Criminal Procedure

Nota:

• D can't use as a shield to lie on stand

1. Remedy for illegal search/seizure

   Nota:

   • Any evidence obtained in violation of D's 4th Am rights is inadmissible evidence
   1. Limits to Exclusionary Rule
      1. N/A to grand juries
      2. N/A to civil procedures
      3. N/A to parole revocation proceedings
      4. impeachment

         Nota:

         • what illegally obtained evid./confession which were inadmissible in the state's case in chief, may be used to impeach D's credibility if D takes stand
         1. non-mirandized voluntary

            Nota:

            • confessions can be used to impeach a witness.  however, involuntary confession is not admissible for any purpose
         2. fruit of illegal search

            Nota:

            • to impeach D on stand (but not any other witnesses).  all illegally seized evid. may be used to impeach but only D's trial testimony, not testimony of other witnesses 
      5. fruit of unwarned confessions

         Nota:

         • is this fruit of the poisonous tree doctrine?
         1. all evid. obtained or derived from exploitation of illegally obtained police is excluded

            Nota:

            • only for D but not for other D's whose rights weren't violated
         2. Exceptions

            Nota:

            • if original police illegality is a miranda (confession) violation, then unclear if FOPT will apply if the fruit is not testimonial evid. Confession in violation of miranda may be used to impeach both D's testimony (if testifies at trial) and the testimony of other witnesses
            1. independent source
            2. inevitable discovery

               Nota:

               • on preponderance of evidence if officer would have discovered it without violating D's rights.  used very often
            3. intervening acts

               Nota:

               • of free will on the part of D
      6. good faith reliance
         1. will not exclude evidence where police act reasonably to obtain warrant

            Nota:

            • based on: judicial opinion later changed by another opinion; statute of an ordinance later declared unconstitutional; or defective search warrant; clerical error.  *even if info turns out to be false
         2. Limitations
            1. affidavit lacking in probable cause
            2. warrant fails to state place to be searched & things to be seized
            3. officer lied or misled judge
            4. judge wholly abandoned his role
      7. violations of "knock & announce"

1. D is subject to physical restraint
2. warrants not needed in a public place

   Nota:

   • just need probable cause.  police need probable cause at moment of arrest, not later, to arrest and take to station. once probable cause, police can do a full search of person
3. needed to arrest in D's home

   Nota:

   • unless serious crime and emergency (destruction of evid. or hot pursuit)
   • once police have probable cause even if D is improperly arrested at home, D's police statement confession is still valid b/c not fruit of unlawful arrest b/c could have arrested outside of house
   • if D found in home of 3rd party, insufficient expectation of privacy, esp. if conducting business & D has not standing in violation of 3rd party's 4th Am rights
   • summary: home-need warrant not home-need probable cause

1. proper/valid search warrant

   Nota:

   • to be properly executed (by police): 1. no unreasonable delay 2. done after a knock & announcement by police officer (unless officers or evid. would be endangered (ex: exigent circumstances, evanescence, destruction of evid.) 3. person or place searched or seized was in the scope of the warrant
   • search warrant doesn't authorize search of persons not named in warrant, and can detain but not search, but if probable cause to arrest person discovered in premises to be searched, then officer may search him incident to the arrest
   • search manner must not be unreasonable: knock & announcement goes to reasonableness (15-20 seconds is good)
   1. based on proper cause

      Nota:

      • 1. this is the core 2. affidavit establishing probable cause (that seizable evid. will be found in place searched 3. must be recent, not stale 4. reliability of informant, totality of circumstances, even if anonymous, provided enough to support probable cause
   2. precise on its face

      Nota:

      • precise re: place to be searched/items to be seized (no discretion to officer)
      • if 1st Am, description must be very specific no general warrants (can't be too vague, e.g. illegal drugs) anticipatory warrants are okay
   3. issued by a neutral and detached magistrate
2. exceptions (6)

   Nota:

   • see under "Approach to look for*"
   1. search incident to a lawful arrest

      Nota:

      • arrest must be lawful, based on probable cause officer must have probable cause at time of arrest, not after the arrest
      • incident. search must be reas'y contemporaneous in time and place with arrest 
      • scope of search only person and their wingspan can be searched wingspan-within suspect's immediate control/reach (focus on word 'reach' car-when someone is validly arrested in a car, their wingspan is the entire interior of car including glove compartment, but not the trunk
      • officers may make protective sweep of the area beyond arrestee's wingspan if: they reasonably believe accomplices are present or to secure the premises while a warrant is obtained
   2. automobile exception

      Nota:

