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Criminal Procedure
Wayne State University Law School
Dillof, Anthony M.

I.       DUE PROCESS INCORPORATION
A.    4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizers 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.
1.      4th Amend originally a limitation on power of the fed gov’t
2.      incorporation incorporates all Bill of Rights (4th, 5th, and 6th)
3.      but today state police also must abide by this b/c S Ct has incorporated 14th Amend in 1868 so that all provisions of Bill of rights are applicable to states as well: “nor shall any state deprive any person of life, liberty, or property without due process of law”
4.      only 7th Amend (right to jury trial) and 2nd (right to bear arms) and 3rd (right to quarter troops in homes) are not incorporated
5.      selective incorporation – certain provisions of Bill apply to states, but not all – every provision relating to crim law are incorporated
B.     Rochin v. California (33)
1.      swallowed capsules when cops busted in, pumped stomach by force
2.      state violated Rochin’s 14th amend rights b/c conduct was shocking to the conscience
3.      this shocks the conscience test was used before incorporation of 14th Amend
4.      Shocks the Conscience Test:
o       requires evidence to be obtained in manner that does not offend “sense of justice”
o       body searches invoke privacy rights and their “reasonableness” requires balancing btw public’s need for evidence against the gravity of the invasions
5.      so even if police conduct does not violate particular amendment, still unlawful if it “shocks the conscience”
C.     Schmerber v. California (35)
1.      unconscious in car accident, police draw blood, then use that to show he was drunk
2.      diff from Rochin: court not shocked here and also took into consideration that this was an emergency and also fact that evidence might be lost if they waited
3.      further, they also looked at interest of society here b/c drunk driving is such a hazard
4.      plus this was not an unreasonable search and seizure b/c didn’t violate any rights
D.    Sacramento v. Louis (37)
1.      injured during high speed police chase when he was on a motorcycle and crashed
2.      Louis loses his 4th Amend claim b/c he was not seized at the time of this accident, he was still fleeing
3.      so now go back and ask Rochin Q (shocks conscience?) and this does not shock
4.      shocking test is substantive due process and court almost never finds anything to be shocking today
E.     Due Process functions:
1.      Due Process incorporates almost all guarantees of Bill of Rights to states
2.      substantive due process (shocking stuff) – don’t use this anymore
3.      procedural due process (can’t take life, liberty, property without fair procedures)
F.      4TH AMENDMENT
1.      “right of people…unreasonable searches and seizures…violated” – reasonableness clause which applies to all searches and seizures
2.      “and no warrants shall issue…to be seized” – warrants clause
3.      majority of police activity do not require warrants

