Crim Pro I Outline Distilled Fall 2010

1. If it is not a search or seizure then there is no 4th scrutiny a. Whether it is a search: i. Did D manifest a subjective expectation of privacy? ii. Is that expectation one that society is prepared to accept as reasonable? b. Not a search: i. Open fields (need warrant or exception to search cartilage ± proximity to home, within enclosure, use of area, steps taken to prevent observation); Access by the public (consensual electronic surveillance, Financial records, pen registers, trash, public areas, aerial surveillance, false friends); investigations that only reveal illegal activity (dog sniffs, chemical testing for drugs; Not urine test bc reveals other info); Electronic tracking devises (not thermal detection devices bc reveal more than what PO could observe on their own); investigative activity conducted by private citizens (Not if acting as agent of govt) 2. If it is a search or seizure then it must be reasonable ± must have NDM rule on whether there is PC a. PC requirement i. Demonstrating PC with informants 1. Veracity ± is informant to be believed? a. Credibility ± general believability b. Reliability ± believable in this circumstance ± track record, motive for accuracy 2. Basis of knowledge ± how does he know what he is talking about? a. Source of knowledge in the tip b. Self-verifying detail 3. Corroboration by PO¶s ii. Informants 1. Paid citizen informant is presumptively unreliable 2. Identified citizen informant more reliable 3. Accomplices are reliable to establish PC and no corroboration required iii. PC to search ± whether there is affair probability that the area or object searched contains evidence of a crime iv. PC to arrest ± whether there is a fair probability to believe that a crime was committed and that the D committed the crime b. Search warrant requirements i. NDM requirement 1. Warrant must be issued by an NDM ii. Must be based on probable cause established from facts submitted to magistrate upon oath or affirmation that there is a fair probability that the area or object searched contains evidence of a crime 1. PC as to location of evidence ± Reasonable cause to believe that specific things to be searched for and seized are located on property to which entry is sought. Depends on type of crime, nature of items sought, suspects opportunity to conceal, and normal inferences about where criminal might hide iii. Must particularly describe the things to be seized
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intimidating potential witness) ii. flight. Sneak and peek i. Can seize items without notice if govt can show a reasonable necessity for the seizure 3. Knock and announce i. Warrant must command officer to: execute within specified time or no longer than 14 days. Instrumentalities c. Warrant must set forth location to be searched with reasonable particularity 3. Can search anywhere warrant permits and anywhere within the building that is large enough to contain the evidence the police are looking for 2. Particularity requirement for describing things to be seized a. return warrant to magistrate designated in warrant e. PC to seize ± must ordinarily be some info that reasonably identifies it. Anticipatory warrant i. destruction of evidence. evidence of crime. Must announce presence to give an opportunity for D to present himself. Particularity requirement 1. Must describe person to be seized with sufficient particularity d. reserves property from destruction. Reasonable particularity is determined by info police could reasonably be expected to know prior to search c. Mere evidence rule ± PC must be examined in terms of cause to believe that evidence sought will aid in particular apprehension or conviction 2. Evidence i.Crim Pro I Outline Distilled Fall 2010 1. Arrest warrant requirements i. Particularity requirement for describing place to be searched a. Covert entry if govt can show reasonable cause to believe that providing immediate notice may have adverse result (endangering life/safety of an individual. but degree of precision will depend on facts of case c. Executing the warrant a. Details of the warrant i. and designate the magistrate judge to whom it must be returned ii. Specificity requirement iii. Warrant must particularly describe the things that the officers can look for and seize b. Fruits of crime b. execute warrant during daytime unless good cause shown. Things that can be seized: a. Contraband d. NDM requirement ii. Must be probable that contraband. protects against violence 2 . or fugitive on premises when warrant is executed f. ID person/property to be searched/seized.