      • police need probable cause (reasonable grounds to believe that car contains evidence of a crime) before they can search car and trunk
      • may search entire vehicle if have probable cause can search packages, luggage, or other container of the driver or passenger where the evidence might reasonably be found can tow car & search later
      • probable cause can arise after car is stopped, but not after someone is searched  but can't (post facto) find probable cause for car based on search of the person
      • can use these 1st two exceptions together: ex: if police have P.C. to search trunk & find contraband there, can arrest D and incident to that arrest, search back seat. if more drugs found there, may be admissible as incident to lawful arrest. or vice versa. ex: P.C. for arrest, then wingspan search for back seat, entire passenger compartment and containers, if raises P.C. for trunk, then trunk too  
   3. plain view

      Nota:

      • officer must be: 1. legitimately on the premises where  2. he sees the evid. in plain view, AND 3. probable cause that item is evid. of a crime
   4. consent

      Nota:

      • must be voluntary and intelligent
      • limited to scope of the consent consent must be from someone with actual or apparent authority if 2+ people have right to use of property/premises, consent of one is sufficient to bind others (assumption of risk by co-habitants), unless roommate forbidden in certain areas
      • doesn't apply to hotel clerk/guests, landlord & tenant, non-paying guest/owner unless access rights
      • can also have implied consent by blood/alcohol test if driving, airport security search, etc.  watch for scope beyond 9/11 police do not have to warn re: right not to consent
   5. stop & frisk
      1. legal detention (Terry Stop)

         Nota:

         • to stop a person w/out probable cause (i.e. not arrest) officer:  1. needs articulable & reasonable suspicion of criminal activity 2. must reasonably believe that D may be armed/dangerous, and  3. scope of frisk - he may only conduct a protective frisk, limited to a patdown based on the 'plain feel'
         • a full search (i.e. more than protective search) of the person requires probable cause for a lawful arrest scope of the stop: on the street, must be reasonably brief (20 min)
      2. protective frisk

         Nota:

         • scope is limited to a patdown of the outer clothing for concealed instruments of assault (belief that D has contraband is not enough)
         • officer may reach in and seize any item that officer reasonably believes, based on its plain feel (touch) is weapon or contraband, but officer can't manipulate the item
         • properly seized weapons are admissible ask: how much like a weapon or contraband did it seem like from the outside?
      3. usu. police can't stop car unless

         Nota:

         • 1. ind. stop  reasonable suspicion that law violated (like stop & frisk detention) OR includes driver and passengers if reasonable suspicion that D armed and dangerous, search confined to passenger compartment (not trunk, unless probable cause)
         • 2. roadblock stop. cars stopped on neutral, articulable standard, AND stops are designed to serve a purpose closely related to a particular problem arising from cars' mobility
         • notes:  person detained are not in custody for miranda purposes if properly stopped, use of flashlight is proper (only arguments officer's vision)
   6. emergencies/exigencies

      Nota:

      • 1. hot pursuit
      • 2. evanescent evid.  evid. likely to disappear before a warrant can be obtained (e.g. blood sample with alcohol test, scraping under fingernails) more extensive search incident to arrest if evid. in process of destruction or about to be removed from jurisdiction
      • 3. contaminated food / drugs 4. kids in trouble 5. burning fires note: look carefully at the facts to be sure that this exception is really appropriate.  too many student default to this exception when they don't know what else to select, but the facts have to fit this situation
      1. hot pursuit

         Nota:

         • must be a fleeing felon if police are in hot pursuit, they can enter anyone's home in doing so note: look carefully at the facts to be sure that this exception is really appropriate.  too many students default to this exception when they don't know what else to select, but the facts have to fit situation

Nota:

• all wiretapping and eavesdropping requries a warrant
• to obtain warrant: 1. show probable cause re: specific crime 2. name suspected persons 3. describe conversations to be heard 4. limit the warrant to short period of time 5. provide for termination, and 6. return to court

1. Unreliable Ear exception

   Nota:

   • no 4th Am claim everyone must risk that the person they're talking to is unreliable, that the person will either 1) consent to gov't monitoring the conversation OR 2) will be wired

1. State Action
   1. arrest must be by publicly paid police OR
   2. private ind. acting at direction of public police

      Nota:

      • fairly broad esp. where gov't encourages and offers $ reward
      • doesn't include privately paid police unless they are deputized with the power to arrest
      • what to analyze: 1. how do you know s/he is a police officer? 2. that s/he is paid by gov't to enforce law 3. how you know s/he is on duty 4. what public function s/he was performing
2. search/seizure
3. reasonable expectation of privacy (REP)

   Nota:

   • in the place searched or item seized, based on the totality of the circumstances 
   • D's own REP must be violated, standing does not exist merely b/c D will be harmed by intro. of evid. seized during an illegal search of a 3rd person's property (co-conspirator must show his own REP)
   • on exams: this is 1st opportunity to show good factual analysis so do a good job analyzing all 3 factors
   • Automatic Standing. legitimate expectation of privacy anytime you: 1) own the premises searched, 2) live on the premises searched, 3) are an overnight guest in the premises unless non-paying or short-time visitor & police have consent of owner of premises
   • Curtilage is also protected.  factors include: 1. proximity of area to home 2. whether area is enclosed (inside fence around home) 3. nature & uses to which area is put  4. steps taken to protect area from observation
   • NO REP/Standing when: 1. held out to public 2. sound of voice 3. bank account records held by bank 4. anything seen across fields 5. anything seen by flying over (but no night vision binoculars) 6. open fields beyond curtilage 7. handwriting style 8. paint on outside of car 9. abandoned items (trash) 10. drug sniffing dogs 11. prison cells 12. phone records 13. vehicle VIN 14. abandoned property
   1. location of where D was found

      Nota:

      • look at where D was found - at home, at his office, in his car, in the street, etc. 
   2. location of the item seized

      Nota:

      • pocket, briefcase, trunk, in D's dresser, etc
   3. D's efforts to maintain privacy

      Nota:

      • covered windows, opaque glass, etc.
4. Approach to look for*
   1. does D have 4th Am right?
   2. did police have proper/valid search warrant?

      Nota:

      • if warrant was proper/valid, was it properly executed?  if warrant not proper/valid, try good faith defense to get it in
   3. does it fit w/in 1 of 6 exceptions

      Nota:

      • 1. search incident to lawful arrest 2. automobile exception 3. plain view 4. consent 5. stop & frisk 6. emergencies/exigences (hot pursuit, evanescent evid, contaminated foods, kids in trouble, burning fires)

1. waived if D takes stand

   Nota:

   • to testify in own defense (factual assertion/discloses info)
2. anyone can assert in any case
3. must assert the very 1st time asked
4. must be claimed in civ proceeding

   Nota:

   • to prevent it from being waived in subsequent criminal proceeding

Nota:

• scope includes lie detector, custodial police interrogation
• doesn't include  non-testimonial evid. like hair, blood, urine samples, DUI, videotape, and demonstrative evid. (e.g. limp)
• during trial unconstitutional for P to make 

1. same applications as **
2. Miranda
   1. Once D subject to custodial interrogation

      Nota:

      • an incriminating statement is only admissible, by P for evid. in chief, after D advised of Miranda rights
      1. In Custody
         1. deprived of freedom in any significant way

            Nota:

            • objective standard - whether reasonable person in suspect's position would believe he's in custody, would feel prohibited from leaving
            • doesn't just mean 'in jail' or even 'arrested' more likely custodial, in police station/car but voluntarily complying with police request to come to station is not custody usu. not custodial - routine traffic stops
      2. Under Interrogation
         1. words/actions by paid police reasonably likely to elicit incriminating response

            Nota:

            • more than asking questions objective standard
            • does not include non-testimonial communication (e.g. lineup, handwriting, voice sample, blood sample)
            • no miranda violation if D doesn't know he's being interrogated by gov't agent  confession to cell mate doesn't require miranda b/c no coercion (unless cell mate acting under police direction and D knows)
   2. Miranda Rights (4)
      1. Right to remain silent
      2. Anything said can be used against him in court
      3. Right to the presence of an attorney
      4. If can't afford attorney, one will be appointed
   3. If Miranda rights given (results)
      1. "I want a lawyer"
         1. no questioning on any crime unless D initiates

            Nota:

            • if D initiates, police must re-warn and get waiver
      2. "I want to remain silent"
         1. police can't continue interrogation, but can ask about other crimes

            Nota:

            • If D invokes right to silence, can't continue/renew interrogation police can't question on charged crime but can question on unrelated crimes later once D has attorney b/c 5th Am right to counsel isn't claim specific and 6th Am is
      3. if custody & interrogation police must give miranda and wait for waiver before questioning
         1. waiver must be unambiguously exercised

            Nota:

            • waiver must be knowing, intelligent, and voluntary no waiver from silence, shoulder shrug, etc.  burden on P to show waiver, can be oral, but not silence D need not be informed of all subjects of interrogation
            • note:  on exam, if discuss 5th Am right to counsel, also discuss 6th Am (& vice versa) but under separate headings
   4. Defenses
      1. spontaneous statement

         Nota:

         • blurts (no interrogation, no miranda required)
      2. waiver
      3. use for impeachment (if voluntary)
      4. not custodial

         Nota:

         • routine traffic stop, probation interviews

1. Involuntary
   1. cannot be used for any purpose

      Nota:

      • even impeachment 
      • violates the 14th Am Due Process
2. Voluntary
   1. by D's free will

