Criminal Procedure

Seizure

under totality of circumstances - reasonable person would feel they’re not free to decline officer’s requests or otherwise terminate the encounter

Arrest

occurs when police take person into custody against their will for purposes of criminal prosecution or interrogation

must be based on probable cause - based on totality of circumstances

warrant generally not required before arresting person IN PUBLIC PLACE - usually need for nonemergency arrest of person in home

Effect of invalid arrest

by itself - no impact on any subsequent criminal prosecution

Terry Stop (Investigatory detentions)

police can briefly detain even if lack probable cause - no specific time limit (but my diligent and reasonable manner in confirming or dispelling the suspicions)

if have reasonable suspicion of criminal activity or involvement in completed crime supported by articulable facts - can detain for investigative purposes

if think armed/dangerous - can frisk for weapons

if reasonable suspicion based on informant - must have indicia of reliability

Automobile Stops

generally ok if have reasonable suspicion - can order occupants out and frisk and search passenger compartment for weapons (even after occupants out of car)

routine traffic stops - dog sniff isn’t a search but cant extend stop beyond time needed to issue a ticket or conduct normal inquiries

dog alert - can form basis for probable cause — but can’t use outside of home

mistake of law - doesn’t invalidate seizure as long as mistake was reasonable

if legal stop - motive of officer irrelevant even if stopped to investigate another crime

Fourth Amendment - Search and Seizure: no warrant needed when?

1. Search Incident to Constitutional Arrest

2. Automobile Exception

3. Plain View

4. Consent

5. Stop and Frisk

6. Hot Pursuit/Evanescent Evidence/Emergency Aid

Standing to object to government search

based on totality of circumstances:

1. right to possession of place searched

2. their home

3. overnight guest of owner of place searched

no reasonable expectation of privacy in objects held out to public except cell-site location

1. voice, style of handwriting, paint, bank accounts, location of car, open fields, public airspace, odors, garbage on curb of home

Requirements for valid search warrant

1. probable cause

   • informer’s tip - “totality of circumstances” (identity generally not needed)

   • can’t be fully anonymous though

   • invalid IF

     • 1. false statement

     • 2. intentionally or recklessly included false statement

     • 3. false statement was material to finding of probable cause

2. particularity

   • must describe place to be searched and items to be seized

   • otherwise unconstitutional

judge issuing warrant must be neutral and detached

only police can issue a warrant - without unreasonable delay

Knock and Announce Rule (warrant)

must knock, announce purpose, wait reasonable time for admittance

can’t be accompanied by third party unless aiding to identify stolen property

violation of knock/announce rule: WILL NOT result in suppression of evidence - no exclusionary rule applies!!!!

can detain occupants during search - but doesn’t authorize police to search people NOT named in warrant or people who left premises — so limited to immediate vicinity

Search Incident to Constitutional Arrest

must be contemporaneous in time and place with arrest

can search person and areas (within wingspan) where might reach to obtain weapons or destroy evidence

can search interior of car (NOT TRUNK) AFTER securing occupant if reason to believe vehicle contains evidence of crime arrested for

can search passenger compartment if person unsecured and still may gain access to interior

no blood tests for DUI - only breath

physical attributes of phone - not data

Automobile Exception to Warrant requirement

if have probable cause car contains “fruits, instrumentalities, or evidence of a crime” - can search WHOLE vehicle and ANY container (not limited to just driver’s stuff) unless probable cause only for certain containers (example - luggage)

if parked within curtilage of suspect’s home - need warrant

probable cause can arise after car is stopped but must arise before anybody/anything searched

Plain View - Warrant exception

can make warrantless seizure when:

1. legitimately on premises

2. discover evidence, fruits or instrumentalities of crime/contraband

3. see evidence in plain view; and

4. have probable cause to believe item is evidence/contraband/fruit or instrumentality of crime

Consent - warrant exception

valid if police have voluntary consent

knowledge of right to withhold consent = not prerequisite

scope of search can be limited by consent

can’t give consent when co-occupant objects - but can if co-occupant who objected is then removed for reason unrelated to refusal

Stop and Frisk - Warrant Exception

terry stop: brief detention for purpose of investigating suspicious conduct

terry frisk: patdown of outer clothing and body to check for weapons

may stop w/o probable cause for arrest if ahve articulable and reasonable suspicion of criminal activity

limited to patdown of outer clothing unless specific info about weapon is hidden in particular area of clothing

can reach into clothing and seize item = plain feel is weapon/contraband

automobile: reasonably armed/dangerous = can conduct frisk of person and search vehicle but limited to areas where weapon may be placed

Hot Pursuit/Evanescent Evidence/Emergency Aid

evanescent = evidence that might disappear quickly if took time to get warrant (ex: can scrape fingernails)

hot pursuit: of feeling felon - can make warrantless search and seizure and even pursue into private dwelling (of anyone’s home) and any evidence in plain view is admissible

timing: if not within 15 minutes — not hot pursuit

emergency aid: may enter premises without warrant if officer faces emergency that threatens health or safety of individual or public (ex: gunshots in home)

