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Exclusionary Rule; Grand Juries; Fruits of the Poisonous Tree Doctrine; Standing; Harmless Error; State Action; Substantive Considerations, Reasonable Expectation of Privacy; and Warrant Requirements. CD2: Exceptions to the Warrant Requirement; Search Incident to a Lawful Arrest; Stop & Frisk; Plain View; Automobile Exception; Consent; Other Searches; Methods to Attach the Admissibility of a Statement or Confession; Voluntariness Approach; Miranda Approach; and Right to Counsel Approach. CD3: Fruits of the Poisonous Tree Doctrine; Identification Procedures & Lineups; Chronology of the Criminal Proceeding; Right to Public/Speedy Trial; Right to Counsel/Jury Trial; Habeas Corpus; Other Key Areas of Criminal Proceeding; Right of Confrontation; Burden of Persuasion; Presumptions; Sentencing; and Double Jeopardy. CD 1 Expect to see 13 criminal procedure questions on the bar exam. A. • B. The Fourth Amendment The Fourth Amendment protects unreasonable search and seizures. It requires that no warrant shall be issued but upon the showing of probably cause. Arrest An arrest is defined as the seizure of a person for the purpose of initiating criminal proceeding. It requires seizing the person. It is more than mere custody. It is more than just taking an individual into custody. It is more than a brief detention. It is more than a stop and frisk Look closely at the facts to determine if there has been a seizure sufficient for an arrest.
General rule: no warrant is required for an arrest. There are 3 exceptions to this rule. 1. Where the person is arrested in his/her own house (inside his house). 2. Where the person is arrested in another person’s house 3. Where the police make an arrest for a misdeamour not committed in their presence. Where it wasn’t in their presence. (Common law rule) Common law rules for Warrantless Arrests Misdemeanor: both police officers and private citizens can make arrests for
2 misdemeanor where 1). The crime is committed in their presence, and 2). The misdemeanor amounts to a breach. . Felony: Both police officers and private citizens may make arrests for felonies committed in the presence. No arrest warrant is required. A police officer may arrest a person for a felony (without a warrant) not committed in his presence where he has reasonable grounds to believe the person committed the felony; however, such an arrest by a private citizen is valid only if the felony was in fact committed. Private Citizen: acts at his/her own risk. If the private citizen does not observe a felony, no warrant is required, only if the felony was in fact committed by the suspect. She may be liable for false imprisonment if the suspect did not in fact commit the felony. Probable Cause is required for an arrest. This is an objective test. The facts and circumstances must be such that a reasonable prudent person would believe that the suspect had committed the crime. We need more than mere suspicion. C. Search & Seizure. (Most highly tested area). Substantive approach. Ask yourself: 1. Is there a search or did no search take place? If there is a search, then we are dealing with a fourth amendment. If no search, then no fourth amendment. 2. Is there a warrant or is no warrant required? D. Procedural considerations 1. Exclusionary rule 2. Fruits of the Poisonous Tree 3. Standing 4. Harmless error rule 5. State action requirement Exclusionary rule is a remedy to deter unlawful police conduct in protecting against violation of constitutional rights. It is a policy to prevent illegal searches. • Definition: Any evidence obtained in violation of the 4th amendment (an unlawful arrest and seizure) may not be admitted substantially in a criminal proceeding. It may be however be used to impeach the defendant. It doesn’t apply to grand juries nor civil proceedings • Grand juries. Purpose is to determine probable cause to prosecute. Proceedings are conducted in secret. 5th amendment to juries have not been incorporated into juried. States that don’t use grand juries are required to file information. Grand jury may consider hearsay evidence. Note: There is no right to: •
3 1. 2. 3. 4. 5. 6. confront witnesses cross examine, present evidence, counsel, Miranda warnings, be present unless the person is called to appear.
