PMBR Criminal Procedure

3-hour lecture

CD Title list

CD1: 4th Amendment; Arrest; Search & Seizure; Procedural Considerations;

Exclusionary Rule; Grand Juries; Fruits of the Poisonous Tree Doctrine; Standing;
Harmless Error; State Action; Substantive Considerations, Reasonable Expectation of
Privacy; and Warrant Requirements.

CD2: Exceptions to the Warrant Requirement; Search Incident to a Lawful Arrest; Stop

& Frisk; Plain View; Automobile Exception; Consent; Other Searches; Methods to Attach
the Admissibility of a Statement or Confession; Voluntariness Approach; Miranda
Approach; and Right to Counsel Approach.

CD3: Fruits of the Poisonous Tree Doctrine; Identification Procedures & Lineups;

Chronology of the Criminal Proceeding; Right to Public/Speedy Trial; Right to
Counsel/Jury Trial; Habeas Corpus; Other Key Areas of Criminal Proceeding; Right of
Confrontation; Burden of Persuasion; Presumptions; Sentencing; and Double Jeopardy.

CD 1

Expect to see 13 criminal procedure questions on the bar exam.

The Fourth Amendment

•

The Fourth Amendment protects unreasonable search and seizures. It requires that

no warrant shall be issued but upon the showing of probably cause.

Arrest

•

An arrest is defined as the seizure of a person for the purpose of initiating

criminal proceeding. It requires seizing the person. It is more than mere custody.
It is more than just taking an individual into custody. It is more than a brief
detention. It is more than a stop and frisk

•

Lookclosely at the facts to determine if there has been a seizure sufficient for an

arrest.

General rule: no warrant is required for an arrest. There are 3 exceptions to this rule.

1. Where the person is arrested inhis/her own house (inside his house).
2. Where the person is arrested inanother person’s house
3. Where the police make an arrest for amisdeamour not committed in their

presence. Where it wasn’t in their presence. (Common law rule)

Common law rules for Warrantless Arrests

Misdemeanor: both police officers and private citizens can make arrests for

misdemeanor where 1). The crime is committed in their presence, and 2). The

misdemeanor amounts to a breach.

Felony: Both police officers and private citizens may make arrests for felonies

committed in the presence. No arrest warrant is required. A police officer may
arrest a person for a felony (without a warrant) not committed in his presence
where he has reasonable grounds to believe the person committed the felony;
however, such an arrest by a private citizen is valid only if the felony was in fact
committed.

Private Citizen: acts at his/her own risk. If the private citizen does not observe a

felony, no warrant is required, only if the felony was in fact committed by the suspect. She may be liable for false imprisonment if the suspect did not in fact commit the felony.

Probable Cause is required for an arrest. This is an objective test. The facts and

circumstances must be such that a reasonable prudent person would believe that the

suspect had committed the crime. We need more than mere suspicion.

C. Search & Seizure. (Most highly tested area).

Substantive approach.

Ask yourself:

1.Is there a search or did no search take place? If there is a search, then we are

dealing with a fourth amendment. If no search, then no fourth amendment.

2.Is there a warrant or is no warrant required?

Procedural considerations

1. Exclusionary rule
2. Fruits of the Poisonous Tree
3. Standing
4. Harmless error rule
5. State action requirement

•

Exclusionary rule is a remedy to deter unlawful police conduct in protecting

against violation of constitutional rights. It is a policy to prevent illegal searches.

•

Definition: Any evidence obtained in violation of the 4th amendment (an unlawful

arrest and seizure) may not be admitted substantially in a criminal proceeding. It
may be however be used to impeach the defendant. It doesn’t apply to grand juries
nor civil proceedings

•

Grand juries. Purpose is to determine probable cause to prosecute. Proceedings

are conducted in secret. 5th amendment to juries have not been incorporated into juried. States that don’t use grand juries are required to file information. Grand jury may consider hearsay evidence.

Note: There is no right to:

1. confront witnesses
2. cross examine,
3. present evidence,
4. counsel,
5. Miranda warnings,

6. be present unless the person is called to appear.

Fruits of the poisonous tree prior illegal police conduct may require that any subsequent

verbal or physical evidence obtained will be tainted by the earlier illegality and thus
found inadmissible. In order for this fruit doctrine to apply, the first search must export
the second search.

A taint may be purged, but it is usually very difficult unless:
(1) the independent source doctrine;
(2) the inevitable discovery rule; and
(3) the attenuated connection principle.

Standing in criminal procedure: The defendant has a possessory interest in the

premises search or the items seized. He has standing to assert 4th amendment if his
privacy rights were violated based on totality of the circumstance. It can also be extended
to the personal effects of an overnight guess.

Derivative standing: fourth amendment rights are

Harmless error rule. Error is deemed harmless if the prosecutor can show beyond

reasonable doubt, that the def would have been convicted either way.

Reversible/plain error: denial of right to counsel, situations of improper or

unconstitutional bias, Or a situation where the jury is chosen in a racial manner.

State action requirement: 4th amendment applies only to the federal government, to the

states and to their entities.

County sheriffs,

Reasonable expectation of privacy

Was there a search? Did the person have an expectation of privacy

in the thing searched?

Was that expectation reasonable?
Look to see if an ordinary person engaged in the same kind of conduct would reasonable
have expected privacy. If there is a reasonable expectation of privacy, then police

intrusion constitutes a search.

Examples, in a telephone booth, dressing room in a department store, or in

the restroom.

If you are told that they are using electronic monitoring, then no expectable of privacy.

No expectation of privacy for ‘items held out to the public’.

1. unenclosed public phone