Constitutional Criminal Procedure Outline PDF

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Constitutional Criminal Procedure Outline...

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Constitutional Criminal Procedure Outline

Table of Contents 1. 4th Amendment Test 2. Reasonable Expectation of Privacy a. No Expectations of Privacy 3. Government Conduct 4. Reasonable Suspicion 5. Probable Cause 6. Warrant

a. Arrest Warrant b. Search Warrant 7. Warrant Exceptions a. Plain View b. Regulatory/Administrative Search c. Search Incident to Lawful Arrest (SILA) d. Inventory e. Sweep (Protective) f. Evanescent Evidence g. Consent h. Crime i. Automobile j. Stop & Frisk k. Hot Pursuit/Exigent Circumstances 8. Remedies for Illegal Searches a. Exclusionary Rule b. Fruit of the Poisonous Tree Doctrine 9. Interrogations & Confessions a. 5th Am: Privilege against Self-Incrimination b. 14th Am: Voluntariness/Due Process c. 5th Am: Miranda Rights d. 5th Am: Right to Counsel e. 6th Am: Right to Counsel

4th Amendment Test:

1. Step 1: Was there a 4th Amendment right? a. government conduct + reasonable expectation of privacy 2. Step 2: Was there a warrant? a. No: i. Continue to step 3 b. Yes: i. Test the warrant’s validity under warrant law 1. 4 requirements: a. Probable cause b. Precise c. Neutral and detached magistrate d. Properly executed 2. If the warrant is valid: a. No violation of 4th Amendment 3. If the warrant is not valid: a. Can it be saved with the Good Faith Defense? i. If yes, no violation of 4th Amendment ii. if no, proceed as if no warrant 3. Step 3: Does the situation fall into one of the exceptions to warrant requirement? a. Exceptions: PRAISE CCASH i. Plain View ii. Regulatory/Administrative iii. Arrest (Search Incident to Lawful Arrest) iv. Inventory v. Sweep (Protective) vi. Evanescent Evidence vii. Consent viii. Crime (committed in officer’s presence) ix. Automobile x. Stop and Frisk xi. Hot Pursuit / Exigent Circumstances b. If it does not fit into one of the exceptions, then violation of 4 th Amendment 4. Step 4: Discuss application of the Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine

Reasonable Expectation of Privacy Reasonableness of Search 2

1. Do schools need warrant to search students? a. No; only need reasonable suspicion to search b. Balance invasion of privacy + school’s interest in safety (New Jersey v. TLO - Regulatory/Administrative exception) 2. Reasonable Expectation of Privacy Test (Katz Test) a. (1) Subjective expectation of privacy i. What did the person do to show they believed this would be exposed to the public? ii. It doesn’t matter what the person thought; it matters what the person did and whether, objectively, what they did warrants their thought that it wouldn’t be public b. (2) This subjective expectation of privacy must be one that society is prepared to consider reasonable of legitimate. c. **Standing: if you have a reasonable expectation of privacy, you have standing to bring a claim (Rakas v. IL) i. Standing exists if: 1. Person owns the premises searched 2. Person lives on the premises searched (i.e. substantial connection) 3. Person is an overnight guest at the premises searched 4. Person has right to exclude others 5. Person has continuing access/legitimate presence possessory interest in things seized 6. Subjective expectation of privacy 7. It’s your body ii. Standing does not exist in any other circumstances 1. Ownership of property seized never establishes standing (Rawlings v. KY) iii. Overnight guests have standing to object to search of place he is staying unless owner consents (MN v. Olson); if not overnight guest or there for business, no standing (MN v. Carter) 3. No Expectation of Privacy: a. Things in Plain View i. if officer is where he has a right to be, anything he sees in “plain view,” there is no reasonable expectation of privacy and there is no search ii. Where evidence is accessible to all parties and no one will provide information on ownership, it is reasonable to infer a common enterprise (MD v. Pringle)

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b.

c.

d.

e.

f.

g.

