law school outline: criminal procedure


Criminal Procedure

  1. Standing?
  2. State action?
  3. Arrest

  1. Seizure

  1. Restraint of freedom by force

  1. Reasonable person didn�t believe he was free to leave or terminate encounter
  2. Does not include car chase.

  1. Submission to a show of authority (consent to arrest).
  2. Deadly force can be used to arrest fleeing felon who threatens death or serious bodily harm.

  1. Probable Cause
  2. Valid Warrant

  1. None required if:

  1. Felony arrest in public place, with probable cause
  2. Public area
  3. Exigent circumstances plus serious crime
  4. Consent
  5. Seizure of property (chattel)

  1. Warrant must state facts showing commission of crime and the accused�s responsibility in the crime.

  1. Exceptions (not considered arrest)

  1. Terry Stop: Investigatory stops (detainment), which only requires reasonable suspicion that criminal activity is afoot.

  1. Detain for a limited time, in the least intrusive manner possible. Probable cause not needed, but must have articulable reasonable suspicion of criminal involvement or dangerous suspect.
  2. Frisk for weapons permissible if officer reasonably feels in danger that suspect is armed, including of an automobile cab. Totality of circumstances considered. Outer confines of clothing only. Other things found during search for weapons can raise PC and be confiscated, so long as within bounds of search.

  1. Can't pat down just for drugs
  2. Balancing test used between officer�s safety vs. individual rights.

  1. Only allowed on the street - transport to PD station requires PC.

  1. Detention during lawful search.
  2. PD can approach people in public places to ask questions, ID, and ask for consent to search, so long as reasonable innocent person, considering the totality of the circumstances, understands he can refuse to cooperate without fearing prosecution and is not restrained by the police (outside restraints, such as being on a bus, not a factor).
  3. Automobile

  1. Automobile stops only if reasonable belief that some law has been broken � not random license checks.
  2. Roadblocks (DUI, registration) ok if every car is checked or by some neutral articulable standard. Doesn't require suspicion.  No discretion allowed.
  3. Stop of every car for illegal aliens is legal near borders (4th Amendment rights are nearly eliminated at borders and points of entry), but no unlawful searches (dog sniff ok).  Roving patrols ok, but can stop only with reasonable suspicion.
  4. PD can make person in car exit car.

  1. Search

  1. Defendant must have had reasonable and legitimate (objective) actual expectation (subjective) of privacy, determined by totality of circumstances, otherwise no protections.

  1. Factors

  1. Degree of intrusion
  2. Nature of property interest

  1. Curtilage of home is protected
  2. Guests have privacy interest in the place they are staying

  1. Example: Things open to public and TPs (voluntary disclosure) are not private, including plain view, telephone numbers dialed, bank statements, open fields, handwriting, uncovered backyard, views from public airspace, luggage odors, trash, misplaced confidence and assumption of the risk in communications with other parties.  Controlled delivery of items in package which was previously opened is ok.  Devices to enhance senses.   Most observations from legal and reasonable vantaqge points

  1. Probable cause
  2. Valid warrant

  1. Exceptions (reasonableness still required)

  1. Terry search (above). A: Incident and contemporary to lawful arrest.

  1. Scope: Limited to that justified by circumstances. Person and that within his immediate control ok, plus a cursory sweep. Beyond that, PD must have reasonable and articulable suspicion of danger.
  2. Detention of occupants is fine during an arrest. Search may not last any longer than is necessary to effectuate the arrest. 
  3. Car search ok, but only accessable areas.
C: Consent (no duty to notify of rights).

  1. Scope of search limited to scope of consent.
  2. PD must reasonably believe D has legal, physical and mental capacity to consent (mutual use and joint control).
  3. Police may not use coercion, implicit or explicit. Voluntariness and non-coersion examined from totality of circumstances.  Knowing waiver is not required.
A: Automobile searches: Police may search entire automobile and containers within where they have probable cause to believe contraband or evidence is contained.

