Criminal Procedure Outline

Due Process
 No admission admitted from violence
4th Amendment
 The right of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized
 Defendant's burden to prove that they deserve the protection of the 4th amendment
o Remedy for 4th Amendment violation is exclusion of evidence (motion to suppress)
See: Mapp v. Ohio
o Needs to have government action
 Agent of govt
 Govt employee
 What is a search?
o Threshold Question when you see the government examining anything (looking,
listening, smelling, feeling)
 if it is not a search, the 4th amendment does not apply
o See: Katz v. United States
 Katz abandons the trespass doctrine & abandons solely looking at the
constitutionally protected area
 States that 4th Amendment specifically protects people NOT places
o Search: (according to Katz)
àGovernment examination into an area where one has a reasonable expectation of privacy*
[examination: not just looking – using any sense]
o Reasonable Expectation of Privacy: 2 prongs (MUST have both*)
 (1) subjective: Area where suspect has demonstrated a subjective expectation of privacy
 (2) objective: This expectation is one which society is prepared to accept as reasonable
o Searches and Technology
 Enhances senses
 General public use?
o False Friend: We trust people at our own risk
 Assumption of risk
 See: United States v. White
 See: Smith v. Maryland
o Open field v. Curtilage
 4th Amendment applies to outside of the home (b/c the Home is Special **)
 Open field= 4th amendment does not apply
 Curtilage- a bit more protection
 What is a seizure?
o Government obtains possession, actual or constructive or brief, of
person/thing/information
o Person
 Stop of movement
 Did a reasonable person feel like they can terminate the interaction?
 Can be based on totality of circumstances
  Terry Stop
 Car stop
 Reasonable Suspicion
 Articulable facts
 Not a hunch
 Arrest
 Probable Cause
 Warrant required for persons own home
o Thing/Information
o Proof of continuum
 Beyond a reasonable doubt
 Clear and convincing
 Preponderance
 Probable cause
 Reasonable, articulable suspicion
 Hunch
 Probable Cause
o PC exists where:
 “the facts and circumstances within [the officers’] knowledge and of which they
[have] reasonably trustworthy information [are] sufficient in themselves to
warrant a man of reasonable caution in the belief that an offense has been or is
being committed.”
o Source of information
 First hand account of affiant
 Reasonable inferences drawn by stated facts
 Experience of affiant
 Trustworthy second-hand sources
o See Spinelli v United States
 Aguilar v Texas two prong test
o See Illinois v Gates
 Totality of circumstances
o 4A in Practice
 Warrantless searches- burden on Gov’t
 Witnesses support existence of exception
 Warranted searches - burden on defendant
 Per se reasonable
 Attack warrant within “4 corners”
 Franks hearing
 Threshold showing
 Knowing lie or reckless disregard for truth
 Excise offending language
 Search and arrest warrants
o Both are based on Probable cause
 Arrest- to believe suspect is committing or has committed a crime
 Search - to believe that evidence of a crime will be found in place to be searched
o Felonies – warrantless arrest based on PC
 exigency allows for review after
 o Misdemeanor - warrantless arrest only if committed in officer's presence
o See - Payton v New York
o Search warrants are per se reasonable, but their execution can be unreasonable.
 Defendant has to overcome presumption
o Warrantless searches are per se unreasonable unless they are justified by an exception
that has been deemed reasonable
 Government has to overcome presumption
o See Lo Ji Sales
o See Richards v Wisconsin
 Standard for no knock
 Reasonable suspicion of danger of officer or some risk of obstruction of
evidence
o Search warrant odd and end:
 Scope of search limited to what is particularly described in the warrant or plainly
contraband
 Persons present for or in proximity to search warrant execution subject to
limited search
o Parts that make up a search warrant:
 Warrant
 States what can be searched
 Which policy agency can do searching
 Picture of house
 Reference to appendix
 Order of the court- signed by judge
 Application
 Affiant presents the probable cause here
 Facts that supports issuance
 Appendix
 Extensive item list if needed
 Sealing Order (sometimes)
 When search is done then you leave only warrant and not application
 Return
 Warrant exceptions
Search Incident
Exigency
Car stop and search
Plain View
Consent
Terry Stop and Frisk
Pretextual stops
Comm. Caretaking
Checkpoints
Protective sweep
Hot Pursuit
Maintain Status Quo
Car Frisk
Inventory search
o Warrant Requirement
o Search Incident to arrest
 See Chimel v California
 See New York v Belton
 See Riley v California
 Govt claim that search of cellphone was a valid search incident to arrest
 Exception- can seize phone after arrest. Not in persons possession
 Exception to exception- cant get through phone if not justified by arrest
o Plain view, touch, smell etc
 Impaired driving and search incident
 Breath or blood
 See Horton v California
 Degree of intrusion and reasonableness
o Cars, containters, pretextual stops
 Vehicles
 See Chambers v Maroney
 See Coolidge v New Hampshire
 See California v Carney


