Criminal Procedure (Arcabascio 2005) Summary of Rules I. Standing a.

In order to contest the alleged illegal seizure, one must have a “legitimate expectation of privacy in the place that was searched” i. Absent that, Δ does not have standing to challenge the seizure b. Right to raise standing is linked to the Possessory Interest i. Can’t be 3rd party c. Overnight guests have a legitimate interest 4th Amend a. 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 places to be searched and the person or things to be seized b. 4th Amend protects people, not places i. Reasonable expectation of privacy 1. Must have two prongs a. Person had exhibited a subjective expectation of privacy (“Is there an actual subjective expectation of privacy?”), AND b. The expectation of privacy is one that society is prepared to recognize as reasonable (“Is it one that society is prepared to recognize as reasonable?”) c. Officer must be in a place he may LAWFULLY be to make the observation BEFORE any 4th Amend test/analysis should be applied d. Seaches without warrants are PER SE unreasonable i. Warrants must be particular and based on probable cause, and signed off by a neutral and detached magistrate ii. Reasonable mistakes do not invalidate the warrant 1. EX: Two apartments on one floor of a building when police believed there to be only one e. Warrantless seizures are PER SE unreasonable f. 4th Amend rights extend within the curtilage of the home i. Cannot arrest someone in their home without a warrant 1. The home is still almost inviolate absent the probable cause to obtain a warrant ii. Person CAN be arrested for felony outside of their home without a warrant iii. 4th Amend does NOT prohibit warrantless arrests for a minor criminal offense, such as misdemeanor seatbelt violation punishable only by a fine g. Open Field Doctrine – NO expectation of privacy i. Outside the curtilage of the home ii. Factors for determining curtilage 1. Proximity to the home 2. Existence of an enclosure around the area (like a fence) 3. Nature of the use of the area 4. Precautions taken to exclude others from the area h. Knock and Announce i. Unless there are exigent circumstances, police are required to knock and announce their presence before breaking into a home

II.

Probable cause to search exists if 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 item subject to seizure is will be found in the place to be searched ii. Exigent circumstances a. bags. reliability/credibility. MUST be contemporaneous with the arrest iv. Society’s need to invade one’s home must outweight the person’s right to privacy iii. Limited to area within the immediate control of the suspect and suspect himself – “grabbable area” 1. In conjunction with vehicles 1. Equipment that is not generally available to the public and obtained intimate information is a “physical” intrusion (Kyllo) j. MUST arrest to conduct search iii. Pretextual traffic stops are acceptable – including any subsequent visual searches Exceptions to Warrants a. consoles. Make sure information presented is not STALE l. SILA includes all containers (including open/closed glove compartments. Informants as basis for probable cause i. No reasonable expectation of privacy in garbage left in such a manner that it is accessible to the public k. the threshold of the house CANNOT be crossed without a warrant ii. Probable cause to arrest exists where the facts and circumstances within the officer’s 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 by the person to be arrest 2.III. How long they have to wait is based on totality of the circumstances (longer for larger properties) 1. SILA – Search Incident to Lawful Arrest i. luggage. or that the investigation would be hindered through destruction of evidence i. Remains with the person – “wingspan” ii. Fair probability that the items will be in the place alleged a. Based on basis of knowledge. Rules 1. Probable Cause Establishment i. Can be conducted even AFTER the suspect is removed from the vehicle and is standing several feet away 3. Absent exigent circumstances. boxes. Police have reasonable suspicion that knocking would be dangerous or futile. Test: Totality of the Circumstances 1. ii. EX: Hot pursuit or destruction of evidence . Exigent circumstances CANNOT be caused by the police iv. Search can be done at the station if the search WOULD have been allowed when the person was detained (does not have to be done roadside) b. Exigent Circumstances i. Do not have time to go get a warrant 1. clothing) ANYWHERE in the passenger compartment 2. and corroboration m.

Stops/Frisks (Terry-type stops) i. need to have suspect submit to that authority ii. Reasonable belief. Requires Probable Cause iii. Officers can frisk a non-arrested suspect for their protection – can ALSO “frisk” passenger compartment of vehicle IF a. Consent i. An investigative stop must be temporary and last no longer than necessary to effectuate the purpose a. Do the police have a reasonable belief that the person consenting has mutual control over the location and can consent f. OR b. Vehicles are those that are readily mobile (EX: motorhome) iv. Valid IF a. Can search the trunk IF officers have probable cause to believe contraband is present d. Not seized merely if police show their authority. Voluntary is tested as “was Δ’s will overborne” – look at Totality of the Circumstances (not coercive) a. Consent to search must be voluntary 1. they may search stuff/car/passenger compartment/trunk ii. Dog sniffs are NOT searches 3. Frisk (is a Search) 1. Something openly being viewed that is “readily apparent that it is contraband” 1. Need reasonable suspicion that the person stopped is armed and presently dangerous 2. Automobile Exceptions i. Plain View i. Police do not have to tell person they have the right to refuse rd ii. They are only conducting an inventory to protect themselves and the suspect’s possessions e. Test: Whether a reasonable person would feel free to decline the officer’s request or otherwise terminate the encounter a. 3 party consent 1. Need reasonable suspicion that criminal activity is afoot. A suspect fleeing raises hunches to reasonable suspicion (mere presence in high crime area does not) 2. Extends exigent circumstances since a car can speed away & evidence will be lost ii. Cannot MOVE things to get a better look without probable cause g. Whether the person giving consent has authority to give consent to commonly shared area (“mutual use”). that suspect is dangerous and may gain immediate control of weapons if they are in the car. based on articulable and specific facts a. Transportation to police station is NOT allowed 3. If police have policy/procedure in place prior to conducting the search. AND . Stop (is a Seizure) 1. based on specific and articulable facts. Inventory Searches i. There is NO standard necessary 1.c.

