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CRIMINAL PROCEDURE NOTES

01: 13 JUNE 2011

RIGHT TO COUNSEL UNDER THE 6th AMENDMENT
Breakdown of the Supreme Court: Side for Government: Roberts, Scalia, Alito & Thomas Side for the Defense: Sotomayor(?), Kagan(?), Ginsberg & Breyer Could go either way: Kennedy How a Case Gets to SC: Writ of Certiorari: State/Federal cases picked up by SC Writ of Habeus Corpus: two surnames (one of the names is the warden at the prison) Terms: Per Curium: All 9 Justices agree & one writes the opinion Collateral Attack: Writ of Habeus Corpus - moves sideways from State to Federal court. POWELL The defendant has a fundamental right to counsel in federal cases. Appointed attorney must be given enough time to make an effective defense BETTS v. BRADY Cites Powell, but concludes the opposite - counsel is not a fundamental right. Dissent: Black, Douglas & Murphy - Black: the 14th makes it applicable to the states GIDEON v. WAINWRIGHT Black: If it’s fundamental under the 14th (Due Process), it’s applicable to the states. 21 States wrote Amicus Briefs against Betts and for Powell Later applied to misdemeanors (anything facing jail time) Ω SCOTT v. ILLINOIS (BAD CASE) Rule: Your right to counsel is only violated when you’re denied counsel & taken into custody. BAD because if you didn’t get jail on your first offence, it’s pretty much mandatory on second offence/conviction. Might as well have been jailed on the first one ALABAMA v. SHELTON Suspended sentence, denied counsel, violates probation, jail time - violates 6th Amendment All unnecessary if Scott had been decided correctly. Ω CURRENT “BRIGHT LINE” RULE: Must be charged with a crime. Were indigent Requested attorney Denied attorney Convicted & Incarcerated Then, you need not show prejudice to get a reversal. U.S. v. GONZALEZ-LOPEZ Later case expanded this right to include out-of-state counsel. If denied, they need not show prejudice to get a reversal KIRBY Right to counsel only begins when the state begins “adversarial judicial process” - arraignment (lineup before this didn’t require an attorney)

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CRIMINAL PROCEDURE NOTES
GOUVEIA Right to counsel doesn’t attach until after arraignment. Miranda doesn’t trigger to right. “BRIGHT LINE” RULE FOR WHEN RIGHT TO COUNSEL KICKS IN 1. First court appearance OR 2. Indictment by grand jury FARETTA ∆ has the right to reject his right to counsel MALLOY v. HOGAN Carried right to counsel to the states. LEGAL FALLACIES There is nothing in the Bill of Rights that states that a jury must be comprised of twelve. That’s assumed, but the courts have decided that it’s no fewer than six. The Constitution does not require a unanimous jury, either. For some states, it only requires a majority. “Proof Beyond a Reasonable Doubt” isn’t in the Constitution, but it is inherent in Due Process. ROTHGERY Right to counsel kicks in at first court appearance because he was looking at being held by the government Ω First court appearance triggers Right to Counsel Ω Grand jury indictment also triggers PEOPLE v. LOPEZ California case that requires the judge to go through a dialogue with a defendant looking to represent himself (see handout) INDIANA v. EDWARDS ∆ can be competent to stand trial but not competent enough to represent himself. SC allowed Indiana to set their own standard for self-representation RULE ∆ can refuse counsel if he does so knowingly and willingly and has been found competent to stand trial STRICKLAND “Ineffective assistance of counsel” (IAC) doesn’t necessarily play if the attorney made a strategy call that ∆ didn’t like (Fun fact: Strickland was the warden in this habeus case. ∆’s name was Washington) O’Conner said to show IAC, ∆ must show: 1. Must show that counsel representation fell below an objective standard of reasonableness 2. Must show prejudice - a reasonable probability that, but for professional errors, there would have been a different result in the case Note: There is a significant difference between claiming IAC (must show prejudice) & Denial of Counsel 6th Amendment violation (no prejudice) ROMPILLA Counsel accused of missing potentially mitigating information in ∆’s file (5-4) was IAC (Extremely speculative).

“Sleeping Lawyer” might as well not be there at all (very rare) “RIGHT TO COUNSEL” ON THE APPELLATE LEVEL DOUGLAS Guarantees counsel on appeal ROSS SC says the free attorney is only good for the first appeal (practical limit) HALBERT Guilty plea still entitled to an attorney for the appeal GILBERT ∆ entitled to free transcript for appeal (transcript necessary for the appeal) AKE Right to Assistance of Expert Witness: ∆ is entitled to a psychiatrist MEMPA Right to Counsel in Quasi-Criminal Proceedings: Suspended sentence revoked. Claims he didn’t commit alleged parole violation (new crime) 2.CRIMINAL PROCEDURE NOTES CRONIC 2 Ways to get IAC (must show prejudice) into 6th Amendment Denial of Counsel (prejudice is presumed) category: 1. right to attorney at deferred sentencing MORRISSEY Right to Minimum Due Process: Parolee has a right to be informed about alleged violation Has the right to see documentation and a hearing GAGNON Probationer/Parolee attorney exceptions: 1. There are substantial reasons which justified/mitigated the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present GAULT Juvenile proceeding.no attorney for parents because the focus is the kids (rescuing them) because the kids/parents aren’t being tried for a crime . even though it’s characterized as a “delinquency case”. he is still entitled to an attorney because it’s a criminal proceeding where he is facing confinement MIDDENDORF In a Summary Court Martial. unfit home . you’re not entitled to attorney even though you could get 30 days. if appointed counsel doesn’t have time to prepare an effective defence. it’s the same as not having counsel 2. On in General CM LASSITER Dependency case.