  1. Rational: Car can be immediately moved. If circumstances are such that the car won�t be moved, warrant required. Less expectation of privacy because of state regulation, plain view.
  2. Search of containers and packages in car which belong to car occupants if ok so long as what they are looking for could be in the package (broad).
  3. No warrant required for impounded car, but warrant required for impounded luggage and other personal affects.
  4. Includes mobile homes, due to mobility.
P: Plain view seizures

  1. Original intrusion must have been lawful
  2. Incriminating nature of evidence must be apparent without any necessity for further investigation or search
I: Non-investigatory inventory of automobile when impounded, or of person when put in jail. Scope limited to accessible areas (not door panels), but can force the lock open. Trunk and containersok. Must be subject to some standard police procedure.  E: Exigent circumstances, including hot pursuit or destruction of evidence. N/A if underlying offense is extremely minor. Examine officer�s knowledge at the time � not hindsight. Administrative search requires balancing of interests (reasonableness)

  1. Search of car that has been impounded
  2. Medal detectors at airport
  3. Public school: No warrant, no probable cause, just reasonable suspicion that the rules of the school have been broken. Allows full search.
  4. Drug tests of railroad and customs employees and pilots ok because warrant requirement would not help any, and important government interest (safety-sensitive jobs), despite no suspicion. Interscholastic athlete testing is ok, but not any other school students. Privacy interest minimal, important government interest furthered.
  5. PC not required, nor is warrant
  6. Full search ok.
  7. Searches by admin agency (code inspectors, etc.) does require warrant, unless it is a condition of public benefits or heavily restricted industry.  PC is requried, but a low degree.
  8. Also applies to government work places, where search is done by supervisor.
Probable Cause

  1. Definition:  Reasonably trustworthy information within officer�s knowledge sufficient to warrant a reasonable person (objective) with officer�s special training to believe that ...

  1. Arrest:  ... a crime has been committed and the D committed the crime.
  2. Search: ... seizable evidence will be found in the place to be searched.

  1. Reasonableness

  1. If unreasonable, then 4th Amendment is violated
  2. Based on quality of the information.

  1. If based on confidentiality (anonymous informer), must objectively consider totality of circumstances (includes basis, reliability, veracity, corroboration).  Neutral magistrate required.
  2. Warrent request

  1. Probable Cause
  2. Oath or affirmation
  3. Neutral / detached magistrate
  4. Partiular description of the place

  1. Search is limited to the area specified in the warrant and places where the items described may be located.

  1. Particular description of the thing

  1. Instrumentalities, fruits, and evidence of the crime
  2. Contraband

  1. Is it too broad? 
  2. Timely execution?
  3. Supporting facts (not just allegations)
  4. Must be reasonable
  5. Execution requires knock and announce, unless exigencies.
Exclusionary rule

  1. Prohibits use of items obtained as a result of unreasonable (shocks the consciousness) searches and seizures as evidence against criminal D .

  1. Found in 4th and 14th.
  2. Goal is to deter future unlawful conduct, not to repair past conduct. Can�t deter reasonable law enforcement activity.
  3. Can be used for impeachment of D.
  4. N/A to grand jury or civil proceedings.

  1. Exceptions

  1. Reasonable reliance on warrant with good faith (no dishonesty, recklessness, facially deficient, or complete lack of PC), if warrant issued by detached and neutral magistrate.
  2. Evidence from source independent of illegality.
  3. Showing by preponderance of evidence that PD would have eventually found the evidence.
  4. Attenuation:  Evidence was obtained a period of time after the illegality occurred, where the time delay is enough to purge the taint.  Indirect link between evidence and illegality.

  1. Standing

  1. Suppression can be argued only by those whose rights were violated by the search itself.
  2. Test is a "legitimate and reasonable expectation of privacy" in the area searched.
  3. If PD bad faith, anyone has standing.
Constitutional Protections: Attorney / Silence

  1. Requirements

  1. Incriminating, testimonial statement
  2. Which can be used against D (no immunity, SOL).
  3. Only natural person can use
  4. Must be affirmatively claimed at time of questioning
  5. Subject to harmless error test
  6. No penalty attached for use of privilege in criminal case.