Police look only in those parts of the passenger compartment where weapons might be placed or hidden. Can be done based on informant’s tip 1. including containers (but NOT the trunk) 4. Police can only look in places a person could hide ii. Special Needs i. EX: drug testing of train engineers ii. Voluntary confessions of mentally ill persons goes to reliability. Waiver of Rights i. Can remove a bullet from a suspect’s body – not unreasonable 5th Amend a. Higher Levels of “Reasonableness” i. it is OFF LIMITS iii.IV. Does not need evil intent ii. Was unreasonable seizure ii. When a reasonable person is deprived of freedom in any significant way 1. Protective Sweeps i. Can only last long enough to complete the arrest and depart the premises iii. Police cannot just shoot a fleeing suspect absent fear for themselves 1. goal is not crime prevention but public safety 1. States can draw blood without a warrant under reasonable circumstances (EX: blood alcohol levels) iii. Cannot be coerced (even by another inmate) e. In highly regulated industries. Suspicionless Standard iii. Tip must be corroborated. Based on totality of the circumstances ii. Police need reasonable suspicion that there is an individual present who poses a danger to those on the arrest scene i. Custody i. Valid ability to “seize” ii. If no interrogation. b. Can be questioned without Miranda warnings when public safety is at risk (EX: “where is the gun you had?” to prevent a child from finding it) c. Confessions must be voluntary – Δ’s will cannot be overborne by police action i. Must knowingly and voluntarily waive rights 1. A person going to the police station voluntarily would not be deemed to be in custody d. Miranda rights must be given upon being placed in custody FOR interrogation purposes i. then no need to give Miranda warnings ii. Police must establish a valid primary purpose for the checkpoint j. Interrogation i. Includes any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police show know are reasonably likely to elicit an incriminating response from the subject 1. not coercion b. quantity and quality of information provided h. Mere silence is NOT enough to waive rights . Checkpoints i. Schools can do random drug testing for athletes (for safety purposes) k. If something is felt during the frisk and it is known NOT to be a weapon.

Not for show-ups on the street at the time of arrest a. If police can establish that. Entitled to counsel in a real physical lineup post-indictment 1. Are inherently suggestive and raise Procedural Due Process Issues i. then it is an “independent source” a. Attaches at point proceedings begin against Δ (adversarial) – at all “critical stages” i. Materials seized in violation of 4th Amend cannot be introduced into evidence b. VI. Reliability is the lynchpin – based on totality of the circumstances ii. Witness degree of attention 3. If there is NO possibility of prison term. Must unambiguously request counsel 2. Suggestive based on: 1. If Δ invokes right to counsel. Usually begins at arraignment b. Not for photo arrays – non-confrontational Exclusionary Rule a. they would have V. Should only be used in emergent situations 2. . then the accused has NO RIGHT to state furnished counsel c. Once a Δ exercises his right to remain silent. Identification i. OR the Δ initiates conversation with the police 1. had the investigation continued on track without getting jumped over by the illegality. Invocations i. Inevitable Discovery 1. Opportunity of witness to view Δ at time of crime 2. Exceptions i. Independent Source 1. If right to counsel was invoked as to FIRST crime. Police need to provide a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights (EX: do not have to tell him that his attorney is on the way) f. Accuracy of prior description of Δ 4. the outcome would have been different” (Strickland) d. interrogation MUST stop until counsel is present. 6th Amend rights can be waived knowingly and voluntarily e. Right to be represented by court-appointed counsel in the event of indigence if possible jail time i. If police can establish probable cause completely independent of the illegality. it also applies to SECOND (different from right to remain silent) 6th Amend a. Time between crime and confrontation b. Level of certainty demonstrated at confrontation 5. Ineffectiveness of counsel standard – “But for the errors of the attorney. he MAY later be interrogated on ANOTHER SUBJECT as long as reasonable time has passed AND a new warning is given ii.iii. Police CAN use informants who ONLY LISTEN and do not ask questions f. Police cannot interrogate Δ once 6th Amend rights attach absent his counsel i. Material can then be re-allowed into evidence ii.

then any material discovered as a result would be admissible c. Purges the taint from the derivative evidence 3. CANNOT be used against any other witness b. Good Faith Exception 1. Attenuation 1. Material can then be re-allowed into evidence iii. After the search. TEST: (objective test) i. Applying officer KNOWINGLY submitted false information to obtain the warrant iv. the search will be considered valid a. There really is no probable cause. But. the warrant was found to be unreasonably issued  search is thus unreasonable 2. Exception will NOT apply IF a. then it is “inevitable discovery” a. Computer Errors 1. Magistrate had to find there is probable cause.VII. OR b. Magistrate is not detached. Fruit of the Poisonous Tree i. Reasonable officer would have relied upon the warrant 3. AND the court employee was responsible for the error. If an officer acts in objectively reasonable reliance on an erroneous computer record and conducts an arrest. If confession is obtained the first time unwarned but uncoerced. Confessions obtained in violation of Miranda are excluded against the Δ during the Π’s case in chief i. AND iii. a second confession after Miranda warnings CAN be admissible c. Fruits of an unreasonable search or seizure CAN be used to contradict the veracity of a Δ to prevent perjury . Evidence uncovered from an illegality (derivative evidence) is not allowed in (Wong Sun) ii. Can be used against Δ for impeachment purposes IF Δ takes the stand ii. if officer reasonably relies upon it facially. AND ii. A break in the chain of fruit 2. eventually discovered the same evidence. Can be broken by time and/or space Miranda Exclusionary Rule a.

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