(30% of States were opposed to Exclusionary Rule) MAPPS (EXCLUSIONARY RULE) 1961 Made Exclusionary Rule applicable to the States.R. Kagan AGAINST: Alito. Civil remedies are ineffective because damages are usually nominal and juries are reluctant to award to the convicted. Thomas HINT: Address your argument to Kennedy MBE STUDY GUIDE Not one he recommends. Society has to accept the fact that some guilty people because of 4th Amendment enforcement. Scalia. though) "Unfit Home" are civil proceedings are not criminal.D. However. POWELL two days is NOT enough time to prepare an effective defense. IN QUASI-CRIMINAL PROCEEDINGS) 1974 Exclusionary Rule does not apply in Grand Jury testimony. so you're not entitled to counsel SEARCH & SEIZURE WOLF (EXCLUSIONARY RULE) 1949 Back-alley abortions. therefor. Roberts. Breyer. it's the same as not even having counsel.CRIMINAL PROCEDURE NOTES 03: 21 JUNE 2011 NEW CASE: J.B. 2011 5-4 Decision: FOR: Sotomayor. but the review session will have practice questions. this was held only for federal courts. Special/General Court Martial: Absolute Right to Counsel (not in Summary CM. Juvenile proceedings are so similar to criminal trial that they have a Right to Counsel.) First Court Appearance 2. it's the same as being denied 6th Amendment Counsel. Established that Items seized in warrantless search of a person/premises are not permitted in federal court (Weeks Doctrine). MUST SHOW PREJUDICE (prove the outcome would have been different if counsel was effective). If performance was deficient by objective standard. . Otherwise. Ginsberg.) Grand Jury Hearing MIRANDA DOES NOT TRIGGER RIGHT TO COUNSEL! Can decline Right to Counsel if CT find waiver is intelligently and knowingly made AND that he's mentally competent to represent himself IAC: Has a right to the attorney being EFFECTIVE (STRICKLAND). STUDY THE RULES!! REVIEW 6th Amendment Right to Counsel: Entitled to Counsel (+1 appeal) Entitled to Transcripts Entitled to Professional Witness Triggered by 1. Excludes from a criminal trial illegally obtained evidence if that evidence was acquired in violation of the 4th Amendment. Kennedy. Right to Counsel in Quasi: no right to counsel in parole hearing. CALANDRA (E.

but they must be American citizens. because the seizure was linked to inadmissible evidence. Exclusionary Rule applies. not to private citizens (burglar finds pot plants. Exclusionary Rule doesn't apply. Exclusionary Rule doesn't apply. '58 PLYMOTH (E. IN QUASI-CRIMINAL PROCEEDINGS) 1965 If vehicle seized in a criminal case (drugs found in car) where evidence was illegally obtained. Exclusionary Rule doesn't apply because the arresting officer operated in "good faith". tells cops . not criminal). even if the judge signed the warrant. Exclusion Rule doesn't apply."Good Faith" applies because the error was not made by law enforcement. evidence obtained (even if illegal by U.evidence is admissible). IN QUASI-CRIMINAL PROCEEDINGS) 1998 Exclusionary Rule does not apply to parole revocation/probation hearings.CRIMINAL PROCEDURE NOTES SCOTT (E. LEON ("GOOD FAITH" EXCEPTION TO EXCLUSIONARY RULE) 1984 If police are acting on a warrant they believe to be accurate. but they only have a modified drug warrant (left in the bit about it only being about a drug search) . HERRING Faulty police record keeping (recalled warrant) leads to arrest/seizure. "good faith" doesn't apply. THE EXCLUSIONARY RULE IS DESIGNED TO PROTECT US FROM GOVERNMENT 4th Amendment ONLY applies to government agents. . standards) is permissible. Exclusionary Rule doesn't apply. cop pulls guy over and finds drugs in arrest . LOPEZ-MENDEZ 1984 Same inadmissible evidence in criminal trial can be used in a deportation hearings (Illegal Alien). Exclusionary Rule doesn't apply. Exclusionary Rule applies.R.warrant was defective. KRULL Officer relies on a warrantless search statute currently on the books. but it should. the Exclusionary Rule doesn't apply. VERDUGO-URQUIDEZ (EVIDENCE OBTAINED IN MEXICO) "The People" are protected. GROH Glaring error in warrant means "good faith" doesn't apply.S. but the cop relied on the judge in good faith.reliance on law as it existed at the time constitutes "good faith". but statute is repealed . Not necessarily a "bright line" rule . EVANS (ERROR OF NON-POLICE) 1995 Clerk doesn't update recalled warrant. Exclusionary Rule doesn't apply. Reliance on probable-cause determination must be reasonable. Therefore. JANIS 1976 Cash seizure is subject to tax action (civil. (Bad case) Muir's Opinion: Encourages sloppy record keeping by police. SHEPPARD 1984 Homicide search.EXCEPTION: If affidavit is skimpy or full of shit.R.

Objective.) It provides a "reasonable expectation of privacy" (REOP).) The 4th Amendment protects intangible things like sound waves.) GREENWOOD (REOP) 1988 Is there an reasonable expectation of privacy in garbage? Maybe. including VIN. (Remember the name of this case for the test. and the steps taken by the resident to protect the are from observation by people passing by. Four important holdings: 1. SODAL 1992 No search if you seize the whole house? No. CARDWELL (EXTERIOR OF VEHICLES) 1974 Exterior is NOT protected. 3. SEE 1967 4th Amendment also protects places of business WHAT DOESN'T THE 4th AMENDMENT PROTECT? OLIVER (OPEN FIELDS AND SKIES) 1984 House is protected. Flying at such a low altitude might be a violation of 4th Amendment even if it's within FAA rules. if it's visible from outside. Curtilage has 4 factours: proximity of the area near the house. PLACE 1983 4th Amendment protects Freedom of Movement (detained with no lawful right to do so). KARO & KNOTTS Beepers are acceptable. It depends where it is (house & curtilage-yes. GPS devices are still questionable. prison cell or the back of a patrol car. not places. whether the are is within an enclosure surrounding the home. 4th Amendment protects possessions as well. RILEY (SKIES) 1989 Police helicopter observing at 400'. 4. 2. HUDSON (DETENTION FACILITIES) 1984 There is no 4th Amendment protection in a jail cell. (3 month GPS monitoring is too invasive) . reasonable standard in evaluating REOP. nature of the uses to which the area is pit. Bright line rule: 4th Amendment doesn't protect your airspace. but you could sue the cops for trespass. Court doesn't say where to draw the line. PLACE (DOG SNIFF/BAGS) Exterior of bag not protected.) You don't need to physically trespass to violate 4th Amendment. but it protects people IN places.) It protects people.CRIMINAL PROCEDURE NOTES WHAT DOES THE 4th AMENDMENT PROTECT? √ KATZ ("REASONABLE EXPECTATIONS OF PRIVACY") 1967 Phone booth case. but the yard may not be. street side-probably not).

