officer would know.
e)      Suppress is an appropriate remedy if the magistrate issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false expect for his reckless disregard for the truth.
i)        What would prosecutor say
(1)   While the facts were misstated, the magistrate was no mislead (Franks v. Delaware)
(2)   The magistrate was not misled, he was given a true set of facts (just not all of them), and most magistrates would issue a warrant on these facts
f)        REVIEW:
i)        Good faith exception
(1)   No exclusion if officer reasonably relies on a bad warrant
(2)   EXCEPT:
(a)   1. officer misleads magistrate with knowingly false info
(b)   2. warrant so obviously lacking probable cause, reasonable officer couldn’t rely on it
(c)    3. warrant so obviously defective, officer can’t reasonably rely on it.
g)      HYPOS
i)        Magistrates secretary types the wrong apartment number on the warrant. The officers search the correct apartment
(1)   Should the evidence be suppressed?
(a)    No. Massachusettes v. Shepard (a clerical mistake by the magistrate is ok)
(i)      Exclusionary rule deters only police
(ii)    In Shepard, they wanted a homicide warrant, but they got a contraband warrant. The judge said he would cross it out and fix it. The judge didn’t fix it correctly though. The police reasonably relied on it.
ii)       Police now search the apartment where there is no probable cause, b/c they search the apartment on the warrant (typo)
(1)   Prosecution would have argument b/c of Arizona v. Evans
(a)    The record showed there was a warrant b/c the secretary failed to fix the record. AS a result of the arrest (which was made b/c of the falsely shown record) they found drugs.
(

pens some drawers and then finds contraband?
i)        Gouled as cited in Lewis said that an undercover informant cannot go rummaging around
ii)      If you invite someone in who turns out to be an undercover agent, you take the risk that they will see or hear whatever they would see or hear if they were the real deal
(1)   You would expect a gas company worker to open closet door where gas main pipe is located, so if he finds cocaine there, then this is OK.
5)      Reconciling Hoffa, Lewis, and White with Katz
a)       Hoffa: was there a subjective expectation of privacy? Most likely yes
i)        Is there a difference between determining your friend is an undercover agent and if the government plants someone who is a stranger but undercover?
(1)   Hoffa doesn’t seem to think there is a difference
b)      Katz: talking on the phone to a guy who could be a rat. Mr. Katz is taking the risk that the guy on the other end of the phone is betraying him
i)        He assumes the risk that the person he is talking to could be a snitch, but he doesn’t assume the risk that others will hear
(1)   In Katz, the guy at the other end isn’t a rat, so Mr. Katz privacy should have been respected
c)      When you send a letter, you assume the risk that the person you sent it to will expose it, but you don’t assume the risk that the government will open the mail before it gets there.
6)      HYPO
a)      The guy in the next cell records the conversation between Charles and his wife. The guy in the next cell was an agent of the government. The govt asked him to record the conversation and gave him a tape recorder disguised as a radio
i)        Charles takes the risk that the guy in the next cell will snitch
ii)       Lopez (recorder)and On Lee (transmission device)
(1)   You also take the risk that the people who are going to snitch can record what you say
(2)   Both of these are reaffirmed as ok in White
iii)     It does not matter that your words were transmitted to the government directly or recorded.
iv)     Why would the govt prefer a recording?
(1)   You would have every word exactly as spoken. They won’t have to put him on the stand
(2)   Informants tend to be terrible witnesses—they are easy targets for defense attorneys
v)      Hudson v. Palmer
(1)   You don’t have an expectation of privacy in your jail cell
vi)     Weatherford v. Bursey
(1)   The right to counsel establishes no per se rule forbidding undercover agent to meet with a defendant’s counsel, however, he didn’t communicate any of this info to the prosecution. It would have violated the 6th Amendment right to counsel if the information made it to the prosecution. However, it wouldn’t violate the 4th Amendment because Mr. Weatherford was invited.
b)      Can the government turn your spouse into an informant?
i)        Yes. There is no limit to this…the government can turn anyone into a government informant. Trust no one—wife, mom, children
ii)       If your defense attorney is a rat, then it violates the 6th Amendment but not the 4th Amendment.
SUPERPROTECTED INTERESTS
1)      Are there interests that are super protected? (protected by another constitutional provision, so no search allowed even with warrant)
2)      Several potential sources of super protections:
a)      5th Amendment privilege against self incrimination
i)        they send your client a subpoena to come down to the grand jury to testify about your meth lab. You would tell your client to not testify against themselves. The 5th Amendment protects you from having to testify against yourself.
ii)       What if subpoena said please come down to the grand jury to bring down the records of your meth lab and a sample?
(1)   You can also plead the 5th here. It allows you to not have to bring physical evidence that would incriminate yourself
iii)     Why doesn’t if violate the 5th Amendment when the government gets a search warrant and gets evidence themselves
(1)   Because the government does the incrimination for you…the government seized your incriminating records
(2)   The 5th Amendment doesn’t prevent people from having search warrants served on them
iv)     Andresen v. Maryland
(1)   Andresen claimed that his papers were protected from being seized because the papers themselves had statements on them that he had made. (the papers had his own words, his own words are incriminating him)
(2)   The court rejects this argument
(a)    He is not being compelled to testify. When he made those statements, the govt was not compelling him…he did it voluntarily
(b)   The court rejected the earlier precedent that private papers were protected form being seized by a search warrant.
v)      We can conclude that the 5th Amendment provides NO superprotection!
b)      1st Amendment
i)        Zurcher v. Stanford Daily
(1)   Police can obtain a warrant to search a third person’s premises. A subpoena is easier to obtain than a search warrant, so a prosecutor will use a subpoena if it is possible
(2)   The fact that a third party is innocent in no way prevents the police from getting a search warrant.
(3)   Made the argument that the police search could interfere with the paper getting out. This is no a good argument.
(a)    All the 1st Amendment will get you is that the police are supposed to act with care when using a search warrant in a first amendment media to avoid seizing too much stuff or preventing info from being dispursed.
ii)       We can conclude that the 1st amendment provides NO superprotection (except form some extra care)
3)      What if anything is superprotected.
a)      Things within the attorney-client privilege
b)      Defense attorney’s files (NOT attorney’s office). There is no 6th Amendment privilege to having your tax lawyer or your divorce lawyer
i)        6th Amendment only protects criminal defense lawyer
SEARCH AND SEIZURE—PROBABLE CAUSE
1)      Warrantàprobable cause and warrant
2)      Warrant Exceptionàprobable cause
3)      Other Reasonable search/seizureàless than probable cause and no warrant required.
4)      Probable cause
a)      Arrest v. Search
i)        Probable cause for arrest
(1)   There must be a substantial probability that a crime has been committed and that the person to be arrested committed it
ii)       Probable cause for search:
(1)   There must be a substantial probability that certain items are the fruits, instrumentalities, or evidence of crime and that these items are presently found to be at a certain place.
b)      Definition according to Illinois v. Gates
i)        Probable cause to SEARCH
(1)   Using the totality of the circumstances is there a fair probability that there is evidence of a crime or contraband in that place?
(a)    Even though Pringle says we don’t use numbers, its around 50%
ii)       Probable cause to ARREST
(1)   Using the totality of the circumstances is there a fair probability that the defendant committed a crime
(2)   There must be probable cause before arrest
(a)    If once they get to the station (after arrest), the police find out more info…they cannot use the info to get probable cause…they have to have probable cause before the arrest
(3)   If there is no probable cause at the moment of arre