II.    EXCLUSIONARY RULE
A.    Weeks v. US (217)
1.      evidence seized in violation of 14 Amend only can’t be used in fed courts (during that time btw Weeks and Mapp was when incorporation happened)
2.      4th Amend bars use of evidence that came thru illegal search and seizure
3.      at the time, holding only applied to actions by fed gov’t – only later applied to states
4.      but many state courts didn’t agree with this and 14th didn’t say it applied to states
B.     Mapp v. Ohio (219)
1.      if police violate 4th amend as applies to states with 14th Amend in order to get evidence, that evidence cannot be used in criminal trial in state courts
2.      applying Weeks to states after incorporation (which applies 4th to states under 14th amendment
3.      this is 47 years after Weeks – during time btw Weeks and Mapp was when incorporation happened
4.      purpose of this holding was to encourage law enforcement to follow 4th Amend
C.     HYPO: Robbers come in and tell police Choey has lots of drugs
1.      violation of 4th amend doesn’t occur when private citizen
2.      if police where to tell Choey’s neighbors to go break in, there is clearly state action and violative
3.      private illegal searches don’t violate – can still use that evidence in court
D.    Leon v. US (224)
1.      Exclusionary Rule not a remedy to ∆ but rather a systemic remedy designed to make police obey a rule – aimed at deterring police from violating 4th Amend
2.      good faith exception: if police reasonably rely on warrant to do search but then find warrant had no probable cause evidence can still be used b/c judge’s fault
3.      key diff btw judges and police officers is that police do have interest in outcome of proceeding – they want them to go down b/c that’s how they advance in their career but judges are neutral so they don’t need deterrents
E.     Pennsylvania Board of Probation and Parole v. Scott (242)
1.      exclusionary rule doesn’t apply with probation officers b/c they already have knowledge they’re just checking up on you as opposed to regular police who are searching for crime – so evidence can be used in court
F.      Illinois v. Krull (238)
1.      leg don’t gain professional advantage in passing unconst laws so excl rule doesn’t apply to them b/c don’t need deterrent
2.      4th Amend does apply to the gov’t but not all gov’t actors just police and only where necessary to deter them from violating 4th Amend (only criminal cases and criminal forfeiture) – when police do violate 4th Amend and want to sue that evidence, info will be excluded to deter police from future violations
G.    US v. Janis (243)
1.      rule doesn’t apply in civil action b/c all police care about here is making arrests not lawsuits
2.      does apply to criminal forfeiture cases (where gov’t takes your property) b/c property has value and police get proceeds when they sell these goods
H.    INS v. Lopez-Mendoza (243)
1.      doesn’t apply to INS officers in immigration cases b/c no stake in the outcome
I.       Hudson (Supp. – Moran’s case)
1.      violation of rule, found drugs and a gun, evidence used in case – seems like there was a violation of excl rule
2.      inevitable discovery doctrine
3.      don’t need Ex rule as much as we used to b/c police are trained better and more ethical and professional (more respect of const rights)
4.      however, it’s b/c of Mapp v. OH that we have better police professionals
5.      doesn’t overrule Mapp or get rid of Ex Rule – this only applies to knock and announce situations
J.       CH 7 – PROBLEM 22
1.

lic to look thru garbage but not really sewage (so gross that don’t expect that to happen)
3.      situation where giving trash to 3rd party (garbage man) so lower expectation of privacy – like giving luggage to bellhop, car to valet parker, mail to mailman
E.     HYPO: brick of cocaine sitting in your window, reasonable expectation of privacy?
1.      you’re taking that risk that anybody walking down street could see brick
2.      no exp of privacy here – ppl could have binoculars, camera with lens
3.      Does it matter if your window is 800 feet from road? Maybe you’ll have a better case but really if you want exp of privacy just don’t put it in the window
F.      CH 1 – PROBLEM 6
1.      police suspect house is being used as drop house for drug traffickers, set up camera on top of power fence that looks over 10-foot fence behind house
2.      police could have flown over and seen activity in backyard which hurts his exp of privacy – any member of public could have seen this from helicopter
3.      ∆ argues he has reasonable exp of privacy – but side fence is only 6 ft tall so reasonable for ∆ to think ppl might look over fence and see what he was doing
4.      ∆ might argue that ppl sunbathe or have sex in backyard and wouldn’t want to be seen
G.    CH 1 – PROBLEM 7
1.      police trespassed onto farm out in open field, found drugs next to chicken coop
2.      Oliver v. US: police entry and examination of field is free of any 4th Amend restrains – court rules open fields doctrine not overruled by Katz
3.      when have open fields, no exp of privacy against trespassing
4.      Dunn: curtilage factors: land surrounding house that you expect to be private
5.      line btw curtilage and open field: proximity of area to home, within enclosure surrounding home, nature of use as to which area is put (used for intimate activities of home), steps taken to protect area from observation of passersby
6.      if court concludes coop is not curtilage, then it’s open field and 4th Amend doesn’t apply and no problem for police in going there
7.      but even still, police came on property and dug up ground to find drugs
o       similar to Bond, where groped luggage on bus and felt brick of meth which was violative b/c manipulating property
8.      officers also had dog that sniffed next to coop
o       Illinois v. Place: dog is limited in what he can do, not really a search, not high tech, this is ok
o       keeping luggage for 90 minutes for dogs to sniff is invasive
9.      if police had actually entered chicken coop, might change things because similar to entering place of business which is protected by 4th
H.    Rule: what expose to strangers is not protected (emails, phone calls, letters, checks)