Administrative Inspections/Searches

public school searches: only reasonable grounds are necessary - which shown:

1. offers a moderate chance of finding evidence

2. measures adopted to carry out search are reasonably related to objectives of the search

3. search is not excessively intrusive in light of age/sex of student and nature of infraction

Wiretapping and Eavesdropping

wiretapping = search under 4th Amendment

speaker assumes risk person to whom they’re talking either consents to government monitoring convo or is an informer wired for sound/taping the convo

no 4th Amendment claim if make no attempt to keep convo private

Evidence that shocks the conscience

inadmissble if evidence obtained in manner that shocks the conscience (torture, etc.)

Fourteenth Amendment - confessions

self-incriminating statement must be voluntary - totality of circumstances

harmless error test: conviction need not be overturned if there’s other overwhelming evidence of guilt

Sixth Amendment Right to Counsel

all critical stages of prosecution AFTER judicial proceedings have begun - after D has been charged

OFFENSE SPECIFIC - can be questioned about unrelated, uncharged offenses

statement obtained in violation = still can be used to impeach D

waiver must be knowing and voluntary

nontrial proceedings = harmless error test

trial = automatic reversal

Fifth Amendment Privilege Against Compelled Self-Incrimination

Miranda warnings required when in custodial interrogation - warnings don’t need to be verbatim

when required - inapplicable at grant jury hearing:

1. anyone in custody of government and accused of crime must be given Miranda warnings PRIOR to interrogation by police

custody requirement: 2-part test

1. court determine whether reasonable person under circumstances would feel free to terminate the interrogation and leave

2. whether relevant environment presents same inherently coercive pressures

interrogation: incudes any words or conduct by police that should know would likely elicit an incriminating response from detainee

1. not required for spontaneous statements

2. routine booking questions = not interrogation

Miranda warnings - right to waive or terminate proceedings

1. Do Nothing - not presumed waiver but police can continue questioning

2. waive rights - waiver was knowing and voluntary (preponderence of evidence)

3. invoke right to remain silent - must be explicit, unambiguous, and unequivocal

   • police must scrupulously honor right

   • can requestion when:

     • wait significant amount of time

     • re-Mirandaized

     • questions limited to a crime not the subject of the earlier questioning

4. Invoke Right to Counsel

   1. unambiguously wish to speak to counsel - ALL questioning stops then waives right to counsel OR is released from custodial interrogation + 14 days passed since release

   2. request to counsel must be specific

Effect of violation of Miranda?

inadmissible at trial - exclusionary rule

can be used to impeach D’s trial testimony

inadmissible if “question first, warn later” tactic used by police

physical evidence = admissible unless failure to warn was purposeful

public safety = no warnings needed to interrogate

Pretrial Identification

No Sixth Amendment right (only applies to post-charge lineup)

pretrial identification = denies due process if unnecessarily suggestive and substantial likelihood of misidentification

remedy = exclusion of in-court identification unless there’s an independent source (such as observed the crime)

Exclusionary Rule - Exceptions

judge-made doctrine that prohibits evidence obtained in violation of 4, 5, and 6 Amendment rights

EXCEPTIONS TO FRUIT OF POISONOUS TREE:

1. evidence obtained in violation of Miranda

2. evidence obtained from source independent of original illegality

3. evidence so remote of unconst. conduct or has been interrupted by intervening circumstance (attenuation)

4. intervening acts of free will on D

5. inevitable discovery

6. violations of knock and announce rule

Limitations on Exclusionary Rule

inapplicable to:

1. grand juries unless violation of wiretapping statute

2. parole revocation proceedings

3. civil proceedings

4. where evidence obtained contrary to only state law or agency rules

doesn’t apply when police arrest erroneously but in good faith (valid warrant or law) EXCEPT:

1. affidavit underlying warrant is so lacking in probable cause no reasonable police officer would’ve relied on it

2. affidavit underlying warrant is so lacking in particularity no reasonable officer would’ve relied on it

3. police officer or prosecutor lied to or misled the magistrate when seeking warrant

4. magistrate was biased and wholly abandoned their neutrality

Grand Juries

conducted in secret - D has no right to notice, be present/confront witnesses, or introduce evidence

Witnesses at grand jury: no right to Miranda or counsel

can be based on inadmissible evidence - even illegally obtained evidence

Speedy Trial

totality of circumstances - attaches when D is arrested or charged

D doesn’t need to know of charges for right to attach

Right to Trial by Jury

only for serious offenses - if imprisonment for more than 6 months

no right for juvenile delinquency proceedings or civil contempt proceedings

number of jurors: must be at least 6 and unanimous

death penalty: prosecutor can’t auto exclude those against it; juror must be excluded for cause if would auto give death penalty