Fruits of the poisonous tree prior illegal police conduct may require that any subsequent verbal or physical evidence obtained will be tainted by the earlier illegality and thus found inadmissible. In order for this fruit doctrine to apply, the first search must export the second search. A taint may be purged, but it is usually very difficult unless: (1) the independent source doctrine; (2) the inevitable discovery rule; and (3) the attenuated connection principle. Standing in criminal procedure: The defendant has a possessory interest in the premises search or the items seized. He has standing to assert 4th amendment if his privacy rights were violated based on totality of the circumstance. It can also be extended to the personal effects of an overnight guess. Derivative standing: fourth amendment rights are Harmless error rule. Error is deemed harmless if the prosecutor can show beyond reasonable doubt, that the def would have been convicted either way. Reversible/plain error: denial of right to counsel, situations of improper or unconstitutional bias, Or a situation where the jury is chosen in a racial manner. State action requirement: 4th amendment applies only to the federal government, to the states and to their entities. County sheriffs, Reasonable expectation of privacy 1. Was there a search? Did the person have an expectation of privacy in the thing searched? 2. Was that expectation reasonable? Look to see if an ordinary person engaged in the same kind of conduct would reasonable have expected privacy. If there is a reasonable expectation of privacy, then police intrusion constitutes a search. Examples, in a telephone booth, dressing room in a department store, or in the restroom. If you are told that they are using electronic monitoring, then no expectable of privacy. No expectation of privacy for ‘items held out to the public’. 1. unenclosed public phone
4 2. voice and handwriting sample 3. pen register ( devise which records the number dialed) 4. *open fields doctrine- curtilage- the area immediately around the home, traditionally reserved for domestic use. This includes the patio, the backyard, not include the barn or the marijuana fields. The area outside the curtilage is called opened fields. No reasonable expectation for open field. A view of open fields is not a search. Area surveillance- use of a police aircraft flying over the defendant’s home and observing marijuana plans growing within the fenced curtilage was held to be no search since the plants were readily discernible to the naked eye within a public navigable airspace. (California v. Ciraolo) Where technology aids the police to observe what they ordinarily could not have seen, there is a search. If the police could have made the observable with the naked eye, then no search. Electronic devises- no search/ no rep for vehicles traveling on a public road. Student’s property at school- there is a reasonable expectation of privacy for students’ items at school. Back pack etc. however such personal items may be searched by school administrator acting independently, if there is reasonable belief/ suspicion that contraband would be found. Bank records- no expectation of privacy Dog sniff- no rep in one’s smell. This doesn’t constitute a search. The detention must be brief. Garbage- left for collection, no expectation of privacy. Drug testing of school athletes- doesn’t required individualized suspicion by a coach or school administrator. Warrant requirements Is there a warrant or is no warrant required? Two elements for a search: 1. Probably cause 2. Warrant Probable cause Test: no rigid rule, the court goes on a case-by-case determination. Whether from the facts presented to the magistrate, a reasonable person would conclude that it was more likely than not that incriminating evidence of the named items or person would be found. More likely than not test. -Probably cause for a search warrant must not be stale -Probably cause for an arrest may be more remote in time. You can be arrested today for what you did last year, but you can’t be searched for it.
5 Use of informants. Probably cause based on the sufficiently of an informants tip must be established by totality of the circumstances. (Gates test) 1. Is the informant reliable? Has he testified in court before? Is he reliable? Has he given one good fact before? Look to see what informant has done before. 2. Is the information credible? Details etc Warrant requirements 1. Warrant proceeding must be sworn. It doesn’t have to be in writing. Issued by a neutral and detached magistrate. Specificity of the warrant The warrant must describe with particularity the place to be searched and the items or persons to be seized. Look at the language. Scope of executing a search warrant. – Contraband not named in the warrant may be lawfully seized by a police office- under the plain view doctrine. However, the scope of the search is limited by the premise described in the warrant. Good faith requirement exception to the warrant requirement. Evidence obtained due to honest police mistake should not be excluded by the 4th amendment. i.e. if magistrate made a technical mistake in the warrant.. Or magistrate did not quite have a probable cause but he issued a warrant. But not if the police lied, or no probable cause and the magistrate still issued a warrant. Persons who are present on the premises during the time a search is going on, may be detained. However, they may not be searched, absence a showing of probably cause. There is a knock requirement. Officers must knock before entering, however there are exceptions. Warrants need not be executed in the daytime.