or flight d. Standard = RS that announcing presence under circumstances would be dangerous or futile. Waiting 15-20 secs for a response created exigent circumstances bc RS to believe D was destroying evidence e. No warrant ± need PC ± Watson Rule ii. Arrest in own home or 3rd party¶s home if you¶re an overnight guest i. Payton violation is an illegal search. Emergency circumstances 1. Warrant required a. misdemeanor and officer has reasonable cause to believe that person will not be caught unless immediately arrested or may cause injury to himself/others or damage to property unless immediately arrested b. Remedy for violation of K&A i. Exceptions to the warrant requirement a. likelihood of destruction of evidence. Refused admittance i. Exceptions to notice rule i. Need search warrant . Exigent circumstances after knocking i. No warrant ± need RS that criminal activity is afoot ii. Officer can break open premises after announcing and is refused admittance. No-knock warrants 1. Search must be terminated when all materials described in warrant have been found 4. can just go in w/o announcing ii. Arrest in home of 3rd party i. or impliedly refused admittance (12 sec = refusal. Timing/scope of execution i. misdemeanor committed in officer¶s presence. 3 sec too short) c. Stop and frisk i. No breaking 1.).Steagald ii. If door is open. Search of fixed area generally extends to entire area in which object of search may be found g. Warrantless arrest i. Arrests in public i. Frisk ± reasonable suspicion to believe that D is armed 3 . likelihood of destruction of evidence. absent exigent circumstances ii. Payton ± must have arrest warrant and reasonable suspicion to believe that suspect is home (totality of circ ± care in driveway etc. Exclusionary inapplicable f. Entitled to a prompt (within 48 hours) determination of PC c. or flight iii.Crim Pro I Outline Distilled Fall 2010 b. When is search completed i. No warrant for felony. Steagald violation ± homeowner can suppress bc his 4th rights were violated in the absence of a warrant 5. NDM can issue no-knock if police know there will be exigent circumstances: announcing would be dangerous or futile. not an illegal arrest b.

Crim Pro I Outline Distilled Fall 2010 1. briefcases. ratio of cops to D. or evidence of a crime ii. No warrant ± just PC to believe that car contains contraband. For cars ± grab area determined at time of search e. Protective sweep after arrest ± if cops have RS that area swept harbors dangerous individual (plain view applies during this protective sweep) 2. whether item searched is reasonably accessible d. SIA only when arrestee is unsecured and within reaching distance of passenger compartment (grab area) at time of search OR when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle b. Containers in grab area a. Can¶t search a brief case (can seize it). Arrest leading to exigent circumstances ± when cops have PC to believe evidence is in certain place and situation triggers risk of destruction by cohort¶s. Automobile exception i. Pertains to recent occupants of car iii. Timing 1. Limited to search of suspect and search of his grab area b. Scope 1. If PC to search. Scope 1. Wing span/grab area a. even if arrest + based on PC) ii. Automobiles a. Police may conduct a SIA whenever they arrest a person. 1. but can search containers on a person (cig pack. Timing 1. Search incident to arrest i. cops may conduct a search of that place ii. Look at physical characteristics of D. wallet) 3. fruits. Warrant required to search 4 . Grab area moves with suspect c. Can only frisk for weapons NOT evidence d. Grab area equals the passenger compartment and any containers within c. Grab area ± outside car context . instrumentalities. PC for seizure bc of mobility 2. Exception i.determined at time of arrest NOT time of search 2. Searches of possession within an arrestee¶s immediate control cannot be justified by reduced expectation of privacy caused by the arrest. Can tow pursuant to police procedures and search later iv. can search entire car and all containers that might contain object they are searching for iii. Movable containers not in car ± ie footlockers.