but you don't reference "Prongs" anymore. coupled with the police efforts to corroborate info. If the "whole picture" (totality of circumstances) suggests that the informant info. Needs police corroboration for predictive behavior. No police legwork to verify.CRIMINAL PROCEDURE NOTES BOND (SQUEEZES) 2000 Squeezing exterior to determine contents is an illegal search. √ AGUILAR (SUPPORT WARRANT BASED ON INFORMANT INFO) 1964 "Barebones Warrant" (without hard facts to back it up) is deficient. √ "Aguilar-Spinelli" 2-Pronged Test: V+B+C √ GATES 1983 Established "totality of circumstances" approach that replaced Aguilar-Spinelli 2 Prong Test. it does NOT violate the 4th Amendment. you still evaluate V+B+C. What is the basis (source) of informant's knowledge? (Off-hand remark at a bar?) √ SPINELLI 1969 2 Prongs can be supported by police legwork (corroboration). SMITH (PEN REGISTER) 1979 A log of incoming & outgoing calls does not violate 4th Amendment. thermal imaging does NOT violate. the the Court should approve issuing the search warrant (fair probability that the contraband or evidence sought to be seized is currently at the place to be searched). 04: 23 JUNE 2011 FINAL EXAM Thursday 04 August Full Course Review: 28 July (last class) DRAPER (SUPPORT WARRANTLESS SEARCH BASED ON INFORMANT INFO) '58 1. QUON (TEXT MESSAGES) 2010 Review of text messages in government-issued phone doesn't violate 4th Amendment DOW CHEMICAL (SENSORY ENHANCING EQUIPMENT) 1986 Satellite imagery requires sensory enhancing equipment that. Veracity (credibility) of informant 2. (Basically. KYLLO (THERMAL IMAGING) 2001 As long as it doesn't penetrate the interior . 2 Prong Test for Informant Info-based Warrant: 1. . if available to the public (even if it's costprohibitive) and doesn't penetrate the interior.) The evidence sought to be seized is CURRENTLY at the place to be searched (10 days). 2. Agent has used informant before and never been given false information (credibility track record). Probable cause can based on hearsay (paid informant's statement) if it is reliable & trustworthy. is reliable and trustworthy.

record checks. you can get disclosure of the identity.) . observations by police and official channels (APBs and BOLs) can go to probable cause. etc. ANDREAS 1983 Once a package has been lawfully opened. set in their state constitution (Article 14). If triggering event occurs (delivery of a package).CRIMINAL PROCEDURE NOTES Veracity: What is known of the informant's credibility as the reporter of information (motive to lie? past track record of accurate info? anonymous? Basis of Knowledge: What underlying facts does the informant provide from which the magistrate can conclude the informant has some firsthand knowledge of the target's activity is related to crime Corroborate: What efforts are made by the police to check the information supplied (surveillance. assume a good warrant has been signed by a judge. (For the test. (Only exception to warrants describing current presence of drugs. but if you delete that from the affidavit and probable cause still holds up. but rather only the drugs found during the search warrant. just a good working knowledge of the law. UPTON 1984 "Totality of Circumstances" rejected by Massachusetts because their standard. It must have a bearing on probable cause to invalidate a warrant. there's a fair probability that the crime will occur. you can force disclosure of informant's identity. √ GRUBBS (ANTICIPATORY WARRANTS) 2006 As long as the warrant describes the future time/place.) 05: 28 JUNE 2011 COOLIDGE ("NEUTRAL & DETACHED") 1971 Prevent bias in the issuance of warrants by using a "neutral & detached" party (not necessarily a judge) SHADWICK 1972 Need not be a lawyer or judge. provided it's in their state constitution. the lie is inconsequential. but the States are able to set their own higher standards of Due Process. makes sure you look at what he's charged with .) The Supreme Courts defines the minimum standard of Due Process. WHITELY (OTHER SOURCES OF PROBABLE CAUSE) 1971 Crime victim/witnesses. it's a good warrant. Prosecution will get around it by not charging the controlled buy. (Criticism: allows cop to perjure himself w/o penalty) √ McCRAY 1967 If the informant is a material witness to any of ∆'s charges. On the test. is a higher Due Process standard. Must provide sufficient information to evaluate both sides of probable cause. this was the informant is immaterial to the charges and you can't force disclosure. it loses its 4th Amendment privileges.if it's the controlled buy. FRANKS 1978 If you can show that the cop deliberately lied in the affidavit (reckless disregard for the truth).

However. HUDSON (KNOCK NOTICE EXCEPTION) 2006 Knock Notice is designed to protect both police and resident. ZURCHER 1978 A subpoena gives an opportunity to destroy documents. clergyman or newspaper).DAY OR NIGHT) 198 4th Amendment doesn't dictate time to serve. TEST: Probably cause & Terry stops are more complex and need multiple paragraphs in analysis. they can reject KN. Knock Notice can be waived in the warrant if the suspect is believed to be armed & dangerous. Unanimous rule. A search warrant seizes them before they can be destroyed. Can't search their person (YBARRA) unless they believe they have a weapon. if police here something (flushing on a narc raid). SUMMERS 1981 Police have right to detain all occupants when a search warrant is being executed on a property for as long as it takes to perform search. Underline Gates: The 4th Amendment requires that warrants be based on probable cause.seize items that show Dominion & Control of the property to tie ∆ to the house & evidence seized. YBARRA (DETENTION & SEARCH OF PERSONS ON PREMISES) 1979 Probable Cause doesn't extend to customers at a bar simply because they're at a place where a crime may have been committed. A special master (usually a retired judge) can be appointed when dealing with companies who handle confidential information (doctor. Statutory. MENA 2005 Police may not only detain but can also handcuff occupants when performing a search of a property. meaning that. Also. GO-BART & HORTON Description of things to be seized can be a little vague and still be good. For officer safety and discover DNC linking detainees to property. based on the totality of circumstances. The others don't. Otherwise. they cannot subpoena them. Must give adequate time for them to answer the door. GOODING (TIME OF EXECUTION . (Most warrants have a DNC Clause . A search warrant avoids that.CRIMINAL PROCEDURE NOTES STEELE & GARRISON Must describe the property with reasonable detail. √ WILSON (KNOCK NOTICE) 1995 Knock Notice is an integral part of the 4th Amendment (even though it's not in there). lawyer. YBARRA+SUMMERS+MENA ANDERSSEN (S/W IMPACTING 5th AMEN RIGHTS) 1976 If police seize incriminating papers/records. the magistrate must have sufficient evidence to conclude that the evidence to be seized is CURRENTLY . you're required to incriminate yourself. √√ Must be able to show if probable cause meets the Gates tests.

