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Criminal Procedure Checklist PROCEDURES & CONTEXT Community Caretaking function Dube, Stowe Consider legislative choice between

een making act crime or civil violation. MoralesUnconstlly vague and didnt meet fair notice reqt because it didnt provide adequate notice of prohibited conduct. Structure v. SubstanceMethod to constrain offr discretion. Limit discretion formally, or have ordinance limit discretion? BRIEF SEARCHES & STOPS Is there a seizure? Do police have articulable, individualized reasle suspicion that committed crime? Traditional Framwk Katz: reasonle expectn of privacy; Terry: Std. lower than probable cause r/s; Camara: Balancing SeizureMendenhall Totality of circs reasonable person feel free to leave?; Bostick Close quarters: free not to talk. o Hodari Seizure by pursuit: 1. yield? 2. force used? BASIS FOR REASONABLE SUSPICION Totality of circs + trained offr ; Sokolow: R/S burden < preponderance of evidence Profiles Alone cannot constitute reasonable suspicion; Fed. rule: agnostic to profile; Minor: No use of profiles Framework Terry: specific & articulable facts; Cortez: as viewed by trained offr; Sibron: haunches insuffict. Race as component Race may be one component for reasonable suspicion; Wardlow Fleeing sufficent for r/s; Coleman: Race + Gender + Height + Facial hair legitimate factors under totality of circs. PRETEXT STOPS & DRIVING WHILE BLACK Pretext is attempt to clean up r/s doctrine; DWB pg. 8 of outline. Pretext: Whren: Ok as long as there is 1 objective justification for stop; Compare Ladson (unconstl under state constn) and Lopez (reasons why pretext doctrine is unnecessary). NON-SEARCHES Admin. stops (checkpoints); Terry frisks & searches of cars; Plain smell & hearing; plain feel. Katz; Balancing! Admin. Stops Justification: programmatic, not individualized; Sitz 1. Neutral guidelines; 2. Reduced subj./obj. intrusion; But see Pimental (requiring individualized suspicion) (minority position). Fixed & Roving Stops for Immigration Brignoni-Ponce: No roving; Martinez-Fuerte: Fixed border checkpoints ok; Montoya de Hernandez Reasonle suspicion for unusually long detention. Freezing situation May be necessary for offr investigating a reported crime scene limited authority to stop situation. Plain View Coolidge: 1. offr in lawful location; 2. discovery inadvertent (Horton); 3. Incriminating nature apparent o Unusual position: Riley: Flyovers not searches if w/in FAA airspace, if no dust, noise, threat of injury. Garbage Searches S.Ct. & Majority: No reasonable expectation of privacy in trash out for collection; Cf. Open fields. Terry Frisk Offr can frisk if he feels in danger for himself or others; r/s; o Plain feel Dickerson: If offr searches for weapons but finds something else seize if immediately apparent. Terry Search of Stopped Cars Mich v. Long Offrs stopping car & frisk driver may conduct further protective search of passenger compartment; Orders to exit: Mimms & Wilson: Police may order driver & passger to exit vehicle w/ no justifn.

FULL SEARCHES Consider preference for warrants. Probable cause 1. Reasonable to whom?; 2. Strength of connection; 3. Comparison to other stds; 4. Quality of info. Confidential infnts Gates: Totality of circs all facts indicating veracity/basis of knowledge of informant; Aguilar-Spinelli: 1. Some underlying circs are as claimed by infrmnt; 2. underlying circs confirmed informant/info. credible Anonymous Srcs: J.L.: Anon. tip alone cannot justify stop/frisk; must bear some indicia of reliability; Use Gates or A/S test. ALTERNATIVES TO PROBABLE CAUSE Hawkins. Cops cannot create exigency; Special status of homes; Balancing! Highly intrusive searches Winston v. Lee: When warrantless search involves intrusion into body, probable cause plus: 1. Efficacy How likely to produce desired evid.? 2. Exigence How likely evid. will be destroyed if not collected? Exigent Circs 3 Usual grounds: 1. Destruction of evid.; 2. Escape of suspect; 3. Danger to investigating offr or others Internl Borders Montoya de Hernandez: Routine searches of persons/effects at border not subject to r/s, p/c or warrant. WARRANTS Reqts: 1. Neutral/detached magistrate; 2. Particularity; 3. Execution limits; No general warrants! Neutral Mag. Dietrick: spousal rule not extended per se to all offrs; Rule of Necessity Exceptn; Connally: no $$:issue Particularity Rural v. Urban setting; Marron: Things taken should leave no discretion to offrs. Execution Nighttime searches: more limited; Knocking: statutes usually require knock & announce unreasonability. Anticipatory Warrant Garcia (CA2): Greater scrutiny: Efficacy, Explicit, Clear & Narrowly drawn. (p. 16) Admin. Warrants: Camara: Balancing methodology introduced: public v. private interests; Highly-reg. industry: Donovan