 See Cardwell v Lewis

 “One has a lesser expectation of privacy in a motor vehicle because its
function is transportation and it seldom serves as one’s residence or as
the repository of personal effects. A car has little capacity for escaping
public scrutiny. It travels public thoroughfares where both its occupants
and its contents are in plain view.”
 See South Dakota v Opperman
 “Besides the element of mobility, less rigorous warrant requirements
govern because the expectation of privacy with respect to one's
automobile is significantly less than that relating to one's home or
office.”
 Inventory Searches
 Containers in Cars
 See United States v Chadwick
 Footlocker in automobile is searchable
  See California v Acevedo


 Pretextual stops
 See Whren v US

o Consent
 See Schneckoth v Bustamonte
 Factor is intelligence or how much contact you had with police
 See Georgia v Randolph
 See Illinois v Rodriguez
o Exigency
 The exigencies of the situation make the needs of law enforcement so compelling that a
warrantless search is objectively reasonable- Kentucky v King
 See Warden v Hayden
 Is there time to get a warrant?
o Special Needs Searches
 Don't fit neatly into traditional 4A searches
 Based on reasonableness clause
 Administrative searches
 Public School searches
  Airport searches
 Border searches
 See Michigan Dept. of State Police v. Sitz (1990)
o Terry Stop and Frisk
 See Terry v Ohio
 See Alabama v White
 Seizure continuum:
 Arrest – probable cause
 Detention - RAS
 Accosting - nothing
 Standard for detention (seizure):
 reasonable, articulable suspicion
 Standard for pat-down (search):
 RAS that suspect is armed and dangerous

 Exclusionary Rule Scope

o No exclusionary rule unless there is standing that 4th amendment rights were violated-
there needs to be RXP (reasonable expectation of privacy)
o Exclusionary rule bars use and derivative use
o Deriative use=fruits from poisonous tree
o See Silverthorne v US
 Despite the fact that evidence was illegal, there is a way to use that information
 Independent source doctrine, inevitable discovery doctrine, and attenuation
discovery
 Independent source doctrine: This is a rule that allows evidence that
was initially obtained during an unlawful search or seizure to be later
admissible if the evidence is later obtained through a constitutionally
valid search or seizure.
 Inevitable discovery doctrine: This is a rule that allows evidence that
was discovered in an unlawful search or seizure to be admissible if it
would have been inevitably and legally discovered by an independent
line of investigation that was already being pursued when the unlawful
search or seizure occurred.
 Attenuation doctrine: This is a rule that allows evidence that was
obtained as a result of an unlawful search or seizure to be admissible if
the connection between the evidence and the unlawful conduct is too
remote or weak.
o See Murray v United States
o Inevitable discovery
 Preponderance standard
 Timing
 See Nix v. Williams
o See Wong Sun v. United States
o See United States v Leon
o See Hudson v Michigan
o See Herring v United States
o See Davis v United States
 o Fruits of the poisonous tree
 Dissipating the Taint - totality
 1) length of time
 2) flagrancy of initial misconduct
 3) act of free will
 4) different place
 5) different officers
 6) intervening causes
5th Amendment
 Statements
o Law of Statements
 Sometimes prosecutors even benefit when you lie or omit. Just dont say
anything at all!!
 Statements instead of confessions
 Even if you dont use it then its still a statement and law applies to it
 Applies to all statements of a suspect-not just confession
 Grant of power
 To police its to be able to talk to anyone to find out what happened. Not
necessarily confessions
 Limit of power
 Interrogations
 Method of Analysis
 Is there government action?
 Voluntary
 No mention of Miranda because we analyze when we look at
totality of circumstances if statement is extracted through
certain methods
 Involves more than just that as well
 Does Miranda Apply?
 Only in certain situations does this apply
 Does not work like in TV
 Does LE comply with Miranda?
 If it does apply then did Law enforcements do what was
needed?
 Interrogations and voluntariness
o Voluntariness Cases
 Hector (slave) v. State (1829)
 Holding
 Voluntariness of a statement is a matter of law, not fact
 Was it extracted in a fair way or in violation of due process
rights?c
 Brown v Mississippi
 Holding
 Satement coerced by Sheriff inadmissible under 14A
o Torture
 Immoral
 Does not lead to true statements
 Unreliability
  How do I know it was reliable if it prob was used to stop the torture
 Morally Wrong?
 Trolley problem
o Is the will of the suspect overborne?
 Are they doing things they typically wouldn't do?
 See Lisenba v. Califronia
 Court held that it was voluntary because it was out of own free will to
contradict stories and he seemed in control
o Coercive elements- beating, promises, etc
o Reliance on those things with statements
o Acts that make a statement per se involuntary
 Torture/beating
 Marathon interrogations
 No water/food
 No sleep
 No medical assistance
 Preponderance is the evidentiary standard for exclusion- A Jeff Davis Question
 There has to be a causation with statement and the acts
 “Shock the sensibilities of …
o See Spano v New York
o See Arizona v Fulminante
 Quid Pro Quo
o Quid Pro Quo
 Examples
 If you talk, I wont charge you
 If you talk, I wont punch you in the face
 If you talk, Ill get your girlfirend out of jail
 Tell me what happeend, and we’ll see about getting you a low bail
 We need to know what happened so we can get you the help you need
 Reliance
 State must show that promise or threat in no way induced the
statement
 Often the effect is obvious
 I wont tell you anything
 What if I do this?
 Ok Ill tell you everything
 Attenuation
 Some statements may be so far removed in time, and from the place
and police officer who made it that the promise of threat cannot have
an impact on a suspect’s decision to make a statement

