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

Crim Pro I – Moran
Class 1 : 8-29-06
I.                    Introduction to the Course: Incorporation
A.    4th Amendment, 5th Amendment: Self Incrimination Clause; 6th Amendment: Right to Counsel à great bulk of course
1.Originally limited Federal Government
2.Extended to States: 14th Amendment – Due Process Clause
3.Section 5 of 14th says: “…nor shall any state deprive any person of life, liberty, or property without due process of law” à key word: state
4.What is Due Process: Bill of Rights apply to states with exceptions à Selective Incorporation: Supreme court goes through and determines which ones shall apply
a.       Exception = Grand Jury indictment; 3rd Amendment (government can’t quarter soldiers in your home) – hasn’t come up
b.       Selective Incorporation=fairly new–previously Due Process of Law meant states had to provide counsel–it was basic fundamental fairness when someone was facing serious charges. Supreme Court decided what was fundamentality fair–subjective (Rochin v. California p. 40)
c.       Rochin v. California (1952)—US S. Ct., pg. 36: Rochin had swallowed pills and police wanted evidence à pumped his stomach to get. Court said violated Due Process – just really unfair. Vague notion of Due Process
d.       1950–1960s: started defining violation of Due Process = violation of Bill of Rights
e.       Fluid exactions (like blood) court decided if Constitutional violation: SHOCK THE CONSCIENCE
II.                 Summary: What you need to know
A.    These 3 Constitutional provisions apply to the states
B.     Due Process Clause has 3 roles:
1.Incorporates almost all Bill of Rights against States
2.Guarantees Fair Procedures: Notice and Hearing à Procedural Due Process (Note that there are 2 Due Process Clauses – 5th applies to Federal Government
C.     Does apply to outrageous Government conduct – that doesn’t fit within Bill of Rights à Substantive Due Process – just about a dead duck, court rarely finds, almost never works as an argument
Search and Seizure
[See Supplement for Quick Rules]  
4th Amendment:  
[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, [Warrant 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.”
 
I.                    4th Amendment: Introduction
A.     2 Clauses:
1.       Reasonableness Clause: Applies to ALL searches and seizures: universal
2.       Warrant Clause: How warrants work – need probable cause, supported by oath or affirmation, where with particularity, and what will be seized = laundry list of requirements – particular application for subset
a.       What it does not say: When a warrant is required – warrantless searches = majority of searches
B.     Application to Arrest: Important to recognize that the 4th Amendment applies to the arrests of people – secure in their persons… uses arrests and arrests words. Right not to be seized unreasonable and arrest warrants must be obtained according to the 4th Amendment – seizing a particular person.
II.                 Exclusionary Rule: – CHART Pg. 4 Gilberts
A.     Hypothetical: Come in to professor’s house and searched illegally and found marijuana. When were his 4th Amendment rights violated? At the time of the search, not at the time of the introduction of the evidence.
1.       Mapp v. Ohio (1961)—US S. Ct., pg. 219: Became clear that prosecutor cannot use evidence against you that was illegally seized. This rule was now applied to the states.
a.       Facts: The police forcibly entered the home of Mapp without a warrant. They found obscene books, pictures and photographs. D was convicted for the unlawful possession of these items, even though the police did not enter the house to find these things. 
b.       Holding: The 4th amendment requires state courts to exclude evidence obtained by unlawful searches and seizures. Wolf is expressly overruled. While some criminals may go free, there is a greater consideration here – the imperative of judicial integrity. Nothing can destroy a government more quickly than its failure to observe its own laws. If the government becomes a lawbreaker, it breeds contempt for law. State governments must observe the individuals right to privacy. 4th Amendment right to privacy revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. 
2.       Weeks(1914): illegally seized goods could not be introduced against you in federal court. – Mapp Rule for Federal CT. f
3.       Summary: If coming into house illegal violate

in most states (not Michigan) – cannot get out gun and say get out. Drawbacks: you better be right, how do you check this, extremely dangerous.
2.       Lawsuit: Why is that not enough? Sue for trespass – damages/remedy: what if they did not harm any of your property? 
a.       Sue Police Officers: Usually cannot get punitive damages from government. High standard for recovery – police officers behavior was clearly unreasonable – Qualified Immunity. Not much money – police officer = shallow pockets.
b.       Sue Government: Must show that the officer was acting within the scope of his employment.
3.       Internal Police Discipline: Police policing themselves – most do not have confidence that this will occur. Extreme cases = criminal prosecution.
4.       Good Faith Exception Hypothetical:
a.       Hypothetical: police officer thinks that she can search your car because she reasonably believes there are drugs in it; turns out this belief is wrong. So police officer made a reasonable mistake of the law; NO WARRANT
1)      Exclusionary Rule does applies because though she made a reasonable mistake of the law she did not rely on a warrant. The good faith exception only allows officers to make reasonable mistakes if they rely on a warrant. The good faith exception encourages the police to go ask a judge or magistrate—we want them to do this
2)      This would deter the officer—next time she will go to a neutral magistrate/judge
E.      Circle of 4th amendment violations – small application of Exclusionary Rule:
1.       Only applies in criminal cases
2.       Only involving police
3.       Applies in forfeiture cases: police have a stake in forfeiture cases – police department have financial stake.
4.       Principle: deterrent factor for police – so exclude only in cases where police would care
F.      Exclusionary Rule does NOT apply: 
Non-criminal, non-forfeiture actions