Criminal Procedure

4th Amendment Flowchart: Search and Seizure

Was there a search
a.
Search (Katz/Harlan Test): (1) a subjective manifestation of privacy and (2) an interest society recognizes as reasonable.
i.
Protected:

Persons (body);

Houses (hotel rooms)

o
Includes Curtilage

Test: PROXIMITY of the area, AREA inside gate=curtilage; outside gate=outside curtilage, NATURE of use, and STEPS taken to protect the area
from observation

Papers; and,

Effects (wearing/carrying/cars/purses)
ii.
NOT Protected: public/nature, third party dissemination (account records (banks), public airspace, garbage (curbside), odors (emanating from car/luggage),
open fields (in or across)
iii.
Public Use: Searches are presumptively unreasonable when a device not in public use is used to explore details of home that could not have been known
without physical intrusion (thermal sensor)
iv.
GPS: Using beeper to monitor car on public highway is not search (but too long of duration may be). Beeper inside home and revealing information about
interior of home is a search. GPS tracking cars movement is search.
v.
Dog Sniff: Dog sniffs at traffic stops are permissible, provided the sniff does not prolong the stop unreasonably. Dog sniff at home is a search.
b.
If no search, then no fourth amendment violation.
II.
Was there a valid warrant
a.
Valid warrant has: (1) good faith by a law enforcement officer; (2) based on reliable information showing probable cause; (3) issued by neutral and detached
magistrate; and (4) state with particularity place to be searched and items to be seized
i.
Good faith: evidence obtained in good faith by police relying upon a search warrant that subsequently is found to be deficient may be used in trial unless other
exception exists. Four Exceptions: (1) If affidavit supporting the warrant is so egregiously lacking in probable cause (i.e. Independent officer must be able to
determine probable cause); (2) Facially deficient in particularity officers could not presume it to be valid; (3) If affidavit contains knowing or reckless falsehoods
necessary to the probable cause finding; and (4) If magistrate is biased in favor of the prosecution
ii.
Probable cause: Probable cause determined by the totality of the circumstances:

Basis of knowledge and reliability are still relevant, practical/common sense decision. Magistrate only needs a substantial basis that probable cause
existed - a fair probability that evidence will be found in a particular case. May use informants (2-Part Test: is the informant credible? is the informant
reliable?) as part of this analysis

Important: reasonable suspicion is less of a standard than probable cause

o
Requires facts that inform an officer's belief that criminal activity is present (4th Amendment only cares about objective reasonableness of the stop
not officer's subjective intent)
iii.
Neutral magistrate: unbiased
iv.
Particularity: if warrant only specifies color of house and nothing to be seized (affidavit can state these things but needs attachment) then the requirement for
particularity is not met and warrant is invalid.
b.
If yes, then no fourth amendment violation
c.
If no warrant, is there a valid exception (ESCAPIST)?
i.
Valid exceptions: (E)xigent circumstances, (S)earch incident to arrest, (C)onsent, (A)utomobile, (P)lain view, (I)nventory, (S)pecial Needs, (T)erry Stop and Frisk

Exigent Circumstances: police are not required to obtain a search warrant if they reasonably believe theres: Imminent threat to life, Imminent and
serious threat to property, Imminent escape of a suspect, or Imminent destruction of evidence
o
Hot Pursuit: police may enter a private dwelling if they are in "hot pursuit" of a fleeing criminal. Once inside a dwelling, police may search the entire
area without first obtaining a search warrant for fleeing criminal. Also applies to emergency aid.

SILA: while conducting a lawful arrest, police may search an individuals person (reaching area) and their immediate control/surroundings for weapons or
other items that may harm the officer. If a person is arrested in or near a vehicle, the officer has the right to search the inside and passenger compartment
of that vehicle. Not the trunk unless searching for items a part of the arrest.

Consent: police may conduct a search without a search warrant if they obtain consent. Consent must be freely and voluntarily given by a person with a
reasonable expectation of privacy in the area or property to be searched.
o
Apparent Authority: consent given by a person lacking authority is still valid if the officer reasonably believed consenting party had actual authority.
Any resident can authorize common area search. The objecting party can block the officer authority to search common areas if present and objects.

Automobile Exception: police may search a vehicle if they have a reasonable belief that contraband is contained inside the vehicle.

Plain view: three requirements: (1) lawful access to the place from which the item can be plainly seen, (2) lawful access to the item itself, and, (3) the
criminality of the item must be immediately apparent (Ex: Hot pursuit looking for felon, ok to enter house without warrant, in closet finds backpack with
baggy labeled marijuana. Lawful access to place, criminality apparent of item labeled marijuana but did not have lawful access inside backpack when
looking for the person.)