6 CD # 2 Exceptions to the warrant requirement 1. Search incident to lawful arrest (no probable cause is required). Most heavily tested. 2. Stop and frisk (no probable cause is required). 3. Plain view doctrine (no probable cause is required). 4. Automobile exception 5. Consent 6. Hot pursuit 7. Exigent circumstances -Search incident to lawful arrest (Chimel v. California) following a full custodial arrest, a complete search of the person is permitted (Wingspan). Area under the person’s immediate control) without showing probable cause. An arrestee has no reasonable expectation of privacy. Protective sweep can occur to locate an accomplice. It has also been extended to cars. (New York v. Belton). Following a lawful custodial arrest during which the def is handcuffed, police are permitted to search the entire passenger compartment of his car and its contents, as being within the def’s control. -Stop and frisk. Brief detention made for the purpose of asking a few questions. (Terry v. Ohio). It is more than a polite inquiry, less than a custodial arrest, it’s somewhere in the middle. For example, roadside questioning of a motorist pursuant to a traffic stop. It is merely a terry stop. It is not deemed custodial for Miranda purposes. Miranda warnings are not required. Stop. Requires reasonable and articulable suspicion. Look at degrees of suspicion. How much suspicion is enough? It is more than a mere suspicion; however a reasonable and articulate suspicion is less than probable cause. Frisk. Pat down search for weapons to protect police officers based on a reasonable suspicion that the suspect is armed or dangerous. An officer may reach into the suspects’ pocket, based on the plain view doctrine. This is admissible. Police may order a motorist out of the car even without suspicion of a criminal action. Frisk is a separate requirement from a stop. Analysis stops & frisk separately for essays purposes. -Terry’s principles can apply to a matter of minutes. Examples of a terry stop. Stopping passengers at the airport for dog to sniff. Seizure must be brief. 90-minute detention was too long. X-rays allowed if suspected person has swallowed drugs. Balloon swallowers.
7 -Plain view. Three requirements. 1. The police must be lawfully on the premises 2. Evidence must be observed in plain view 3. Incriminating character of the evidence must be immediately apparent. (Horton v. California) There must be probable cause. Inventory search; upon arrest and booking, a full inventory of defendants personal items is permitted. -Automobile exception. (Highly tested) 1. Start out by looking at the automobile search. The justification is the inherent mobility of vehicles traveling on the open road or stopped at a parking lot. It doesn’t apply to vehicles parked on the street in front of your home. Basis rule (US v. Ross) – if probable cause justifies the search of lawfully stopped vehicles, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Ross can also apply to packages belonging to a passenger in a vehicle. Scope of Ross. Ross applies to any object to which probable cause exists. You can find drugs anywhere on a vehicle. Police can search anywhere. Ross applies to trucks etc. contrast to Benton where the police can’t search the truck. Scope is defined by the object of the search and the places in which there is probable cause to believe that the object will be found. Rule for impound. Police may search an entire vehicle that has been impounded. You can do it at a later date at the police station. Note. Random stopping of a vehicle is unconstitutional. All cars may be stopped at a fixed point. Perhaps ever 5th car to check for registration etc. sobriety checkpoints are permissible. Consent. Consent must be voluntarily and intelligent. Voluntariness is measured by ‘totality of the circumstances.’ The police need not advise the suspect of her right to refuse content. Low-level trickery is permitted. Court will look at a few things: age of the person, mental capability, demeanor of the police. Where threats use? Was authority misrepresented? There is a right to refuse consent and police need not advice the client. Scope of consent: it extends only to property over which the person has unlimited use or control. Regarding authority to consent, any person with apparent use to occupy the property may consent. Third party consent: a roommate may only consent to common shared A landlord may not consent to the search of a tenant’s apartment. A motel owner may not consent to the search of a guest’s room. Wife may not consent to a room hubby is occupying with another woman. Common authority rule. Third party consent is valid if: 1. If the consenting party could permit the search in his own right 2. The dft assumes the risk that a co-occupant may permit a search.
