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

Professor Moran – Winter 2006


Rights were deemed fundamental and thus selectively incorporated through:
–         14th Amendment (due process)
o       “…nor shall any State deprive any person of life, liberty or property without due process of law.” (1868)
o       Due process = shocking to the conscience (prior to incorporation) = Substantive due process
§         Rochin: pumping of D’s stomach was unconstitutional b/c it shocks the conscience.

Bill of Rights Incorporated Against the States:
–         4th Amendment (search and seizure)
–         5th amendment (privilege)
o       the right to be indicted by a GJ for a felony does not apply to the states
–         6th amendment (right to counsel)
–         1st amendment (freedom of speech)

àAfter incorporation, these amendments can be applied w/o arguing substantive due process. See Breithaupt v. Abram & Schmerber v. CA, extraction of bodily fluids didn’t violate 5th or 4th amendment (b/c PC and no testimony), nor did it shock the conscience.

Due Process Arguments:
Incorporates almost all Bill of Rights against states.
Substantive due process (police conduct is shocking to the conscience)(Cty of Sacramento v. Lewis: only argue if no protection under the bill of rights)
Procedural due process (states must have fair procedures)


Entrapment Arguments:
Substantive Due Process: government conduct was shocking (never succeeds)     Not shocking when…           Russell: govt supplied a hard to obtain key meth ingredient.          Hampton: govt created crime b/c no real buyer or seller.
Non-Constitutional (Affirmative) Defense: defendant was not predisposed to commit this kind of crime
(because non-constitutional, different states can set up different tests)
à Federal TEST (subjective): Is THIS D predisposed?

Entrapment Defenses Usually Fail Because:
Defendant did it à Predisposed     Russell: predisposed b/c already engaged in ongoing meth operation     Hampton: predisposed b/c willing drug dealer before govt contact
Prosecution can bring in evidence of Defendant’s prior bad acts, bad reputation, etc. to show predisposition.

Predisposition: Defendant’s willingness to commit the criminal conduct is measured at the time of FIRST government contact. (Jacobson, Bare Boys mag)

Factors Supporting Entrapment:
Initial hesitation
Government appeals to a legitimate motive     Sorrels: D gives alcohol to “an old army buddy” during prohibition      Sherman: Recovered addict got heroin for “heroin addict going thru withdraw”    
Defendant not in position to commit the crime     Hollingsworth: answered govt’s get rich quick ad for laundering money     Knox: church pastor was not in position to commit money laundering
Extraordinary inducement (Gendron)

Jacobson Added to Entrapment Test:
Measure predisposition at time of first governmental contact.
Predisposition is to commit criminal conduct.
Was the D in position to commit the crime w/o government help?

Government behavior that is not entrapment:
–         Inducing defendants with sex
–         Sham marriage
–         Police woman walking up and down street as a pr

ALE à if it is the judge’s fault or a clerk’s fault, no police deterrence.
Applies when…
Massachusetts v. Sheppard: Judge hands officer warrant and says “go seize stolen      property”, but judge forgot to change warrant, which says to seize drugs.      Arizona v. Evans: officer relied on clerical error. Note: If officer should have known of
error, argue exclusion b/c deterrence rationale applies.
Does not apply when…
Groh v. Ramirez: officer made the error in preparing the warrant.

Exceptions to reasonable reliance:
Officer can’t reasonably rely on a warrant obtained with false information when the false information was necessary for the judge to find probable cause (Franks v. Delaware).
No objectively well-trained officer would have reasonably relied.
A warrant may be so facially deficient, i.e. failing to specify place to be searched or things to be seized, that executing officer can’t reasonably presume it is valid.(Groh v. Ramirez: warrant puts address in space for items to be seized)

Search and Seizure—Protected Interests

Katz Test: Government action is a search if (1) Defendant has an expectation of privacy (subjective), that (2) society regards as reasonable (objective).
à Everything outside the Katz test is not covered by the 4th amendment.