ATWATER 2001 With probable cause. WATSON GIVES POLICE DISCRETION FOR WARRANTLESS ARREST. it's not a violation of 4th Am. Classify the person supplying the information of an informant and analyze veracity & basis of knowledge.) Not the same in houses because it's not a very confined space. SCOTT 2007 Use force that is necessary to the circumstances. Friday kick out. the relevant factors to consider are veracity. √ McLAUGHLIN 1991 An arrested individual should receive a probable cause hearing without "unreasonable delay" (within 48 hours). When the information is in substance from an informant. an officer can arrest on petty crimes. BUT McLAUGHLIN IS A SAFETY VALVE THAT MAKES THEM PROVE PROBABLE CAUSE TO HOLD THEM. 6: 30 JUNE 2011 . but if the officer does it anyway. (Doesn't mean everyone will ultimately be charged. GARNER (REASONABLE FORCE) 1985 In making a lawful arrest.CRIMINAL PROCEDURE NOTES at the location to be searched. MOORE A state statute can forbid arrest for certain offenses. (2nd sentence). basis of knowledge and corroboration by police (3rd sentence). there is probable cause to believe everyone in the car could have access to the drugs. Must be in a PUBLIC PLACE. √ CHIMEL (PERMISSIBLE SCOPE OF SEARCH "INCIDENT TO ARREST") 1973 Can search only for weapons & preserve evidence. Wednesday arrest. SIX EXCEPTIONS FOR SEARCH WARRANTS I-Incident to Arrest S-Stop & Frisk P-Plain Sight A-Automobiles C-Consent E-Exigent Circumstances √ WATSON (WARRANTLESS SEARCHES-INCIDENT TO ARREST) 1976 The police can make an arrest without an arrest warrant if it's based on Probable Cause. hearing Monday = 5 days). PRINGLE (ARRESTING ALL PASSENGERS IN AUTOMOBILE SEARCH) 2003 Because a vehicle is such a confined area.) Search must be within the scope of "within the sphere of access" (arm's reach-within immediate control of arrestee). "3 Day Kickout" if they don't file charges on the 3rd day (not counting arrest day & weekend). Anything beyond this (other parts of the house) requires a warrant. (Arrest in the home is subject to different rules. the officer is authorized to use deadly force only if suspect is a serious threat to public/police. Sometimes doesn't count the day of the arrest (arrest Thursday.

it's inadmissible. etc. Opinion: The most powerful pro-police decision the SC has made. Cupp: Reason to arrest but don't. as self-incrimination doesn't pertain to these items. "Can extend only to places where a person can be found" and must be a "cursory" search. Don't need probably cause. it is reasonable to request identification (whether it's a crime to not provide it is left to the states). urine. 2. BUIE (PROTECTIVE SWEEP) 1990 Police have a right. but it's okay to bring a victim to the scene of a search to identity. Also protects jail from false claims of theft with an inventory. search is legal. SEGURA & McARTHUR It is permissible to secure a location while waiting on an anticipated warrant. empowering. If not. for their own safety. Police can seize an individual if suspicion is based on articulable facts ("reasonable suspicion" drawing on events witnessed and experience). SCHMERBER. No 5th Am violate for taking samples. the evidence is admissible. KNOWLES & CUPP (WHAT CONSTITUTES AN ARREST?) Knowles: The state can not dictate Due Process at a standard lower than the Federal standard. and if removal is necessary to save the life. Subjective intent SHOULD b HIIBEL (WITHHOLDING IDENTITY FROM POLICE) 2004 If person is suspected of criminal activity. EDWARDS. he can monitor their movements (follow them). either. to extend the search to look for other occupants hiding inside. LAFAYETTE. only taking as long as it takes to arrest the individual.CRIMINAL PROCEDURE NOTES WILSON 1999 Bringing the press into a crime scene is forbidden. semen. he is subject to an "intake search" to prevent weapons & narcotics from coming into the jail. you lose your 4th Amendment protection of your body (blood. A temporary detention is a seizure of the body. CHRISMAN (MONITORING MOVEMENTS OF ARRESTED PERSON) 1982 When an officer puts someone under arrest. WINSTON (JAIL/HOSPITAL SEARCHES) Lafayette: In jail. therefore it implements the 4th Amendment. . Can also frisk for HARD OBJECTS (weapons) 3. A protective sweep permits going through adjoining areas and adjoining structures to search for human beings who could harm the officers.). Winston: A bullet is evidence.(FULL EXPLORATORY SEARCH) Edwards: No 4th Amendment protect on items inventoried in jail (although a warrant should be pursued after a few days) Schmerber: Once you are lawfully in custody. hair. √ TERRY (DETENTION MUST BE BASED ON "REASONABLE SUSPICION" OF CRIMINAL ACTIVITY/COMMENSURATE RIGHT TO FRISK A DETAINEE IF REASONABLE BELIEF HE'S ARMED) 1968 1.

but they are not required to do so. you must submit. HODARI (TO BE "SEIZED" PERSON MUST SUBMIT TO AUTHORITY) 1991 To be detained. Subjective intent of officer immaterial. Place: Unnecessarily long. and all evidence should be suppressed. etc. (Bostick attempted to apply this logic) ROBINETTE Stopping for minor infractions in order to get consent to search (which idiot drivers usually give). minorities. Should inform that the detention has been terminated and they are free to go. they have effectively been seized. if goes from Casual Encounter to Arrest or Temporary Detention. A detention requires either arrest or submission. 2. BOSTICK & DRAYTON (CONSENSUAL BUS ENCOUNTERS) Agents aboard a bus are not detaining anyone because you're technically allowed to leave. JOHNSON Officer is justified in frisking for weapons if he has a reasonable fear that someone is armed. BRENDLIN (CAR PASSENGER ON TRAFFIC STOP "SEIZED") Everyone in the car is detained. √ 3 TYPES OF CONTACT WITH POLICE Arrest Temporary Detention Consensual Encounter-doesn't involve express/implied seizure 1. DELGADO (CONSENSUAL ENCOUNTER IN WORKPLACE) Consensual Encounter at the workplace because the workers are all there voluntarily. The driver can't be detained and the passenger in an Consensual Encounter. 3. If the officer exerts control. ROYER Consent can be invalidated if detained without reasonable suspicion. They don't need reasonable suspicion for a Consensual Encounter.) Pretext (broken taillight violation) is permissible for a stop. in view of all the circumstance surrounding the event. √ MENDENHALL ("CONSENSUAL ENCOUNTERS" NOT AMOUNTING TO SEIZURE) "a person has been seized only if. You don't need Reasonable Suspicion in a Consensual Encounter .CRIMINAL PROCEDURE NOTES √ WHREN 1996 (Widely criticized by ACLU. . If police exert such control that a reasonable person feels they aren't permitted to leave. the individual feels they are not free to leave".they're free to say no. SHARP & PLACE (DURATION OF DETENTION) Sharp: Only as long as necessary to confirm or disprove officer's suspicions.