CONSENT SEARCHES Balance: Govts need for search with assuring absence of coercion. Voluntariness Schneckloth: Totality of circ's whether person consented to search; cops need not inform of refusal rt. Withdrawal/Retroactive W/D: Must be unequivocal; Must be inconsistent with prior consent; Retro Most cts. accept; 3d-Party Not property law, but mutual use; Presence/Absence of target; Rodriguez: Apparent authority but not real ok. SEARCH INCIDENT TO ARREST More intensive than Terry frisks. Chimel No p/c or r/s needed for cop to search person and area immediately w/in control weapon or destroy evid. o No protective sweeps, entire rooms or multiple rooms under SIA, but look for other grounds. Subsequent searches Edwards: s clothing may be searched 10 hrs. after arrest. Strip Searches Look at statutes: usually require judicial/supervisorial approval & written record. LOCATIONS Consider tension between Katz and Oliver for open-fields; Schools: safety. Open-Fields Oliver There is no search when offr discovers something in lands beyond home + curtilage Curtilage Dunn Factors: 1. Proximity; 2: Inside enclosure?; 3. Nature of area; 4. Steps taken to protect fr. observation. Workplaces Totality of circs: Did workers have control over access to the area? Attach rt to property or workplace? Schools TLO: Evident suggestion: Less cause reqd to justify search by school offls; Dilworth: Search initiated by cops. AUTOMOBILE SEARCH JUSTIFICATIONS Ask: is this a house or a car? Inventory: 1) How specific are rules? 2) Offr discretion. Inventory Searches Hundley: 1. Lawful impoundment; 2. Purpose to protect property; 3. Good faith with std. procedures. o Lafayette: Least intrusive means rejected; Bertine: Inventory challengeable when done in bad faith or pretextually. SIA to carsBelton: If lawful custodial arrestoffr may search passenger compatmt and containers within. Minor offense? Automobile Exception to Warrant: Carroll: If there is p/c that car contains evid/contraband no warrant to stop & search! Apply Terry to CarsMich. v. Long 1. Proper basis for stopping car (r/s); 2. Offr has r/s of weapons in car. (p. 21) Containers Acevedo: May search container w/ p/c that it contains evid/contraband; Ross: If p/c justifies stopsearch every part; Cardwell: Lesser expectation of privacy in automobiles. Conflicted jurisprudence. STOP OR ARREST? 1. Length of detention; 2. Restraints (cuffs); 3. Location of suspect; 4. What offrs say and intend. DistinctionRoyer: Arrest (p/c reqd) reasnable person would belive shes under arrest. Stop (r/s)No longer than neccr Corporate info. M.E.B. Sufficiency of p/c not what any one offr knew, but what was know to law enforc. Agency. Arrest WarrantsPublic: Watson; Suspects Home: Payton: reason to believe suspects within; 3d Party Home: Steagald: Search warrant reqd. Exigent circs: 4 Factors (p 23); Minor traffic offenses: Welsh: Warrantless entry particularly sticky.

USE OF FORCE Balancing fleeing s rights with police safety. Consider institutional limits, e.g. FBI guidelines. Fleeing Felon Tenn v. Garner: No deadly force unless suspect threatens offr, or p/c to believe he has committed a crime involving serious physical harm, deadly force may be used if necessary to prevent escape. EXCLUSIONARY RULE: LIMITS Bad evidence ok: Nature of proceedings; For impeachment (Havens); Standing cabin Katz. Good Faith Leon: Objectv good faith: 1. False info; 2. Incompetent judge; 3. Grossly lacking affidt; 4. Deficient warrant; Causation Indpendnt source; Inevitable discovry; Attenuation: 1. type of evid.; 2. cooperating W; 3. Cost; 4. Deter cops? Standing Rakas: Legitimate expectation of privacy demonstrated through source outside Amend 4: property law Jones (Minority) Legitimately on the premises test. WIRETAPS & TECHNOLOGY Sense enhancing or facilitating? Framework: 1) Specificity of activity revealed; 2) Duration of tech use; 3) Targeting: # of innocents caught? Balance: Level of justification; Reasonability; and Structure: Branch of govt Wiretaps Olmstead: Invites Congress to extend search definitionTitle III: Very rigid.

