Criminal Procedure

6th Amendment functions

• Right to a jury where the crime is punishable by more than 6 months in jail

• Right to an attorney for a punishment of jail time

4th amendment violation analysis

• Search/Seizure?

• Was it unreasonable?

• Does the exclusionary rule apply

Exclusionary Rule

Remedy in crim cases for evidence that has been unconstitutionally obtained

Procedure to exclude things

• Motion

• Hearing

• Judge decides after pretrial hearing based off credibility of cops/witnesses

• Appellate court is bound by the facts and credibility decisions of trial court judge

Exclusionary Rule good faith exemption

Law enforcement reasonably relied on the warrant

*No in NY

Exclusionary rule Legislatures mistake exemption

Unless a statute is clearly unconstitutional, an officer can reasonably rely on the statute for their search/seizure

Exclusionary rule SCOTUS mistake exception

When police relied on case precedent that is later overturned

Exclusionary rule Court Employee exception

Mere error by court clerk

Exclusionary rule Private Searches exception

No exclusion for evidence found by a private purpose unless they were acting as a government agent

Exclusionary rule Grand Jury exception

Witnesses can’t refuse to testify about evidence found in an unlawful search

Exclusionary rule Statute/Common Law exception

Violation of statute does not equal suppression unless the statute protects a constitutional right

Knock and Announce Rule

Police required to knock, announce and wait a reasonable time before entering

Knock and announce rule exceptions

Risk of danger or destruction of evidence

Remedy for violation of knock and announce rule

Exclusionary rule doesn’t apply so sue the police department

Errors by the police that can be excused

• Negligence

• Mistake of fact

• Mistake of law

Trespass test

If police trespass to obtain information that is a 4th amendment violation

Katz test

1. Subjective expectation of privacy - did the defendant expect privacy?

2. Objective expectation of privacy - is society prepared to recognize this as reasonable?

3rd Party Doctrine

Person can’t have a reasonable expectation of privacy in info knowing disclosed to a 3rd party

*Ex: Credit cards, EZ pass, Utility Bill

Dog sniffs

Not a search so long as dog is in a lawful place. The alert creates probable cause

Dog sniff in NY

1. Apartment building hallway = constitutional with reasonable suspicion

2. Car = constitutional with founded suspicion

Open fields in NY

Protected if there’s no trespassing signs

Police use of enhancements

Constitutional if the enhancement is available to the public

Ex: Flight, Magnification, Trackers

Police use of flight

No 4th amendment limitation because no expectation of privacy

Police use of magnification

If the cop is in a lawful place, using devices accessible to the general public no 4th amendment violation

Police use of trackers

No violation unless inside of home or extended period

Standing

Required to challenge the constitutional violation

Who has standing

Persons whose effects are searched/seized or they have a reasonable expectation of privacy

*Not passengers or guests, but overnight guests have standing

Probable cause for an arrest

1. Probable cause to believe that a crime was committed and

2. Probable cause to believe that a particular person committed the crime

Probable cause for search/seizure

1. Probable cause that a crime was committed

2. Probable cause that a particular piece of evidence will be found in a particular place

Methods of getting probable cause

1. Personal knowledge by the police

2. What others tell the police

Probable cause factors for informants

1. Credibility AND

2. Basis of knowledge

• Federal government considers totality of circumstances, not NY

How to prove credibility probable cause factor

Proven by informant track record, if info against penal interest or police corroborate the details

How to prove basis of knowledge probable cause factor

• Fellow officer rule

• Self verifiable (if very detailed or corroborated)

Components of a warrant

Affidavit that must include facts to prove probable cause

What’s included in a warrant

The warrant must describe the particular place and things to be seized

When you don’t need a warrant

If the cops are in a lawful position to see something and they see it

Timing for execution of a search warrant in NY

10 days

Timing for execution of a search warrant in Fed court

14 days

Who can sign a warrant

Neutral and detached Magistrates

Who cannot sign a warrant

• Likely prosecutor’s cannot

• Someone who is paid

• Someone who hasn’t read the case

Particularly describe: Mistakes

Where cops find “subparts” while searching → objective reasonableness standard

Particularly describe: Scope

Depends on what cops are looking for. Once the cops find what they’re looking for, they can’t keep searching. Except in drug cases

Sneak and Peek search

Document material is there by looking/taking photos, then putting it back

Purpose for Sneak and Peek search

Keep target ignorant that search occurred

Anticipatory search

Investigation shows that evidence of crime isn’t there yet, but will be soon

Purpose for an anticipatory search

Evidence may be gone/destroyed while waiting for a warrant

2 Pre-requisites for an anticipatory search

1. If triggering event occurs, there is probable cause the evidence will be found

2. There’s probable cause the triggering event will occur

*can only execute after triggering event occurs

Requirements for warrantless arrests

1. Probable cause

2. Public place

Warrantless arrests in NY

No warrantless arrests for misdemeanors, Class E Felonies, or non violent crimes

Post warrantless arrest

Judge must determine probable cause within 48 hours

Police use of force during arrest

Only use as much force as necessary to detain

Test for when police can use deadly force

What would a well trained officer do

When does SILA apply

When an arrest is mandatory, discretionary, and even if it is unlawful

Effects definition

Not clothes, but other movable things such as wallet, purse, etc.