appliances with the serial number removed. WHITE (DETENTIONS BASED ON ANONYMOUS TIP) "Required degree of suspicion to justify a detention is less than that for a search warrant". (Vehemently criticised) DAVIS & DUNAWAY (UNLAWFUL DETENTIONS) You must have probable cause to make an arrest. WATSON: warrantless arrest in public only.) evidence with a "probable cause nexus" that relates to an item on a "hot sheet" he can make a legal seizure. SOKOLOW (DRUG CARRIER "PROFILES") Someone fitting the profile of a "carrier" meets "reasonable suspicion" (even if all exhibited behavior is completely innocent) and can be legally detained. (EX: Searching for D&C evidence. Reliance on predictive behavior bolsters informant's credibility. HENSLEY (APBs) Someone matching the description in an APB is "reasonable suspicion" enough to to justify a Terry stop.CRIMINAL PROCEDURE NOTES DICKERSON (FRISK LIMITED TO HARD OBJECTS) A frisk search is limited to hard objects (looking only for weapons). Corroboration necessary to make up for a lack of veracity. √ PAYTON (WARRANTLESS HOME ENTRY TO ARREST FOR PROBABLE CAUSE) Bright Line Rule: The house is the most protected area under 4th Am.) HICKS: Moving objects to determine it's evidence is an illegal search. lawfully present) of something 1. J. WARDLOW (FLIGHT AS BASIS FOR DETENTION) "The guilty flee when no one pursueth. or imminent destruction of evidence. √ "EXIGENT CIRCUMSTANCES" RULE Just because the police are at a crime scene doesn't mean they can do a full search.) HAYES Momentary detention to take someone's fingerprints in the field (or photo) is permissible.) or 2. 7: 05 JULY 2011 REVIEW If a search is made w/search warrant. discovers contraband/evidence of another crime." Fleeing from police is enough to justify a "reasonable suspicion". PAYTON: Absent exigent circumstances. or the need to prevent a suspect's escape. etc. Exigent Circumstances: (OLSON): "a warrantless intrusion may be justified by hot pursuit of a felon.) inherently contraband (brick of coke. "PLAIN VIEW" RULE The cop makes a lawful observation (not trespassing. sawed-off shotgun. police cannot make a warrantless in the home. or the risk of danger to . ("Law & Order" is bullshit. it is presumed to be valid.L. Specifics & predictive behavior support veracity. You can't arrest someone for questioning.

STONE & FRAZIER (COMMON AUTHORITY & SPECIAL RELATIONSHIPS) A child does not have the authority to authorize a search of parents' rooms (shared areas ok). CHAPMAN. MATLOCK Joint possession .goes to gvt A . but a parent has apparent & legal authority to authorize a search of their room. THE OTHER DOESN'T) If both spouses are present and one spouse consents while the other doesn't.either one can give consent to search. RANDOLPH (ONE SPOUSE CONSENTS.CRIMINAL PROCEDURE NOTES police or to other persons inside or outside the dwelling. Probably applies to co-tenants. BUMPER Faulty warrant invalidates consent only when the official asserting they have have a warrant demands it. either can give consent to enter shared areas (hallway. Consent for search holds.goes to ∆ 08 . Absent roommate's bedroom is off-limits.goes to gvt S . √ "CONSENT" RULE (WILL BE ON THE TEST) V . Prosecution shoulders the burden of proving that the consent was voluntary. dining room. Consent must not have been obtained by tainted means (product of illegal arrest/seizure) (ROYER) . the police can rely on that in "good faith" for a consensual search. √ JIMENO Even in a consented search of the car. they give you apparent authority to authorize a search of the passenger compartment of the vehicle (apparent authority does not extend to the trunk). √ SPECIAL RELATIONSHIP NOTES: Landlord doesn't have authority to consent to a search of a tenants apartment Employer may be able to authorize a search of the exterior of a desk.Apparent authority to give consent (RODRIGUEZ) .Taint.3rd PARTY RELIANCE) If a 3rd Party has apparent authority and it's reasonable. √ RODRIGUEZ (APPARENT AUTHORITY . the consent is unreasonable (even in common areas). . you must specifically ask for separate consent to search the trunk & any closed containers belonging to 3rd parties. If you borrow someone's car.goes to gvt T . In a shared apartment.07 JULY 2011 √ (CONSENT) The public need not be informed that they don't have to give consent.Scope of consent determines search (JIMENO) . but probably not the interior. living room. Bailor/Bailee (valet attendant) can authorize a search of the passenger area but not of the trunk. single bathroom).Voluntary (SCHNECKLOTH) ." STEWART: Police can enter w/o warrant to render emergency services or protect someone (domestic abuse).