Right to Counsel at trial

violation = requires reversal (harmless error for non-trial denials)

can waive if knowing and intelligent and competent to proceed pro se

6th Amendment right to EFFECTIVE counsel - must show ineffective by:

1. deficient performance by counsel; and

2. but for deficiency, result of proceeding would have been different

but can’t base claim on inexperience, lack of time to prepare, or gravity of charges, complexity of defenses, or accessibility of witnesses to counsel

Right to Confront Witnesses

6th Amendment right - but it’s not absolute, can exclude when serving important public purpose (such as protecting kid)

introduction of co-defendant’s confession:

1. all portions referring to other D can be eliminated

2. confessing D takes the stand; OR

3. confession of non-testifying D is being used to rebut D’s claim that their confession was obtained coercively

Confrontation Clause - prior testimonial evidence not admissible unless:

1. declarant is unavailable; and

2. D had opportunity to cross-examine declarant when statement was made

not testimonial if statement in police interrogation intended to aid in response to ongoing emergency

Pleas

must be voluntary and intelligent - and on the record

• not involuntary when entered in response to prosecution threat to charge D wtih more serious crime if don’t plead guilty

judge must ensure:

1. nature of charge and crucial elements of crime charged

2. max possible penalty and mandatory minimum

3. D has right not to plead guilty and if plead - waive right to trial

Sentencing

Right to counsel

can be based on hearsay and uncross-examined reports

8th Amendment - prohibits cruel and unusual punishment

1. Death Penalty - not for rape if rape not intended to kill and or did not kill; same for felony murder unless murderer’s participation was major + reckless indifference

2. can’t execute person insane at time of execution

3. can’t impose on intellectually disabled person

4. can’t impose on person under 18 years old at time they committed the crime

no life without parol for minor who committed non-homicide crime — can be sentenced to life without for homicide but can’t be sentencing scheme that imposes such mandatory sentence

Right to Appeal

no constitutional right to appeal

indigents - must be given counsel during FIRST appeal as matter of right and for appeals of guilty pleas/pleas of nolo contendere

no right to appointed counsel at habeas corpus proceeding

Double Jeopardy - only bars repetitive CRIMINAL proceedings

5th Amendment - can’t be retried for same offense when jeopardy attaches but doesn’t apply to trials by separate sovereigns

• Same offense: unless each crime requires proof of additional element other doesn’t require

• multiple punishments permissible if legislative intent

• attachment of jeopardy for greater offense bars retrial for lesses included offenses and greater offenses

Jeopardy attaches (not attached in civil proceedings except juvenile proceedings):

1. jury trial: at empaneling and swearing of jury

2. bench trial: when first witness sworn

When re-trial permitted:

1. hung jury

2. when manifest necessity to abort original trial/termination occurs at behest of D

3. D successfully appealed conviction

   1. when reversal based on weight of evidence

   2. CANT be retried for greater offense than that convicted on

4. charges can be reinstated after D breaches plea bargain

5. D elects to have offenses tried separately

Fifth Amendment Privilege Against Compelled Self-Incrimination

ONLY protects testimonial/communicative evidence - not real/physical evidence

can be asserted by any person in any type of case

only natural persons - not corporations or partnerships

privilege is personal and can be waived

answer must tend to incriminate them

must be invoked at FIRST occurrence - in civil or criminal matter

criminal defendant: right not to take the witness stand and not be asked to do so

• civil proceedings: can’t avoid being sworn in or being asked questions - but must invoke privilege

prosecutor can’t comment on D’s silence after arrest/Miranda or failure to testify at trial

• unless is in response to D’s assertion that D wasn’t allowed to explain his side of story

• if suspect chooses to remain silent before Miranda: can be used against D in court

• harmless error test if prosecutor comments

Fifth Amendment Privilege Against Compelled Self-Incrimination + Immunity

may be compelled if granted immunity

1. Use and Derivative Use = Sufficient

   • guarantees witness’s testimony/evidence located by means of testimony won’t be used against witness

   • can still be prosecuted if shown evidence was derived from source independent of immunized witness

2. Immunized Testimony Involuntary

   • testimony obtained by promise of immunity is coerced

   • may not be used for impeachment of D’s testimony at trial

federal prosecutors can’t use evidence obtained as result of state grant of immunity and vice versa

no privilege against self-incrimination if no possibility of incrimination (like SOL run)

Delinquency proceedings

no right to trial by jury

must be given to child during trial:

1. written notice of charges

2. assistance of counsel

3. opportunity to confront and cross-examine witnesses

4. right not to testify

5. right to have guilt established by proof beyond reasonable doubt

Forfeiture/Property Rights

personal property: no notice/hearing before seizure; but hearing required before final forfeiture

real property: notice and opp. to be heard is required before seizure of real property unless exigent circumstances justify immediate seizure

Fines and 8th Amendment (Excessive Fines Clause)

• only applies to fines imposed as punishment — doesn’t apply to civil fines

• PENAL forfeitures subject to Clause but not civil

• excessive if “grossly disproportionate” to gravity of offense