Inventory: vehicle impound or booking into jail

Special Needs: policy reasons (i.e., sobriety Check Points; border search; school search; and more)

Terry Stop: pat down of body and outer clothing for weapons justified by officer's belief the suspect is armed and dangerous.
I.

Custodial Arrests under 4th AM

-All offenses of those punishable by a monetary fine only (within officer's plenary authority)
Confessions- 14th AM - Due Process Clause
Involuntariness: the confession is the product of police coercion that overbears the suspects will
Colorado v. Connell: Psycho admits to murder and psychiatrist says he is psychotic at time of confession. Because Connelly was not coerced by the Government to divulge any
information, his statement should be allowed in Court due to the lack of violation of the Due Process Clause.
Confessions- 6th AM - Right to Counsel
Express constitutional guarantee
Limited in scope:
1. Attaches when defendant is formally charged (not upon arrest)
2. Once attached, applies at all critical stages of the prosecution, including arraignment, probable cause hearings, police interrogation (after formal charging)
3. Offense specific: applies only to the crimes with which a defendant is formally charged
-No protection for uncharged criminal activity
4.If statements are deliberately elicited by the officer they will be excluded in absence of a waiver
Confessions- 5th AM - Miranda Doctrine
Implied rights grounded in the self-incrimination clause of the 5th AM
You have the right to remain silent anything you say can and will be used against you and you have the right to an attorney if you cannot afford one, one will be provided to you
Requirements for Miranda to Apply:
1. Custody Requirement- to determine suspect in custody is two-step process:
-Step 1: Freedom of movement: whether a reasonable person would have felt they were at liberty to terminate the interrogation and leave
-Step 2: Environment of interrogation: inherently coercive and police dominated (need both for custody)
2. Interrogation Requirement: any conduct that the police knew or should have known was likely to elicit and incriminating response
Ex) Case Defendant thought he was talking to fellow inmate and confessed to undercover cop about another murder (not the crime he was jailed for) so environment is not
coercive and Miranda does not apply
Public Safety Exception
If interrogation is prompted by immediate concern for public safety, Miranda warnings are not necessary and any statements defendant makes are admissible.

Public Safety Exception (Miranda Rights)

Public Safety Exception
If interrogation is prompted by immediate concern for public safety, Miranda warnings are not necessary and any statements defendant makes are admissible.
A suspect with custodial may:
1. Waive Miranda rights and agree to talk with officers
2. Assert his right to remain silent
3. Assert his right to counsel
Miranda Waiver
May be implied by course of conduct that suspect waives rights by making un-coerced statement to officers
Must be established by prosecution by preponderance of evidence
Requirements for Waiver:
1. Knowing and intelligent
In order to be knowing and intelligent the suspect has to understand the nature of the rights and consequences of abandoning them
2. Voluntary
Free from police coercion *always means the same thing throughout crim pro*
Ex) Case where man is arrested and attorney calls into station house and demands to be called if her client will be interrogated. Client waives Miranda rights and incriminates
himself. SCOTUS (O'Connor) determined he understood knowingly and intelligently his Miranda rights were being waived voluntarily despite attorney not being present
Assert his right to remain silent
Must unambiguously invoke this right to remain silent
Once they do the police must scrupulously honor the indication
At the very least the police cannot badger the suspect into talking and must wait significant period of time before they re-initiate questioning
Assert his right to counsel
Even the conservative courts of the last few decades safeguard the indication of right to counsel
Not offense specific... prohibited to all topics outside presence of suspect's attorney
In order to invoke:
i. Request must be sufficiently clear that a reasonable officer would understand it to be a request for counsel
ii. Once made, all interrogation must cease unless initiated by the suspect until 14 days after suspect is released from custody UNLESS suspect initiates or is questioned in
presence of the attorney
Exclusionary Rule for Miranda
Incriminating statements obtained in violation of Miranda are inadmissible in prosecution's case in chief but admissible to impeach testimony on cross
A failure to mirandize does not require suppression of the physical fruits of incriminating statements provided they are voluntary
-Suspect confesses to murder, tells cop where murder weapon is, cop retrieves weapon, later determined entire interrogation in violation of Miranda, the defendant can secure
statements but not the weapon as a physical fruit of the interrogation
Subsequent statements made after obtaining a Miranda waiver are admissible provided the initial non-Mirandize statement as not obtained through the use of inherently coercive
police tactics offensive to due process
-Police get second bite at the apple
Identification Types
Line up
-Witness asked to identify perpetrator from behind one way glass (as few as three, as many as 6)
Show Up
-Witness is shown one person and asked if that person is the perpetrator
Photo array
-Witness is shown series of photograph (few as 6, as many as book) to identify the perpetrator
Identification Challenges
Denial of right to counsel
1. The 5th AM Miranda doctrine does not apply to pre-trial identification procedures
2. The 6th AM right to counsel applies to line up, show ups but NOT photo arrays
Due Process
1. If pre-trial identification is so unnecessarily suggestive that it creates a substantial likelihood of irreparable misidentification
2. In making this determination courts must weigh reliability of ID against its corrupting effect
Remedy for Unconstitutional Identification
When constitutional violation of pretrial identification occurs the remedy is exclusion of witnesses in court ID otherwise a miscarriage of justice may occur UNLESS proved
witness's ID is based on observations other than the unconstitutional line up the open court ID will be permissible
Three factors to make this permissible (realiability!):
i. Witnesses opportunity to view Defendant at crime scene
ii. Specificity of description given to the police
iii. Certainty of the witnesses identification
Arraignment
3 Occurrences during Arraignment
i. Magistrate advises suspect of their rights
ii. Sets bail
iii. Appoints counsel if not already represented
Pre-Trial Detention
Cannot detain someone prior to trial without probable cause
Defendants have right to hearing to determine probable cause
Unless one of two situations:
-Grand jury has issued an indictment
-Magistrate has issued an arrest warrant
Trial Rights- Brady Rule
A prosecutor must disclose all material exculpatory evidence (Brady Rule) prior to trial
All defendants have a right to an unbiased judge
Unbiased Judge
1. No financials stake in the case