LIMIT: If that luggage is in a taxi. while being tracked.CRIMINAL PROCEDURE NOTES √ ROYER (TAINT . ROSS-ACEVEDO RULE (LUGGAGE & THE AUTOMOBILE EXCEPTION) ROSS: Once a cop has probable cause to search for drugs. NOTES Consent can be obtained during a consensual encounter. Was impounding the car a necessity? 3. consent prohibits opening 3rd party containers. WELLS & BERTINE (IMPOUND/INVENTORY SEARCHES) Inventory searches. the search must stop. police can go back to the car and search for drugs/guns (automobile extension of CHIMEL). HOUGHTON (SEARCH OF CONTAINERS IN VEHICLES BELONGING TO 3rd PARTIES) Probable cause for contraband permits searches without consent of containers belonging to 3rd parties.) .12 JULY 2011 BELTON ("INCIDENT TO ARREST" SEARCH EXTENDS TO AUTOMOBILES) Whenever a recent occupant is lawfully arrested. permitting them to open locked containers. nullifies) voluntary consent.) Mobility of the automobile. Originally designed to protect officer & preserve evidence. QUESTIONS TO ASK: 1. Must be able to lawfully see contraband in "plain view". Did they conduct the inventory w/in the guidelines of written administrative rules? 09 . a legal TERRY stop can be executed and the luggage can be seized and searched. Doesn't have to be a (lawful) seizure of the body (arrest/detainment) WARRANTLESS SEARCHES: AUTOMOBILES CARNEY (THE EVOLUTION OF THE "AUTOMOBILE EXCEPTION") Automobile has significantly less 4th AM protection than a home. 2. (Does not include the trunk.UNLAWFUL DETENTION/ARREST INVALIDATING CONSENT) Illegal arrest/detainment taints consent for search. Without p/c. subsequent to arrest. they can stop the taxi and search. which invalidates (vitiates. but once they find the contraband. If the cops have existing probable cause that the automobile contains contraband/evidence of a crime. the police have a right to do a full inventory of the vehicle as long as they comply with written administrative rules.) Subject to government regulation & you can see inside it from the road (reduced expectation of privacy). Was the driver lawfully arrested? 2. they can make a valid warrantless search. it enters a car. Was this an inventory or a targeted search? 4. ACEVEDO: Once the cop has probably cause to believe a piece of luggage contains contraband and. Automobile Exception to Warrantless Searches (not based on exigency): 1. he can open closed containers.

Problem: Doesn't use "probable cause"-uses "reason to believe". Anything more than that requires a warrant. Question of degree. DUI CHECKPOINTS Considered a public safety measure. LISTER (STOPPING CARS AT RANDOM LOOKING FOR A WITNESS Permissible because the need to find a witness trumps 4th AM requirement of individualized suspicion. T.guy can be cuffed in the car and still be spatially/temporally connected for search. School administrators have a right to conduct warrantless searches with reasonable suspicion (individualized suspicion). a dog sniff for drugs is permissible.going through a border is justified. Argument: you give up some parental control in order to preserve a safe learning environment. If driver is arrested close to the area of the car (within "arm's length" of guns/evidence) 2. VAN LEEUWEN (TEMPORARY SEIZURE OF PACKAGES/LUGGAGE) At some point. The further away you get from the border.does not include the trunk). not law enforcement. Police can go back & search the car if they have reason to be believe that the car has additional evidence for which he's being arrested (not a full search . cursory checks for safety is permitted if it's according to a plan. EDMOND Random stops/roadblocks for dog sniffs is NOT permissible. CAMARA (SAFETY INSPECTIONS) Random. so it trumps 4th AM individualized suspicion requirements. (STUDENT SEARCHES) Students attending a public school give up some of their 4th AM privacy rights. .CRIMINAL PROCEDURE NOTES THORTON (BELTON-THORTON RULE) What is a "recent occupant" of an automobile? The arrestee is spatially/temporally connected to the car. Belton-Thorton Rule to the Automobile Extension . GANT (CURRENT RULE) Significantly modified Belton-Thorton so that the search is only good if arrestee is a threat to officer safety or able to destroy evidence. Non-individualized suspicion must be justified usually . MIMMS & WILSON Ordering driver/passenger out of the car on a lawful traffic stop is permissible (for officer protection).O. the time of seizure become unreasonable. Purpose: to narrow BELTON 2 WAYS TO EXTEND "CHIMEL" TO AUTOMOBILES: 1.L. BORDER CHECKPOINT Any car going through a border checkpoint is subject to a random search. I CABALLES If lawfully stopped. which is a lower standard. the more the need for individualized suspicion.

bad cheques. REDDING (STRIP SEARCHES OF STUDENTS DISAPPROVED) Too invasive . √ CAR SEARCH WILL ABSOLUTELY BE ON THE FINAL ESSAY! RAKAS (CURRENT APPROACH ON "STANDING") You can only challenge a search if you can show a reasonable expectation of privacy in the area to be searched (putting drugs in your girlfriend's purse .O. it trumps the earlier (tainted) search. No individualized suspicion. Rule: As long as the have an independent source (subsequent legal search with a warrant based on independent evidence). FEGUSON (HOSPITAL TURNING OVER URINE SAMPLES TO POLICE) Not a special need which could trump 4th AM if it's primarily for law enforcement.draws a line for T.14 JULY 2011 . searches. SAMSON: Parolees have an automatic 4th Waiver MANDATORY DRUG TESTING Special needs cases that trump individualized suspicion requirement because of the dangerous nature of their jobs (pilots. Extension of TERRY.) ACTON/EARLS (MANDATORY DRUG TESTING FOR STUDENTS) Extracurricular activities can require drug testing . WILLIAMS II ("INEVITABLE DISCOVERY") Illegal search/confession is trumped by the possibility of "inevitable discovery". train conductors. BRENDLIN: A car passenger can challenge the legitimacy of the stop(standing) OLSON: Overnight guest has standing to challenge search of guest room.) LONG (SEARCH FOR WEAPONS) Must be lawful detention. Justifies illegal trunk search.L. Common Cases: drugs. stolen property. SEGURA & MURRAY ("INDEPENDENT SOURCE") See drugs on illegal entry. Special needs trump 4th AM privacy rights. Must have specific evidence that the drugs are on their person. 10 . etc. Come back with a warrant to see them again. the earlier illegality is overlooked. Agree to subject themselves to warrantless search at any time. reason to believe detainee armed or vehicle contains weapon and limited to search for weapons in passenger area of automobile and person (TERRY frisk for hard objects).illegal search can't use them against her.results not turned over to law enforcement.CRIMINAL PROCEDURE NOTES PROBATIONERS/PAROLEES "4th Waiver" in drug cases resulting in probation.) ALWAYS INVOLVES A HYPOTHETICAL! EX: Drugs on the body would have been found with Chimel search incident to arrest and a Lafayette search at the jail. (Distinguishes from ACTON/EARLS in that the results were turned over to law enforcement. (Vehicle would have been impounded/inventoried anyway because he had a warrant out. but they can use them against you. since you have no standing RAWLINGS). CARTER: Temporary visitors have no standing.