i. S&S on basis of RS rather than PC Special needs searches Roadblocks i. its fine) 2. Excuses arrest warrant and also search warrant where a search of an area must be conduct in order to find and apprehend D 2. j. Police can¶t create exigency (as long as activity is objectively lawful. No suspicion needed for routine border searches iii. No suspicion for permanent checkpoint. Apparent authority 1. Property carried by arrestee Border searches i. h. Balance need for a particular search/seizure against degree of invasion upon personal rights that S&S entails ii. v. Internal checkpoints ± need PC to search at v. Limitations 1.need RS to stop and PC to search Consent searches i. g. Hot pursuit 1. Police and public safety 1. Spouse can give consent to search house iii. No suspicion needed for search of impounded car conducted pursuant to police procedures iii. temporary checkpoints for DUI Inventory searches i. Excuses warrant if delay in obtaining it would result in a significant risk of harm to cops or public (govt must show risk) iii. D must be aware he is being pursued ii. Actual authority 1. RS for non-routine/invasive searches iv.Crim Pro I Outline Distilled Fall 2010 f. No warrant needed if given voluntary and intelligent consent to do so ii. Risk of destruction of evidence 1. Roving Patrols . No suspicion needed for international mail ii. Need RS for individual stops without suspicion ii. Community caretaking function ii. No warrant required to search any container in car if PC to believe it holds evidence of criminal activity Exigent circumstances i. Excuses warrant if evidence will be destroyed in time it takes to get warrant iv. Movable containers in the car 1. l. Police had a prior opportunity to obtain warrant (PC and opportunity to obtain warrant must be clear for this exception to be inapplicable) Administrative searches i. k. Entry valid if officer¶s have reasonable belief that the friend had authority to consent 5 .

Search beyond scope of consent granted is unjustified 2. Not just for weapons 6. Look at facts a. Must inquire to extent of person¶s authorized access when present with ambiguous situation iv. Exceptions to exclusionary rule a. Plain view i. contraband. Ownership of property seize does provide right to object to a seizure of property bc a seizure is an intrusion of an ownership interest iv. If cops have a right to be in particular place and come upon evidence that they have PC to believe is subject to seizure (fruit. can¶t poke and prod b. instrumentality. they may seize it 1. he can seize the object ii. Revocation of consent must be clear and explicit and occur before search is complete m. Can still search belongings of cohab who gave consent v. Presence in home of another 6 . Third party consent where D is present and objecting 1. If officer acting in course of lawful activity can determine by touch that an object is evidence of contraband. Exclusionary rule only applies to a D who establishes that his own personal rights were affected by the govt¶s search and seizure iii. Touch can¶t be beyond scope of legal activity 1. Terry stop ± only pat down for weapons. Physically present inhabitant¶s express refusal of consent is dispositive as to him 2. Ownership does not necessarily confer standing 1. or evidence). Scope defined by object of the search ± standard of objective reasonableness vii. Must have PC to seize an item viewed during course of legal activity and that PC must be readily apparent (PC must exist w/o necessity of a further search n. Withdrawing consent 1. Exclusionary rule a. Ownership of property seized does not necessary provide right to object to a search 2. Refusal ± cannot be used as evidence of guilt to lead to PC vi. SITA ± automatic right to search and can remove objects and open them. but also all evidence obtained or derived from exploitation of that evidence 7. Scope of consent 1. Plain touch i. Not only must illegally obtained evidence be excluded. Fruits of poisonous tree i. Standing ± whether the person seeking to suppress the evidence had his own 4th rights violated ii.Crim Pro I Outline Distilled Fall 2010 2. Standing i.

Independent Source i. Allows intro of evidence discovered initially during an unlawful search if the evidence is discovered later thru a source that is untainted by the initial illegality e.Crim Pro I Outline Distilled Fall 2010 1. reasonable reliance on legislative acts (unless its provisions are such that a reasonable officer should have known statute was unconstitutional). Illegally obtained evidence can be used to impeach statements made by D during his direct testimony ± only for assessing credibility ii. Factors: 1. Overnight guest a. Attenuation i. No legitimate expectation of privacy ± cannot object to illegal search v. Disassociation from property 1. No standing to object to search of that property ± can be searched without warrant vi. intervening circumstances during this time. How much time has passed. clerical errors by clerk of court. No automatic right to challenge a search or seizure simply bc he is a member of the conspiracy that owned the property that was S&S b. Opening the door on direct examination 1. ER does not apply unless there is a substantial causal connection between the illegal activity and the evidence offered at trial ii. Procedural exceptions to exclusionary rule a. Impeachment purposes i. Good faith i. nature of derivative evidence at issue iii. Overnight guest has legitimate expectation of privacy ± can object to illegal search and seizure 2. Inevitable discovery i. flagrancy of 4th violation. length of the causal chain. Exception to the exception 1. When officer includes material info he knew was false or would have knew was false except for reckless disregard for the truth c. error result of negligence attenuated from arrest or search (warrant database improperly maintained) ii. Free will d. Reasonable reliance on decision of magistrates later found unsupported by PC. Coconspirator 1. reasonable reliance on unreasonable warrants ok if reasonable minds can differ on the issue of valid warrant. Govt must show by a preponderance of the evidence that the illegally obtained evidence would have been discovered thru legitimate means independent of the official misconduct 8. Opening the door on cross examination 7 . Temporary guest a.

