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Criminal Procedure: Investigation
Wayne State University Law School
Pagac, Christine

OUTLINE Crim Pro I
Due Process Incorporation (p 24-33 & sup 4-13)
I.                    Sources of Criminal Procedure Law
A.      The “Ordered Liberty” – “Fundamental Fairness,” “Total Incorporation,” and “Selective Incorporation” Theories
Want incorporation to protect rights that states might not otherwise protect
Powel v. Al – Fundamental right to counsel in capital cases (due process)
Duncan v. La – 6th amendment right to counsel applies to the states via the 14th amendment. What really matters is not whether the right is found in the Bill of Rights, but whether it is deemed to be fundamental
Now pretty much every right has been incorporated.  Most recently was the 2nd amendment via McDonald v. c/o Chicago
·         Unanimous jury trial NOT incorporated (LA, OR don’t require unanimity)
·         Charge by indictment NOT incorporated
B.      The Problem of Bodily Extractions: Another Look at the “Due Process” and “Selective Incorporation” Approaches
Rochin v. Cali – Stomach pumping NOT allowed – It shocks the conscience (it’s brutal and violent) and is too much like a forced confession
Breithaupt v. Abram & Schmerber v. Cali – Blood tests ARE allowed (because that’s not like a forced confession)
C.      Is There a Due Process Right to Technology that Might Establish One’ Innocence?
DA’s Office v. Osborne – There is NO Constitutional right to post conviction DNA testing. Because people get less protection of their liberty interests once they are convicted. Other remedies are available without creating a federal Constitutional right (ie, state statutes and Constitutions) – the Federal Courts don’t want to interfere with what the legislature is doing.
Note: Many DNA exonerations come to defendant’s who initially gave (false) confessions.
Skinner v. Switzer (Oct. 2010, not in case book) – DNA existed at the time of trial, the defendant begged the lawyer to have it tested, it was not tested, TX law won’t allow new testing if the testing was available at the time of trial.
Habeus time limit is 1 year (or 1 year+ 90 days) VS. a §1983 claim which is timeless
Search and Seizure – The Exclusionary Rule (p 218-234, 236-237, 239-240, 248-254)
I.                    Arrest, Search, and Seizure
A.      The Exclusionary Rule (p218) – arises out of the 4th Amendment… which doesn’t actually say that illegally seized evidence can’t be used in court. Purpose is to deter police misconduct
Weeks v. US (1916) – Illegally seized evidence cannot be used in federal court
Mapp v. OH (1961) – Illegally seized evidence cannot be used in state court… The Exclusionary rule is incorporated to the states. Overrules Wolf.
Wolf v. CO (1949) – the 14th Amendment did not incorporate the exclusionary rule to the states… THIS IS NO LONGER GOOD LAW
US v. Leon – good faith exception: the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds to believe that the warrant was properly issued. NO exclusion of evidence when the good faith exception applies.
·         Evidence is allowed in if the violation of the 4th amendment was done in good faith reliance on a subsequently invalidated search warrant (because of lack of PC)
·         Exception applies when the judge or magistrate makes the mistake in issuing the warrant (NOT when cop makes warrantless search in mistaken belief that a warrant is not req’d)
·         The exclusionary rule is designed to DETER law enforcement (not the judge issuing the warrant… judges won’t be deterred from making wrong decisions by evidence suppression. Plus, judges are supposed to be neutral, not wanting convictions like the cops do.)
·         The warrant must state objects to be seized with specificity. “Seize all evidence of a crime” is not good enough because a reasonably well trained officer would know this is invalid (objective test, so ev would be excluded) Groh v. Ramirez
o   If it says “seize all evidence” and the magistrate verbally says specifically, seize drug evidence (appropriately limiting the warrant) then that’s okay, and any drug evidence seized is NOT excluded
If a cop knows that probable cause is lacking, submits an affidavit for a warrant anyways, and GETS the warrant (so the judge screwed up and issued the warrant without sufficient probable cause) à the cop CAN rely on the good faith exception to get the seized evidence in! The test for reasonable reliance on the warrant is an OBJECTIVE one, so even if the cop knew probable cause was lacking, the question is “would a reasonably trained officer have known?”
·         But!! Knowingly misleading the judge to get the warrant DOES = exclusion of evidence (if the false facts were necessary to the warrant issuance)
 
Hudson v. MI – (Wayne county case! Hudson’s rep taught at Wayne Law!) NOT ALL 4th amendment violations must = Exclusion of evidence
When police arrived to execute a search warrant for drugs and firearms at defendant's home, they announced their presence but waited only a short time before turning the knob of the unlocked front door and entering the home. Police discovered large quantities of drugs and a loaded gun.
The State conceded that the entry was a violation of the “knock and announce” rule. Cops knocked and announced, but then entered without waiting the appropriate amount of time.
The Court determined that the exclusionary rule was inapplicable and suppression of the evidence was not warranted because (1) violation of the “knock-and-announce” rule did not require the suppression of all evidence found

à cops need a warrant to tap a phone booth (also, eavesdropping into convos in a private phone booth violates the 1st amendment)
·         If someone from the general public could be there and the police are not using tech enhancements, then D is pretty much screwed.
·         Cops can look in the window and see pot without a 4th amendment violation
·         Cops can look from across the street with binoculars (or with a magnifier camera) without a 4th amendment violation
·         If cops enter the property without a warrant and look around (on the curtilage) it IS a search and can be a Katz violation. (BUT not if they are far enough away from the property to be in the “open fields”, then there’s no Katz violation)
·         Superman, seeing thru walls technology, DOES amount to a search (and so can raise 4th amendment problems)
o   General public use of technology rule
o   Use technology to see what could not otherwise be obtained without physical entry (intrusion)
Kyllo v. US – the police can only use sense enhancers that are accessible to the general public. Use of thermal imaging amounted to a “search” of the home.
US v. Place – holding luggage for 90 minutes to wait for drug dogs… Sniffing by drug dogs does NOT amount to a “search” for 4th amendment purposes
Soldal v. Cook County – cops hauled off a motor home… seizures of property are subject to the 4th amendment even though no “search” occurred.
Cali v. Greenwood – No privacy interest in your trash
When you mail something, there is a lowered expectation of privacy to the inside; and the outer portion of your mail (the envelope) has NO expectation of privacy.
Luggage – loose some but not all of your expectation of privacy.
Cell phone records – no expectation of privacy once you provide your dialed numbers to the Company (Smith v. MD)
·         You have expectation of privacy in the conversation’s CONTENT, but not the numbers dialed, when dialed, frequency, etc.
·         Cops can check your phone records, bank records, etc, without a warrant
See v. City of Seattle – business property IS protected under the 4th amendment
Dow Chemical v. US – aerial photography of a chemical co’s industrial complex is NOT a 4th amendment search – cops were in PUBLIC airspace