Arrest is based on evidence secured illegally. √EXCEPTIONS TO WONG SUN √CECCOLINI: Court will not suppress a live witness. Did they actively encourage it. HAVENS (USE OF ILLEGALLY SEIZED EVIDENCE FOR IMPEACHMENT) Formerly suppressed evidence can be used in a later case for the purpose of impeachment. kidnappings.CRIMINAL PROCEDURE NOTES √ WONG SUNG ("FRUITS OF THE POISONOUS TREE") If you can show that a that an arrest is based on illegal drugs. √ EXCLUSIONARY DOESN'T APPLY when: Good Faith Standing (Rakas) Independent Source (Segura) Inevitable Discovery (Williams II) Impeachment (Havens) "Knock Notice" Violation (Hudson) 1. √CREWS: Identification of ∆ by a witness will not be suppressed for public policy reasons. it's not an illegal entry violating 4th AM. and terrorism cases. (Inconsistent with earlier rulings. law enforcement is authorized to make covert entry into someone's home. (The Federal Court Standard-more favorable to the gv't) Objective test looks at gvt's conduct to see if that contributed to ∆'s conduct. DELIA: Court ruled that it's implied in Title 3 that. despite the fact that they're operating as an agent of the government. Only one question on multiple choice. Court's philosophy: It's not part of Due Process or Constitution.) (WIRETAPPING-SEE HANDOUT) Used in drug cartel. Court won't permit perjury. CHOOSE YOUR FRIENDS WISELY! ENTRAPMENT Not on the final essay. the evidence seized is "fruit of the poisonous tree". you must have a wiretap warrant. 6.Later. "I never used drugs!" = evidence for impeachment) HUDSON (EXCLUSIONARY RULE NOT APPLIED TO KNOCK NOTICE VIOLATIONS) If cops violate "knock notice". despite WONG SUNG. (Suppressed drugs . or was ∆ predisposed to this sort of behavior? Would an (mythical) innocent. he can work with the police against you. HOFFA (MISPLACED CONFIDENCE IN INFORMANTS LEADING TO INVITED ENTRIES) If a friend can betray you. 4. It's SC's policy that there is enough legitimate crime that we don't need the police creating more. 3. SHERMAN (OBJECTIVE v. evidence still comes in. political corruption. If you listen in on a conversation without consent of at least one of the participants. with wiretap authorization.THE OTHERS HAVE NO STANDING. 2. SUBJECTIVE TEST) √ THIS IS THE ONE ON THE FINAL: Subjective test focuses on the ∆'s conduct. 5. If you invite them into your room. ONLY WORKS FOR THE FIRST GUY FORWARD . but the search was illegal. reasonable man have . Allows prior criminal record to come in and be considered by the jury to see if THIS particular ∆ is predisposed to this kind of behavior.

while the right to an attorney doesn't kick in until he's charged. Must be given when two things exist: 1. the police must stop interrogating (not required to advise them of this). If a confession is accurate and not coerced. .19 JULY 2011 JACOBSON ("BLENDING" OF THE TWO TESTS) Sometimes juries and justices follow their hearts. not investigatory (police initiated custodial interrogations).) ∆ is in custody (detention or arrest) 2. WHAT IS "CUSTODY"? If police have p/c to arrest but don't. the initial questioning is not accusatorial and doesn't require Miranda warnings. society is served. ESCOBEDO (PRECURSOR OF MIRANDA) If the suspect requests a lawyer. (Somewhat misleading . especially if they don't like the conduct of the government. McNALLY If someone is lawfully in jail and is unnecessarily prolonged before bringing him before a magistrate. (Even though the stop is detainment. even if properly Mirandized.) DUCKWORTH (ADEQUACY OF WARNINGS) The Miranda Warnings must be verbatim. ALVARADO: "Reasonable person would believe that they are in custody.) Once he's arrested. You cannot paraphrase. the police must stop interrogation once suspect invokes this right. ∆ is not in custody.) The questioning of ∆ must be accusatory.actually means that. EXCEPTION: (McCARTY) During a routine traffic stop (even DUI)." JDB: Take age & location into consideration for custody (school kids). WHAT IS "INTERROGATION"? √ INNIS: Any words or actions on the part of the police that the police SHOULD know are reasonably likely to illicit an incriminating response from the suspect is the functional equivalent of interrogation.) 11 . (No real rule here. the focus shifted from accuracy of the confession to the police conduct involved in obtaining the coercion. he needs warnings. √ MIRANDA Forces the police to inform the suspect of their rights to counsel and silence. so there is no need to recite Miranda warnings.CRIMINAL PROCEDURE NOTES been induced into committing this crime? DOES NOT LOOK AT ∆'s CRIMINAL RECORD (Cop dressing up like an old lady to attract purse snatchers is legit under objective test. confession is suppressed. Over time.) CONFESSIONS Society values "owning up". MALLOY Applied 5th AM to the states. SPRING (MUST PERSON BE AWARE OF SUBJECT MATTER OF QUESTIONING?) No.