DUE PROCESS INTERROGATIONS Totality of Circumstances. Look for vulnerabilities of suspects. Threats lead to confession? Due Process (Voluntariness) Brown: Coerced confessions: Unreliable; Inconsistent w/ accusatorial sys; Deter bad cops. Delay of presenting suspect to judge McNabb Mallory Rule Any violation of time rules in Fed.R.Crim.P. suppress. Lies: Kelekolio: Intrinsic lies ok, but Extrinsic Lies coercive per se. (p. 28): Why do people confess falsely? o 1. Avoid worse conseqnces. If so, then extrinsic lies are more coercive; 2. Confusion Intrinsic more coercive. MIRANDA Custody? Interrogation? Policy: Miranda is not about coercion of confession, but limiting compulsory environment. Messiah Once process has started & has counsel, police not entitled to engage further police action under Amend 6. Escobedo Interrogations must take place in presence of counsel, where requests counsel. Custody Berkemer: Objective test: Would reasble person in situation think hes in custody? Traffic stop not custody. o Bookends: All arrests = Custody; M.E.B. suspect stopped under Terry but not arrested shouldve got Miranda Interrogation Innis: Interrogation means any words or actions of police they should know are reasonably likely to elicit an incriminating response. Focus on perceptions of suspect, not intent of police. Unknown govt agent Perkins: No Miranda warning necessary when police act undercover and ask question. Threat to Public Safety NY v. Quarles: After custody, offr can ask question to prevent future crimes or accidents w/ gun. Purpose of custody immaterial: Mathis: If is detained for one violation but ?ed about another must still give Miranda. o Changing subject: Spring: No constl duty to warn suspect of subject of investigation can change inquiries. Awaiting attorney: Moran No constitutional duty to advise that an atty is waiting; Majority: Reed: must advise. Capacity to Waive Case-spec.; See list on p. 32. INVOCATION OF MIRANDA AND WAIVER How clearly did suspect invoke Miranda? What effect does this have? Clarity: No verbal formula. 4 Positions: 1) Fewest: Any stmt that might be interpreted ends interrogation; 2) Greatest: Ambiguous stmt interrogator must further question; 3) Davis: Invocation must be unambiguous; 4) Minnesota: Which rt? Ambiguous waiver: Butler Explicit stmt of waiver not invariably necessary to support finding waived right (either). o Std of proof Govt must show that confession was voluntary by a preponderance of the evidence. Effect of assertion: o Right to silence: Mosley Did the police scrupulously honor s invocation of right to silence? o Right to counsel: Edwards v. AZ: No further interrogation until counsel is available, or himself initiates. Subsequent Waiver Bradshaw: 1) Did initiate conversation evincing willingness/desire for generalized discussion? 2) Did accused, under totality of circs, knowingly and intelligently waive his right?

IMPACT CURES & REMEDIES Elstad Failure to administer Miranda creates a presumption of compulsion, that doesnt also apply to confession after Mirandaized. Absent deliberately coercive or improper tactics, mere fact suspect made unwarned admissionnot presumptively compulsive. Van Smith After initial invalid confession, every subsequent confession is presumed to be inadmissible o List of factors for rebuttal (p. 33): Time b/w two confessions; Atmosphere; Atty; Psychology; s comprhnsn. Impeachment A Miranda-tainted statement may be used to impeach the s testimony at trial, even where excluded. Fruits Tucker: Use of witnesses whose names were obtained through improper interrogation upheld. o States: Use normal fruits exceptions. IDENTIFICATIONS 2 Concerns: 1) 6th Amend. right to counsel; 2) Due process of conduct of line-up. Due Process Stovall: Prohibition of line-up procs that are conducive to irreparable identifications.; Ramirez: emasculation. 6th Amend Kirby: Counsel not required at line-ups prior to start of the adversarial proceedings. o Wade-Gilbert Rule: Requires presence of counsel at post-arrest identification proceedings.