 Miranda
o See Bram v United States
 Degree of influence
o Miranda v. Arizona (1966) – introduction
 You have the right to remain silent
 Anything you say can and will be used against you
 You have a right to an attorney
  If you cannot afford an attorney, one will be appointed for you
o Miranda Rights
 Triggering Event and Expiration
 Custodial Interrogation
 Doesnt always mean arrested and doesnt always apply to Terry stops
 Case by case
 Arrested or detained or surrounded you – its equivalent to “custody”
and when there is influence
 What are they meant to dispel?
 They are meant to cure something
 Meant to cure police dominated atmosphere
 The coercion that occurs
 Get away from idea of government action and instead think specifically
on police and their presence and their ability
 Are they in 5th amendment?
 Not really
 “Nor shall any person be compelled in any criminal case to be a witness
against himself”
 Extend 5A beyond the courtroom
o Miranda Scope
 When should warning be read?
 See Harris v New York
 See Michigan v Tucker
 Michigan v Tucker
 Derivative use?
 Can statements arising from it be applied?
 Poisonous tree
 See Missouri v. Seibert (2004)
 See Oregon v. Elstad (1985)
 See United States v Patane
 physical fruits of un-Mirandized statement are admissible
 Custody and interrogation
o Coercion Continuum
o 1. Per se actions (physical/ psych torture/ withholding
o 2. Quid Pro Quo (promises, threats, inducements)
o 3. Totality of Circumstances (age, education, criminal history, sobriety,
mental state)
o 4. Custodial Interrogation
o Custody- deprived of freedom of action in any significant way; subject to
restraints comparable to those associated with a formal arrest
o Interrogation- express questioning or the functional equivalent; statement
reasonably likely to elicit a response
o Not custodial interrogation
o Routine booking questions
o Blurts- non responsive to question; not responsive to any question
o Questions during terry stop
o Exigency/public safety
  Waiver and invocation
o Miranda is personal to the suspect
o Suspect and suspect alone has to invoke it
o Miranda invocation of right to counsel is applicable to all custodials interrogation about
all crimes
o Applies to all questions about anything during interrogation
o Once you invoke your right, police cant go any further
o Right to silence is crime specific
o Choice made by person and can be specific on things they want to be silenced
and where they are willing to talk about
o Police has to honor request for everything if they say they dont want to talk at
all
o Once invoked (either silence or counsel), interrogation must cease
o Statements can be used if not under miranda for impeachment if they
voluntarily testify after
o Can also be used to get more evidence
o Generally, police may not reinitiate, except
o Invocation of right to counsel must be unambiguous
o Same with silence
 Police Tactics

6th Amendment
 Right to Counsel
o “In all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of
Counsel for his defence.”
o Usually talking about claims made under post convictions
o Not dealt with under appeal but a motion is filed well after appealed is runned
o See Massiah v US
o Attachment of the rights
 Attached when custodial interrogation is imminent- 5th amendment
 Invoked it at the right time
 For the 6th amendment- attaches when there is a critical stage …
 SOmetimes doesnt attach until indictment
 Sometimes doesnt attach until arraignment
 If either words are used in exam then this is indicating
that there is a critical stage
 To determine whether its a critical stage we look at if the govt
has authority to next step??
 Full weight to bear- when do you really need an attorney
 No coercion element, whats the issue?
 We want to limit the government power in interfering with the
relationship thats been established between defendant and his
attorney
o See Brewer v Williams
o “Deliberate Elicitation”?
 Same as custodial interrogation as the 5th amendment
o Invocation
  No established relationship
o Sixth amendment is offense specific
o If you have hired an attorney and a relationship established
o Defacto implication
 Any contact is interfering with relationship

 Invocation
 ID procedures
o Eyewitness identification; Powerful, but unreliable, evidence
o What people consume
o Lineups
o United States v. Wade
o Pre trial ID admissibility procedure:
o 1) Defendant- impermissible suggestive
o 2) Prosecution- reliable ID