  1. Criminal D has right not to take the stand, without penalty. Civil D does not have that right, but can claim 5th. D who takes the stand waives privilege re: substance of testimony.
  2. Fourteenth Amendment Due Process Protections

  1. No longer really a factor because of Miranda.
  2. Focuses on voluntariness of statement, taking all circumstances into account, including:

  1. Length (36 hours is coersive)
  2. Number of officers questioning (pressure of atmosphere)
  3. Age, education of D
  4. Characteristics of D

  1. Must be free from governmental coersion � complete mental freedom, viewed subjectively by D.

  1. Effect of government promises

  1. Identifications / Line-Up / Photo spread

  1. D has the right to request a lineup.
  2. Reliability is the main factor.

  1. Opportunity to view
  2. Degree of attention
  3. Accuracy of description
  4. Level of certainty
  5. Time lapse between crime and confrontation.

  1. Mainly applies to pretrial ID�s because Right to Counsel does not (only applies to post-arraignment identifications).
  2. ID must not be unnecessarily suggestive or conducive to irreparable mistaken identification such as to deprive D of due process of law.

  1. Showing suspects singly, rather than in a lineup, unless exigent circumstances.
  2. Other people in lineup must have similar characteristics, and attorney can demand that.

  1. Courtroom ID must not be based upon pretrial ID in violation of 14th Amendment.
  2. D has right to attorney for post-charge line-ups.

  1. Right to Counsel

  1. 6th Amendment right attaches after any adversary judicial proceeding (not pre-charge and not preliminary hearing to determine PC).

  1. Miranda imposes right when in custody and being questioned (via 5th Amendment).
  2. Applies for all offenses for which imprisonment is the punishment, and for non-discretionary appeals.
  3. Does not apply for pre-arraignment lineups, but does apply for post-arraignment lineups.

  1. Interrogation or line-up cannot take place once right is invoked without attorney�s presence, or until D initiates conversation (waiver).

  1. Heavy burden on p show knowing and intelligent waiver.

  1. Offense specific: Person charged with multiple offenses must involke privilege for each offense.
  2. Waiver of counsel at trial must be proven by:

  1. Accused was offered counsel
  2. Intelligently and understandably rejected the offer

  1. Knowing dangers and disadvantages of self-representation
  2. Apprehends nature of charges, offenses included within them
  3. Allowable punishments
  4. Possible defenses

  1. Effective assistance violated when:

  1. Deficient performance measured against objective standard of reasonableness; and
  2. D prejudiced, and but for counsel�s deficient performance, result of proceeding probably would have been different.

  1. Miranda / Self Incrimination

  1. Prosecution has burden of showing that D was warned, although the warning doesn�t have to explicitly list the rights (although in practice it works that way).

  1. D �s subjective knowledge of rights is not relevent � even an attorney or repeat arrestee must be warned.

  1. Warning required if person is:

  1. Arrested, seized, in custody, or otherwise objectively deprived of freedom in significant way, D truly unable to leave after questioning, regardless of seriousness of offense
  2. Being interrogated by police

  1. Initiated by police; or
  2. When police officers reasonably should have known that their actions would elicit an incriminating response. Doesn�t apply to volunteered statements, or when D doesn�t know he is being interrogated by PD (i.e. undercover or jailhouse plant, because coercive nature is lacking and D spoke at own peril).

  1. Knowing, affirmative & intelligent waiver

  1. Subject to subsequent revocation.
  2. Viewed in light of all the circumstances
  3. Waiver can occur after invocation of rights
  4. Silence is not a waiver

  1. Rights

  1. Silence (5th Amendment)

  1. Once invoked, all interrogation must cease, and can resume only after a period of time, with new Miranda warnings, and about a different crime.
  2. Post-arrest silence cannot be used at trial; but pre-arrest silence may be.
  3. Does not include use of body as evidence (i.e. blood samples or finger prints)
  4. Anything said can and will be used against them.

  1. Right to provided counsel during questioning, upon request.

  1. Found in 5th Amendment
  2. Apples to all offenses, and not offense-specific.
  3. Request must be unambiguous.
  4. Interrogation must stop until counsel is provided, or until D reinitiates conversation and waives after re-warning.

  1. Exceptions

  1. Exigent circumstances (question reasonably prompted by public or officer safety)
  2. Car stop, unless reasonable person would believe they are in custody (depends on number of cops, circumstances, cuffs, etc). Reason is it is in public, minimal intrusion, similar to Terry stop.
  3. Confession in violation of Miranda can be used to impeach D when he takes the stand. Involuntary confession or one before warnings given cannot be used for any purpose.
  4. Grand jury testimony
  5. Impeachment of D
 

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