2. No actual malice towards the defendant

Trial Rights - Jury
All criminal defendants have right to fair and impartial jury
The right to a jury trial kicks in when maximum authorized sentence exceeds six months
The fewest number of jurors allowed constitutionally is 6
Jury verdicts constitutionally must be unanimous if 6 jurors are used
1.Criminal trial for felonies typically states use 12 person juries and require unanimous decisions
Cross Sectional Requirement
1.The pool of jurors from which jury is drawn represents a cross section of the community, not the actual jury itself
Peremptory Challenges
1. May exclude jurors without stating reason
2. Cannot be used by either side to exclude jurors on basis of race or gender
Right to Effectiveness of Counsel
Evaluated under two prong test (Strickland Test):
1. Deficiency Requirement
-Counsel's performance fell below an objective standard of reasonableness (errors were so serious it was as if they were not functioning as counsel)
2. Prejudice Requirement
-But for the deficiency, the outcome of the trial would have been different
Ex: attorney takes cat naps during trial ok because was not prejudicial
Ex: attorney slept through entire 15 minute testimony and could not perform cross and court said no prejudice because that witness didn't have much to say anyways
Need some colorable argument the person is not guilty or else appeal will be denied
Pleas and Plea Bargaining
A guilty plea is valid when:
1. Voluntary
2. Intelligent
To meet showing judge must engage in plea taking colloquy
1. Judge must address on record in open court:
-Nature of charges + elements of defense
-Consequences of the plea
Double Jeapordy
***DOES NOT APPLY TO CIVIL PROCEEDINGS***
Criminal defendants shall not be subject for the same offense to be put twice in jeopardy of life and limb by the same sovereign
Attaches to criminal proceeding when:
1. Jury Trial: when jury is sworn jeopardy attaches
2. Bench trial: when first witness is sworn jeopardy attaches
3. Guilty Plea: when court accepts the plea unconditionally jeopardy attaches
Same Offense (Double Jeapordy)
Blockburger Test
-Two offenses aren't the same offense for double jeopardy if each contains an element the other does not
Ex) First charge requires charges ABC and second requires ABCD that would mean the first offense is lesser included offense of the second. Once greater or lesser charged you
cannot go back and charge the other one again later on
Same Sovereign (Double Jeopardy)
1. Can be prosecuted by federal and same thing under state law
2. Different states are considered separate sovereign (state A then state B)
3. States and municipalities within them are same sovereign
Ways around Dbl Jeopardy
1. Hung Jury
2. Mistrial for manifest for necessity (defendant too sick=mistrial)
3. Successful Appeal (legal issue) not insufficiency of quantum of evidence
4. Plea bargain if Defendant breaches plea bargain
Compelled Testimony
Pleading the 5th
1. Anyone can plead the 5th (defendants, witnesses, criminal defendants) and must be taken in proceeding of sworn testimony
2. Testimonial privilege only (doesn't apply to state's use of your body)
Ex: man pulled over for DUI wont consent to breathalyzer and nurse takes blood forcibly. SCOTUS found this is a privilege for testimonial purposes only.
3. Disallows negative prosecutorial comment on:
-Defendant's choice not to testify
-Defendant's invocation of Miranda right
Preventing Pleading the 5th
1. Granting immunity
Use and Derivative Use Immunity
-Prevents government from using testimony or anything derived from it
2. Defendant takes the stand
-By taking the stand you implicitly waive ability to take the 5th
3.Statute of limitations
-Cannot take the 5th unless by answering the question you are exposing yourself to criminal prosecution
-If all it does is make you look bad (the SOL has run on your crime committed) you cannot take the 5th