NARROWING OF MIRANDA. THOMPKINS: Being silent doesn't actually invoke your right to remain silent.CRIMINAL PROCEDURE NOTES 12 . TUCKER (MIRANDA VIOLATION LEADING TO THE IDENTITY OF A WITNESS) Exception to WONG SUN: Court will allow such voluntary statements. FULMINANTE (PSYCHOLOGICAL PLOYS TO INVOKE MIRANDA WAIVERS) Psychological manipulation (fear for one's life) invalidates confessions.) MICHAEL C. ∆ only invokes right to remain silent (not atty) . permissible only if: Determine what ∆ said . NOTE: Burden seems to have shifted to ∆ to prove that he had invoked Miranda.CAN POLICE LIE?) As long as it doesn't create a false confession. (Repeat for the record. as the court won't permit perjury. if it leads to the identity of a witness. police can use deception (including bogus evidence).21 JULY 2012 BUTLER (INVOCATION & WAIVER) A person can waive their Miranda rights impliedly through their actions.here. FRASIER (TRICKERY TO INVOKE MIRANDA WAVERS . √ ELSTAD (CURING THE TAINT OF AN EARLIER MIRANDA VIOLATION) A statement made without Miranda warnings can be "untainted" with a later Mirandized confession. √QUARLES (PUBLIC SAFETY EXCEPTION TO MIRANDA . (EX: By talking freely without waiving. CONNELY (INTERROGATING THE MENTALLY ILL) The police are not responsible for determining if someone is mentally competent to waive Miranda rights. UPHELD) Found to be Constitutional √ MOSLEY (ONCE MIRANDA INVOKED. if one continuous statement is interrupted to Mirandize. HARRIS (THE IMPEACHMENT EXCEPTION) A statement was made with a Miranda violation is inadmissible in case-in-chief EXCEPT where ∆ makes a conflicting statement in court.) SIEBERT (UNWARNED CONFESSION REPEATED AFTER WARNINGS GIVEN) Unlike ELSTAD. not "fruits of the poisonous tree". BURBINE (THWARTING ATTY ACCESS) Only ∆ can invoke his Miranda rights. DICKERSON (NECESSITY OF MIRANDA WARNINGS RE-EVALUATED."WHERE'S THE GUN?") Miranda warnings don't have to be given in a public safety situation. he impliedly waives. Statement can be used to impeach. CAN COPS TRY AGAIN?) Once asserted. the statement is no good.: Must specifically ask for an attorney to invoke Miranda (not parents or probation officer). PATANE (MIRANDA VIOLATION LEADING TO PHYSICAL EVIDENCE) Another exception to WONG SUN: Voluntary statements leading to physical evidence will be admitted.

However. if his right to counsel has attached. ∆ does not automatic have EDWARDS protection.) Wait an appreciable amount of time (next day) 3. but questioning isn't. Only attached to that specific charge ∆ was arraigned on. PATTERSON (MIRANDA WARNINGS SUFFICIENTLY APPRISE ∆ ON 6th AM RIGHT TO COUNSEL) 13 . SHATZER (COURT SETS A TIME LIMIT ON EDWARDS PROTECTION) Court set a 14-day limit on Edwards protection with a break in custody. Cops can't try again. a general question doesn't initiate interrogation. √ EDWARDS (INVOKING RIGHT TO COUNSEL v. . (Overrules JACKSON) √ McNEIL (RIGHT TO COUNSEL IS "OFFENSE-SPECIFIC") The right to counsel is offense specific. (Not on the test) BRADSHAW (WHAT CONSTITUTES RE-INITIATING FURTHER CONTACT?) With EDWARDS in effect. √ DAVIS (REQUEST FOR ATTY MUST BE UNAMBIGUOUS) You must say "I want a lawyer" to actually exercise this right .he must specifically & unambiguously request an atty. police may NOT use a secret agent to gather evidence against ∆. despite being assigned one. snitch can actively listen. so long as he doesn't question ∆. where snitch was asking about a separate crime.) Must re-admonish Miranda when they try again.26 JULY 2010 (Last full class!) √ Michael Connelly crime novels JACKSON ∆ asking for a lawyer in court is the same thing as an EDWARDS invocation face-to-face with a cop. Now that JACKSON was overruled by MONTEJO.) Police must scrupulously honor this invocation 2.`` MASSIAH After ∆ has been arraigned and assigned counsel (right to counsel attached). so planting a snitch is not a 4th AM violation as long as he's not yet charged. RIGHT TO REMAIN SILENT) Insulates ∆ from further police contact. Police may interrogate until ∆ asserts his right to atty. Contrast HOFFA. (Overruled by MONTEJO). Give Miranda a second layer of protection if ∆ specifically invokes right to counsel. KUHLMAN (PASSIVE LISTENING BY JAIL PLANT v.it cannot be ambiguous. COBB: Does not attach to unrelated charges. it is less relevant . IN-CUSTODY & CHARGED ∆) Jail plant comments are permitted.CRIMINAL PROCEDURE NOTES 1. MONTEJO (EDWARDS NO LONGER AUTOMATICALLY KICKS IN AT ARRAIGNMENT) With no request for an attorney. There's no right to privacy in a jail.

before arraignment . live lineup). √ MANSON Test for determining the admissibility of in-court identification where there has been a previous unduly suggestive identification procedure (curbside. If it materially affected the in-court identification. a single photo lineup.CRIMINAL PROCEDURE NOTES VENTRIS (IMPROPER INFORMANT QUESTIONING OF ∆ CAN BE USED FOR IMPEACHMENT) Under MASSIAH-HENRY. NAIL ALL 3! .) Something the police say solidifies witness's shaky identification. unless coerced. with no lineup. √√√ FOR TEST ON IDENTIFICATION: 1.) Say when Right to Counsel Attaches (photo: ASH . but WADE-GILBERT can be. Look at certainty of identification.) "Whether under the "totality of circumstances" the identification was reliable even if the confrontation procedure was "suggestive". (In this case. (Attorney can be present at a post-arraignment live lineup).No. Look at the physical description. photo. can be used to impeach perjuring ∆. the informant's questioning is inadmissible. Look at witness's opportunity to observe the suspect.) Say what's wrong with the lineup (unduly suggestive) 3.WADE-GILBERT & KIRBY . PERKINS An informant situation is not governed by MIRANDA.Yes) 2. THE ORIGINAL "PER SE" TEST) You can challenge any pre-trial identification by showing it was "unduly suggestive": 1.never. √ WADE-GILBERT (RIGHT TO COUNSEL AT LINEUP?) Once a suspect has been charged and right to counsel has been attached.) What is the test for admissibility? MANSON Reliability Test." √ KIRBY (RIGHT TO COUNSEL DOESN'T ATTACH UNTIL AFTER ARRAIGNMENT) In pre-arraignment live lineups. Most court cases can't be cited in a trial. just victim and suspect PHOTO ARRAY: 6 pictures LIVE LINEUP: 6 people go before the lights √ STOVALL (UNDULY SUGGESTIVE LINEUP. then ∆'s attorney must be advised of lineup so he can make sure the lineup is fair. you can get both thrown out. 2. post-arraignment .) The manner in which the lineup was presented (one suspect is made to standout). Circumstances affecting witness's ability to make an accurate identification: Race. "Identifications of people are fraught with error and can lead to misidentifications. √ PRE-TRIAL IDENTIFICATIONS CURBSIDE LINEUP: 1-on-1. ∆ has no right to counsel.WADE-GILBERT & KIRBY. √ ASH You NEVER have a right to counsel at a photo lineup/array. lighting.

CRIMINAL PROCEDURE NOTES .