Hot pursuit. While in pursuit of a dangerous suspect, a warrantless search of a dwelling, vehicle or any evidence As well as to protect law officers from harm. The pursuit itself must be continuous. No break Exigent circumstances. Justified in emergency where evidence may be lost or destroyed. Probable cause is required. How long will it take to get a warrant? (Schmerber v. California) Other searches- administrative searches a Inspections done by firefighters. They require a court order, warrant, or injunction. Border searches. At an international border, a complete warrantless search is allowed. Bodily cavity searches may also be required if there is a ‘clear indication’ Even 500miles inland, it may be conducted inland, where there has been virtual constant surveillance. Searches in foreign countries, it doesn’t apply in foreign countries. Wiretaps – governed by federal statute. 1. Probable cause of criminal activity 2. Court order presented to a fed judge 3. Specific detail as to the time frame and scope the conversations to be incepted. Voluntariness Approach: Statements, confessions and identification There are four legal doctrines that you should know in depth. Which ones apply and why? Highly tested. 1. Voluntariness 2. Miranda 3. Right to counsel 4. Fruits of the poisonous tree Voluntariness- based on due process clause of the 5th and 14th amendment. A confession must be freely, knowingly and voluntarily made. The def must have been able to make a free and rational choice. The court uses ‘totality of the circumstances.’ To determine if the statement was given voluntarily, the court will often view two factors: 1. the nature of the def: Age, medical condition, education, drug and alcohol use 2. The nature of the police conduct. Low-level police trickery is tolerated. The law today (Arizona v. Fuhninante) a coerced confession is now subject to the harmless error rule. A coerced confession may not be used for impeachment. Voluntariness is a preliminary question of fact, for a judge using the preponderance of the evidence standard. Miranda doctrine 5th amendment privilege against self-incrimination. Miranda warnings has 4 parts: 1. Right to remain silent
9 2. If she choosing to speak anything she says can be used against her 3. She has a right to an attorney 4. If she can’t afford one, the court will afford her one. Minor variation may occur. They have to be read to everyone. If subject interrupts warnings, police officer may stop reading without error, failure to read to warnings constitutes harmless. Warnings are required when there is custodial interrogation. Custody: not being free to leave. Under arrest. It is determined by the reasonable expectation of the subject and not the police officer. Interrogation: the test derives from (Rhode Island v. Innis), either through police questioning or indirectly through behavior the police should know is likely to get an illicit response. Miranda doesn’t apply: 1. Questioning by private security guards 2. On- the-scene questioning 3. Statements made before a grand jury investigation 4. Spontaneous, unsolicited statements 5. Interrogation of a taxpayer during a criminal investigation by the I.R.S 6. Questioning by a parole officer where the def was free to leave the police station 7. Grand jury testimony 8. Truly volunteer statements 9. Questioning in a jail cell by under cover government agents Remember this. Miranda was meant to protect against interrogation in an inherently police environment. Coercion is determined from the: Exceptions (even when there is no interrogation) Upon apprehending a suspect in a supermarket, who had just committed a rape, in order. The police officer asked the suspect ‘where is the gun’ the court said there was no interrogation. PO was protecting the safety of its citizen When must interrogation cease? 1. When an attorney is requested for. Interrogation must cease immediately. 2. He can decide to remain silent. Questions must cease. Can questioning resume? When? 1st case- when dft changes his mind and volunteers. Significant period is required. 2 hours is generally sufficient. 2nd case- Michigan (2nd session interrogation) a couple of hour’s timeline. There must be a different officer, unrelated crime, new set of warnings are issued, dft must want to talk. General rule-no new Miranda warnings are required if there is a short break (lunch) or 2. a new police agency begins questioning.