When can police search effects at the police station

1. SILA

2. For inventory purposes after booking

SILA in NY

Not automatic, need independent justification (aka a reasonable suspicion)

NY SILA time and space limitations

The search can’t be significantly divorced in time and place from the arrest unless exigent circumstances

For DWI 2 ways to get BAC

1. Breath

2. Blood (need warrant unless unconscious or exigent circumstances)

Test for other bodily intrusions

Can’t shock the conscience. Case by case basis. Weigh societal interests and the priority interests of the defendant

Searches of homes

Warrantless searches of homes are presumptively unreasonable

Requirements for entering the home to arrest

1. Need an arrest warrant to physically get into the premises

2. Once you get arrest warrant, can enter home without probable cause that they’re home

3. However, need reasonable suspicion that they’re home

2 exceptions to warrant requirement to arrest in home

1. Exigent circumstances/emergency

2. Consent from whoever has control over the area

SILA regarding arrest in homes

Automatic after arrest but cannot go beyond reachable area

Police protective sweep

Need reasonable suspicion to search non adjacent rooms, but not connecting rooms

Hot pursuit

Only thing to consider is immediacy/dangerousness - can search whole house for danger and weapons

Automobile exception

If there’s probable cause to believe contraband is in a vehicle, police may search the vehicle and it’s containers

*also applies to phones and passenger containers

Vehicles and SILA

Passenger compartment is not automatic, must have reason to believe there is evidence of the crime in the car (lower standard than the automobile exception)

Standard procedures for inventory searches

1. Police bring vehicle to impound lot (can’t leave it on the street)

2. Purpose of search should be safety/theft (not for evidence)

3. Police must follow written guidelines that gives them limited discretion

3 objectives of inventory searches

1. Protecting owners property when in police custody

2. Ensuring cops against claims of lost/stolen/vandalized property

3. Guarding cops and others from dangerous instruments

Inventory procedures must meet 2 reasonableness standards

1. Must be rationally designed to meet the objective that justifies the search

2. Must limit the discretion of the officer

Consent

Must be voluntary under the totality of the circumstances

*Police has no obligation to tell people they don’t have consent

**Individuals can revoke/limit the scope of consent

Objective test for consent

What would a reasonable officer believe he would do

Examples where consent is not valid

1. Landlord can’t give consent to search rental

2. Hotel/Motel can’t consent to search of room

Conflicting consent

Where 1 party consents but another with equal rights refuses the police can’t search

*Objecting party must be present

Stop and frisk generally

• Temporary seizure and limited search

• Not a search for evidence but for safety purposes

Stop and Frisk level 1

Allows the police to request information only if objective, credible reason, not necessarily indicative of criminality

Ex: ID, address, destination

*If reasonable suspicion that person is armed and dangerous move to level 2

Stop and frisk level 2

More intrusive, requires a founded suspicion of criminality (less than reasonable suspicion)

Ex: anonymous tip

*If flees during questioning move to level 3

Stop and frisk level 3

Permits forcible stop and detain if reasonable suspicion the person committed/is committing/ is about to commit a crime

Stop and frisk level 4

Arrest which requires probable cause

Car frisks

May frisk car if suspect is outside their car and there is actual and specific evidence of danger/conduct of hiding something

Scope of stop and frisk

• Need reasonable suspicion to stop car and question passenger

• May temporarily detain to bring to crime scene

• No plain touch rule in NY

Special needs searches

If court determines the search is not for general law enforcement purposes but for some other reason, probable cause/warrant not required

Special needs search balancing test

Court must balance government interest (safety of public) and the intrusion of privacy

Types of special needs searches

1. Administrative (ex: inspections)

2. Closely regulated businesses (ex: liquor store or gun store)

3. Border searches (routine = automatic; non routine = need reasonable suspicion)

4. Automobile searches (ex: checkpoints for investigation or drunk driving)

5. Public school searches (need for private)

6. Drug testing (ex: government employees/school drug union)

7. Probation or parole (if statute, and reasonable grounds to believe there is contraband)

8. DNA (balancing test)

When does the 6th Amendment right to counsel begin

Criminal prosecution only after formal proceedings begin in court

5th Amendment protections

• Statements must be made voluntarily

  • Same elements are consent (subjective standard, subject provided statement without coercion)

• Miranda warnings must be given if suspect is in custody and being investigated

6th Amendment Right to counsel

• Guarantees cops can’t deliberately elicit info from the defendant

  • info needs to be verbal

6th amendment deliberate elicit

Broader than questioning (bringing up the subject is still eliciting)

Custody

• Arrest = Custody

• Deprivation of freedom in significant way = custody

Escobedo v. Illinois

Custody is when shifted to accusatory

Interrogation

• Not where volunteered

• Express questioning or functional equivalent (words or actions)

• Cops should know or reasonably should know it would elicit a response

Waivers

• Must be knowing and voluntary

• Can be express or implied

Miranda violation

• Can use statement only for impeachment

• Derivative evidence is admissible as long as made voluntarily

When Miranda applies

• The privilege of 5th amendment self incrimination doesn’t protect a suspect from being compelled by the state to produce real or physical evidence

  • Only protect evidence of a testimonial or communicative nature

• Public safety has to be an immediate danger to the public

Miranda rights to invoke

• Attorney: Cops can’t continue questioning. Not offense specific

• Silence: No more questioning. Offense specific

Massiah

Offense specific

Pre arrest silence

Can be used for case in chief

Post arrest silence

• If pre Miranda warnings can be used for impeachment

• If post Miranda warnings can’t be used for impeachment

Totality of the circumstances for Voluntariness (Factors for suspect)

• Age

• Competency

• Prior experience with police

Totality of the circumstances for Voluntariness (Factors for Cops)

• Force or threats of force

  • Presumptively involuntary

• Conditions