Attacking the warrant issued i. Procedural aspects of exclusionary rule a.Crim Pro I Outline Distilled Fall 2010 1. Carter instruction ± D is entitled to have judge give jury instruction to not draw adverse inference from D¶s failure to testify d. State can use D¶s witness¶s testimony at a suppression hearing against D 10. Must testify or face contempt of court ii. but only for limited purpose of assessing credibility iii. Immunity i. D can be prosecuted with that 8 . When D testifies on the question of standing at a suppression hearing. suspect confronts the trilemma of truth (giving accurate response). Scope ± Testimonial evidence i. Use/derivative use immunity 1. Biographical info i. If person is forced to give information other than what a witness would provide. the privilege is inapplicable ii. or silence (not answering at all) c. A promise that D will not be prosecuted at all for his testimony 2. Illegally obtained evidence can be used to impeach D¶s testimony no matter when it is elicited. Transactional immunity 1. Impeachment of defense witnesses 1. Griffin Rule ± prosecutors cannot make adverse inference to the jury on D¶s choice to remain silent i. D has limited right to attack truthfulness of statements made in warrant application 1. Occurs when witness is faced with cruel trilemma 1. Timing i. Applies to trial and pre-trial questioning b. Must show that officer engaged in deliberate falsification or reckless disregard for the truth and that this disregard had a material effect on the issuance of the warrant b. including any evidence derived from that testimony 2. ER prevents impeachment of D¶s witness with illegally obtained evidence 9. Where suspect is asked for a response to communicate a fact or belief. Revealing one¶s thought process is testimonial iii. falsity (lying). Challenging a warrantless search i. the govt may not use his testimony against him on the question of guilt/innocence ii. A promise that D¶s testimony will not be used against him. If evidence independent of the testimony is found. Limitation on use of suppression hearing testimony at trial i. 5th amendment and privilege against self-incrimination a. State must prove by preponderance of the evidence that an exception to the warrant requirement was satisfied c. Info attendant to booking must be given e.

length. if you can¶t afford one. Timing i. This is a constitutional rule after Dickerson b. blood samples c. Custody i. humiliation. Voluntariness i. Can be proven through wall of silence between the prosecutor exposed to the testimony and those who bring the case against the D 3. biographical info is not interrogation f. Confronting suspect with incriminating evidence = interrogation iii. Warnings i.Crim Pro I Outline Distilled Fall 2010 a. Psychological pressure a. Questions attendant to custody ie. Involuntary confessions are not valid ii. Testimonial evidence i. use of friends 3. Isolation. Promises of leniency a. Whether a reasonable person in that position believes he is free to leave e. food. Sometimes irrelevant ± there must be police coercion. Miranda a. Force/threatened force 2. dude with hallucinations confessed but later said voices told him to confess did not equal involuntariness bc no police coercion 4. Miranda protects against self-incrimination so it deals with only testimonial evidence ii. anything you say can and will be used against you in court of law. Deception b. handwritings/voice samples. A witness who testifies under a grant of use immunity in one case must receive another grant of use immunity before being forced to testify in another case 11. it impedes the D to make an informed choice 5. When a person is deprived of his freedom in any significant way ie. arrest ii. An involuntary confession is not admissible at trial for any purpose 12. and right to counsel. Test for voluntariness 1. Interrogation i. Right to remain silent.. Miranda is not offense specific ± police cannot initiate interrogation on any crime after invocation of right to counsel 9 . Ie. Not testimonial evidence ± lineups. Forbidden bc when police make specific promise of leniency. Express question or its functional equivalent (words or actions that police should have known were reasonably likely to elicit an incriminating response) ii. Confessions and Due Process a. one will be provided to you ii. Characteristics of the D a. Miranda warnings are an absolute prerequisite to custodial interrogation d.