Miranda Waiver It must be knowingly and voluntarily given. Determined by totality of the circumstances. Use of trickery by police. Moran v. Burbine. Confession was valid. Right to counsel approach. Based on 6th amendment right to counsel- it protects against the deliberate elicitation of any incriminating statement from the dft without the assistance of counsel once formal charges have been filed. • What constitutes filing of formal charges? What you need are either an indictment of filing of information by the prosecutor, or a grand jury filing charges. Not merely an arrest. Requires actual filling of document is required. *Miranda (Custodial interrogation)
Actual waiver- intentional relinquishment of a known right. (United States v. Henry). As a basic approach, go through these different approaches. Which ones work and which ones don’t. Look out for jail situations. Mere passive listening doesn’t violate. Right to counsel approach (continued) v. Miranda. Under Miranda, behavior the police should know is reasonable likely to elicit a response. Right to counsel- behavior known to the police is likely to induce the dft to talk. There is a stricter rule that applies to waiver.
11 CD#3 • Fruits of the poisonous tree doctrine as apply to confessions- an otherwise stmt or confession made after a valid Miranda waiver may be admissible if it is a product of unlawful search or seizure. The confession itself may be admitted if the taint is purged. Brown v. Illinois test. A confession follows an unlawful arrest; the court will look to 3 factors to determine if the taint has been dissipated. 1. Time: Court will consider the time. The time between the unlawful arrest and the confession. 2. Intervening circumstances 3. Flagrancy of the unlawful arrest itself. Review carefully. • Identification Procedures. As a general rule, the 5th amendment is not helpful in this case, because it only protects against evidence that is testimonial in nature. There are 2 constitutional basis: Due process & Right to Counsel Pre-indictment identification- Due Process Standard. Identification procedure may be neither unnecessarily suggestive, nor produce a substantial likelihood of misidentification. Post indictment lineup- defendant has right to have counsel present. Remedies for violation of post indictment identification- dft has an absolute right to suppress testimony about the unconstitutional lineup or other identification procedure. Subsequent in-court identification – court will apply the independent basis test. Common sense test. If what the witness remembers is the original crime, rather than the unconstitutional lineup, then the subsequent in court identification would be permitted. Look at criminal procedure outline* Selected key areas. Right to a Public Trail – members of the press and general public have the 6th amendment rights to be present in a criminal case. It can be limited by the judge, that closure is necessary. The judge will issue a gag order. It can also be televised. Avoid unfair prejudice to the def- i.e. prejudicial pretrial publicity. Right to Speedy Trail- it attaches when legal proceedings begin either with an arrest or indictment. If defendant can show that prejudice occurred through the delay, then a due process violation will arise. Court will balance four factors to determine unreasonable delay: 1. Length of the delay 2. Reason for the delay 3. Did the defendant request a speedy trail
12 4. Prejudice to the defendant. Right to Counsel. When does it attach? It attaches at critical stages of the proceeding. Includes, post indictment lineups, post indictment hearings, arraignment. Extents to sentencing, non-discretionary appeal (appeal as a matter of right). It doesn’t apply to non-critical stages, preliminary identification procedure, showing of mug shots, pre-indictment lineup. A grand jury proceeding. Habeas corpus. Offenses: any crime for which the defendant actually receives a jail sentence. A fine alone without an actual sentence will not result in a violation. Self-representation. You don’t have to have a lawyer. Right to competent counsel. Reasonable effectiveness of counsel. Right to Jury Trail. When does it apply? It attaches, when the defendant faces a sentence of possible more than 6 months in jail. Habeas corpus Double Jeopardy
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