      Nota:

      • rational intellect no official compulsion/coercion confession to federal agents admissible if being held solely on state charges
   2. prosecution must prove

      Nota:

      • prove by totality of circumstances e.g. age, education, mental clarity, setting, intoxication, duration preponderance of evidence note: look for word "blurt"

Nota:

• if discuss 5th Am right to counsel, also discuss 6th Am (& vice versa) but under separate issue headings

1. 5th Amendment after Miranda warnings in custodial interrogation
   1. prevents any questioning at all

      Nota:

      • if D initiates, must re-warn and get waiver
   2. not offense specific

      Nota:

      • can't ask about anything
   3. burden on D to claim

      Nota:

      • the burden is on D to claim right to counsel unequivocally (must be unambiguous and specific)
2. 6th Amendment offense specific
   1. after formal proceedings

      Nota:

      • after D charged applies if risk of imprisonment or D being charged with felony and at all critical stages after formal proceedings begin at any post-charge line-up or show up
   2. burden on police to get waiver

      Nota:

      • unless waived, can't question re: charged offense outside presence of counsel (but can question re: unrelated, uncharged offense)
      • re: Excobedo violation: paid gov't informant in D's cell and confession obtained while D denied 6th Am right to counsel (after D charged/indicted), where 'rat' deliberately elicits info 
      • compare: doesn't apply to 5th Am Miranda violation b/c D doesn't know 
      • exam: if discuss 5th Am right to counsel, also discuss 6th Am (& vice versa) but under separate issue headings

1. denial of a right to counsel
   1. only post-charge lineups and show-ups give rise to right to counsel

      Nota:

      • but no right to counsel at showing of photographs/videos of D for limited purposes (unless likely to produce misidentification (due process)
2. denial of due process (14th Am)
   1. ID techniques

      Nota:

      • exam: they may not give you many facts re: the lineup so use an example to illustrate this point (e.g. is 5'2" tall and the others in the lineup are 6'5")
      • remedy - exclude the in-court ID
      • gov can defeat due process claim by showing through clear and convincing evid. an independent source of ID, independent of the line-up (i.e. ample opportunity for victim to observe person at the time of the crime)
      1. so unnecessarily suggestive
      2. substantially likely to produce misidentification

1. if more than 6 months

1. minimum 6

   Nota:

   • and must be unanimous
2. no fed constitutional right to unanimous 12 person jury verdict
3. D has right to representative cross-section

   Nota:

   • of community in the county 'venire' (jury pool)
4. no race/gender peremptory challenges

   Nota:

   • up to judge re: genuineness of explanation violates equal protection

1. length of delay
2. reason for delay
3. whether D asserted his 6th Am rights
4. any prejudice to D

1. peremptory challenges
   1. state may not automatically exclude for cause

      Nota:

      • all prospective jurors who express a doubt about the death penalty
      1. test for exclusion/cause: whether juror's views would prevent or substantially impair their performance

         Nota:

         • of their duties and if exclusion results in a death qualified jury, no infringement on D's constitutional rights
2. Constitutionality
   1. any death penalty statute preventing D a chance to present mitigating facts/circumstances is unconstitutional
      1. there can be no automatic category for imposition of the death penalty
   2. state may not, by statute limit D's mitigating factors
      1. all relevant mitigating evid. must be admissible or the statute is unconstitutional
   3. only a jury (not judge) may determine aggravating factors justifying death penalty

1. elements
   1. voluntary
   2. judge must address D personally and on the record

      Nota:

      • to inform D of: 1. the nature of charge 2. maximum authorized sentence and any mandatory minimum  3. his rights to plead not guity 4. by pleading guilty, D is waiving his trial and all constitutional rights that would accompany that trial
2. withdrawal after sentence
   1. plea was involuntary
   2. lack of jurisdiction by court taking plea
   3. ineffective assistance of counsel
   4. failure of prosecutor to keep an agreed upon plea bargain

1. attaches

   Nota:

   • once jeopardy attaches, D may not be retried for same offense
   • can't re-try for greater offense unless:  1. greater offense had not occurred at time of prosecution for lesser offense, OR  2. evid. for greater offense was not discovered despite due diligence 
   • watch for conspiracy - can still be tried even if overt acts of that conspiracy have already been tried
   1. at a jury trial when jury is sworn
   2. at a judge trial when 1st witness is sworn
2. doesn't attach
   1. in civil, gen. subsequent civil action
   2. if first trial dismissed on a technicality and not on it's merits
   3. separate sovereign (fed/state)
   4. D broke plea bargain
   5. 1st trial ended in hung jury
   6. at a prelim hearing
   7. to a grand jury from returning an indictment

      Nota:

      • when a prior grand jury refused to do so