Eg. given a cooling off period ± 2hrs b. Knowing ± full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it 2. Interrogation must cease during the cooling off period ii.. Right to silence a. discussing the investigation 2. Once invoked. Knowing and voluntary 1.. Right to silence 1. Then D should be given fresh set of warnings and may be asked if he wants to waive 2. Totality of circumstances test of knowing and voluntary waiver c. coercion. Request for counsel must be unambiguous and specific 2. Miranda is not offense specific ± police cannot initiate interrogation on any crime after an invocation of counsel h. Right to counsel a. can I use the phone ii. must be scrupulously honored. Invoking Right to silence or counsel i. or deception ii. Invocation of right to silence must be unequivocal 2.Crim Pro I Outline Distilled Fall 2010 i. Police-initiated interrogation after an invocation of counsel may occur only if counsel is actually present during the interrogation 3. Edwards protection ± when an accused has invoked his right to have counsel present during a custodial interrogation. Police may not interrogate D while in custody unless the accused D initiates further communications and 10 . Right to counsel 1. D must initiate communication 1. Waiver i. Miranda warnings not required for conducting undercover activity g. a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights i. ie. Initiation i. Waiver after invocation of Miranda ± state must prove waiver by a preponderance of the evidence 1. Police may not interrogate a D while in custody unless the accused D initiates further communications and then knowingly and voluntarily waives his Miranda rights b. Not initiating ± can I have water. Voluntary ± the product of a free and deliberate choice rather than intimidation. Test for knowing waiver is whether the suspect actually understood the Miranda warning iii. Invocation of right to silence must be scrupulously honored (2 hrs) ± cooling off period 3.

6th amendment right to counsel a. Cannot deliberately elicit incriminating info from a formally charged D in the absence of counsel ii. and it violates DPC vi. not even for impeachment purposes iii. Eg. Can use post-arrest silence that precedes the reading of Miranda rights for impeachment purposes v. this is fine iii. Pre-Arrest. After the D has been formally charged ± when adversary judicial proceedings have begun c. Deliberate elicitation i. Confession can be used to impeach D who takes the stand but can¶t be used as evidence of guilt ± only to assess credibility ii. D ditched gun during pursuit. e. Public safety exception 1. Post-arrest pre-Miranda silence 1. Informant is not a state agent if the govt is not responsible for the deliberate elicitation d. Offense specific ± police are allowed to question D regarding other crimes if he did not invoke counsel for those other crimes. Police may ask questions reasonably prompted by a concern for public safety without first advising a suspect in custody of the Miranda warnings a. . Can use pre-arrest silence to impeach a D iv. b.Crim Pro I Outline Distilled Fall 2010 then knowingly and voluntarily waives his Miranda rights d. Pre-Miranda silence 1. Timing i. Waiver 11 i. Shatzer ± Edwards protection is terminated 14 days after suspect is released from custody Effect of violation i. Miranda defective violation 1. Cannot be used for impeachment purposes. Involuntary confessions 1. Listening post exception 1. Undercover agents cannot deliberately elicit info from D after being formally charged (compare with Miranda ± undercover doesn¶t need to read Miranda rights) ii. As long as undercover just overhears and doesn¶t say anything. If confession involuntary but not Miranda defective it cannot be admitted at all. Use of undercover officers i. Post Miranda silence 1. cop asked where it was without giving Miranda warnings bc fear of public safety ± that kid would find gun ± D¶s statements were admissible in prosecution¶s case-in-chief 13..

D must then show the ID was unreliable under the totality of the circumstances c. and intelligent f. Limits on right to counsel ID procedures a.Crim Pro I Outline Distilled Fall 2010 i.requires exclusion of the in-court identification d. Cannot be used in state¶s case-in-chief 2. A post-indictment line-up conducted in the absence of a lawyer. Cannot deliberately delay adversary proceedings such as indictment to avoid having to provide counsel b. Identifying suspects ± 6th Amend and Due Process a. 6th right only attaches after formal adversarial proceedings begin ii. Remedy for when ID procedure was unnecessarily suggestive i. Test: 1. D must show ID procedure was impermissibly suggestive a. In person lineup is considered a critical stage of the proceedings. Waiver must be knowing. illegal line-up ± govt must show through clear and convincing evidence that witness has an independent source upon which the in-court ID is based a. violates the D¶s 6th right to counsel 1. Reliability of the ID can cure under the totality of the circumstances 12 .Requires exclusion of evidence of an ID if police suggestiveness created a substantial risk of mistaken ID ii. In court ID would be excluded if it was tainted by the previous. If impermissibly suggestive. voluntary. so attorney must be present iii. Unnecessarily suggestive . Remedy 1. Where 6th¶s right to counsel does not apply to an ID procedure the ID must still satisfy the requirements of the DPC i. Necessarily suggestive under certain circumstances may be OK i. Failure to provide counsel at trial results in automatic reversal of the conviction ii. and without a valid waiver. The rule that in-court ID excluded if it was tainted by previous. Victim may have died before an unsuggestive line-up could be performed 2. Trigger ± D has NOT been charged and there is an ID process issue i. D has no right to counsel at a photographic ID conducted either pre or postindictment 15. Per se rule of exclusion as a remedy for post-indictment out of court ID¶s that take place absent counsel ± regardless of reliability 2. illegal line-up only applies to line-ups conducted to obtain evidence as to the crime charged iv. Can be used to impeach D¶s contrary trial testimony 14. Impeachment purposes 1. Effect of violation i. 6th Amendment i. Trigger ± D has been charged and there is an ID process issue ii. Violation .

D must show that counsel¶s performance was deficient 1. not for discretionary appeals. post-indictment line-up. not for habeas corpus d. Effective assistance of counsel a. Not automatic ± only triggered when the D will be deprived of a fair opportunity to present his defense without expert assistance 17. Degree of police suggestiveness. a trial whose result is reliable 2. Courts are deferential to counsel when its strategy. character of the witness 16. Requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the 6th ± held to reasonableness/custom of the trade standard 2. Preliminary hearing. accuracy of the description. The event must occur after adversarial judicial proceedings have begun and ii. Right to appointed counsel Right to appointed counsel for all felonies and misdemeanors only if any jail is actually imposed Charge Felony assault Misd assault Misd Misd State Max 2 years 1 year 1 year 1 year Actual Sentence $500 fine $100 fine 2 days in jail Probation Counsel? Yes No Yes yes a. sentencing hearing. c. opportunity to view D. Test for IDing those events that are part of a criminal prosecution where counsel¶s assistance is needed i. Establishing indigency i. Right to counsel on appeal i. guilty plea negotiation. Right to expert witnesses i. more overwhelming state¶s case is. Fact specific inquiry. time between the pre-ID opportunity to view and the ID itself.Crim Pro I Outline Distilled Fall 2010 i. D must show that the deficient performance prejudiced the defense 1. Determining reliability factors: 1. Indigent D has right to appointed counsel for his first appeal of right from criminal conviction. Requires showing that counsel¶s errors were so serious as to deprive D of fair trial. ignorance/failing to investigate = defective performance. go to 2nd prong ii. degree of attention. level of certainty. D has the burden to establish indigency and D has no right to appointed counsel at a hearing to establish indigency b. Defense counsel can also deprive a D of the right to effective assistance by failing to render adequate legal assistance ± both must be satisfied i. Govt violates right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense b. The event must be a critical stage of the trial process 1. harder for D to prove 13 .

D doesn¶t need to prove the 2 prong test if circumstances exist that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified 1. D must be warned of consequences of a waiver of counsel 2. D denied right to self-representation after unequivocally invoking that right requires a per se reversal 14 . 6th amend grants to the accused personally the right to make his defense 1. Per se ineffectiveness and prejudice i. Unequivocally state that he wishes to represent himself ii.Crim Pro I Outline Distilled Fall 2010 c. Be competent and understand his rights a. Make a voluntary decision 3. not admitted to bar d. Competency to waive counsel is same as standard for competency to stand trial 4. Self-representation i. Applied when likelihood that any lawyer could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into actual conduct 2. Ex ± conflict of interest with counsel and D.

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