iii. Person’s mere proximity to others independently suspected of criminal activities does not, without more, give rise to PC (Ybarra v. IL) Items Held Out to Public i. physical characteristics: 1. physical characteristics of voice, facial characteristics, handwriting and fingerprints (anything discernible by mere observations) are constantly exposed to public and there is no search ii. Comings and Goings in Car 1. Roads are public place and can see into a car (Jones v. US) 2. A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another and fact that a tracker, rather than visual surveillance, was used does not alter situation (US v. Knotts) Flyovers i. Aerial observation by officers/citizens not a search/violation (FL v. Riley) 1. Method of observation is not sufficiently rare 2. Does not interfere with normal use 3. No “intimate details” observed 4. No undue noise, wind, dust, or threat of injury Conversation with “Friends” i. No reasonable expectation of privacy in conversations with “fake friends” who report back to police or wear wire 1. 4th Amendment does not protect wrongdoer’s misplaced trust in a person (Hoffa v. US, US v. White) Checks i. Bank has reasonable expectation of privacy as it’s their business record, but you do not. You willingly relinquish document to the payee and the bank, therefore public. (US v. Miller) Garbage i. Considered abandoned; no reasonable expectation of privacy in things you abandoned (CA v. Greenwood) Open Fields Doctrine i. person cannot legitimately demand or have reasonable expectation of privacy in activities conducted outdoors, except in area immediately surrounding the home (curtilage) 4

ii. Open Field = any unoccupied or undeveloped area outside of curtilage (Oliver v. US) iii. Curtilage = extension of “intimate activity” associated with the “sanctity of a man’s home and the privacies of life” iv. Curtilage Test: 1. proximity of area claimed to be curtilage (60+ yard not curtilage) 2. whether area is included within enclosure surrounding the home 3. nature of uses to which area is put 4. steps taken to protect area from observation h. “Plain Sniff” Doctrine i. If a dog is where a person has a right to be, there is no reasonable expectation of privacy in the smells in a public place that the dog can smell (US v. Place, IL v. Caballes) 1. Dog cannot enter curtilage (without warrant) to sniff at door of home (FL v. Jardines) 2. Dog’s positive alert is enough for PC (FL v. Harris) i. “Plain Feel” Doctrine i. No reasonable expectation of privacy from basic touching of suitcase, but cannot physically manipulate (subjective expectation) j. Plain Hear i. No reasonable expectation of privacy in conversations/ sounds that can be heard without enhancements. ii. If using enhancements, it must be used by general public to be allowed (Bond v. US) iii. Thermal imaging of the home is not allowed; invasion of the privacy of the home (Kyllo v. US)

Government Conduct 1. Gov’t can use fruits of private search a. If private person searches something and turns it over to police, they may use the evidence 2. Does not apply when “state” is not acting in official capacity 5

a. Ex. off duty police officer working as security guard 3. “State Actors” include agents or private actors acting at the behest of the state a. Includes gov’t officials, not just police b. Ex. principals, teachers, state agency employees c. see Administrative Searches for applicable standards

Reasonable Suspicion 1. Definition: a. More than hunch; fair possibility, possible cause, some objective evidence

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b. Would the facts available to the officer at the moment of seizure warrant a man of reasonable caution in the belief that a crime is, was, or is about to take place i. Need ‘specific and articulable’ facts with rational inferences ii. Particularized and objective basis for suspecting particular person stopped for criminal activity iii. Common sense analysis; use officer’s expertise that certain facts are indicative of criminal activity iv. Assess totality of circumstances 2. Totality of Circumstances: a. Officers look at a series of acts, each of them perhaps innocent in itself, but which taken together warrant further investigation b. Factors: i. Innocent conduct can be considered ii. Officers can detain to resolve ambiguous conduct iii. Time of the day iv. Number of people in the area v. Character of the neighborhood vi. Whether officer was in uniform vii. Way the runner was dressed viii. Direction and speed of flight ix. Whether behavior otherwise unusual x. Race or color alone is NOT sufficient basis for making an investigatory stop 3. Seizure a. A person is seized only when, by means of physical force or show of authority, his freedom of movement is restrained i. Would a reasonable person feel free to leave? b. Only when such a restraint is imposed is there any foundation whatever for invoking constitutional safeguards. c. Test: i. Police must: 1. Accost individual a. Approach and speak in intimidating way, and/or 2. Restrain individual a. Use physical force or show of authority submit/imminent stop ii. So that 1. A reasonable person a. Don't look at subjective state of individual's mind, but 7

b. Consider how innocent person would feel/act 2. Would not feel free to ignore police presence and got about their business a. Not considering factors independent of police conduct d. Factors: i. Manner of Police: 1. Intimidation; # of officers; guns; level, #, type of questions; degree of search; psychological restraint not enough; informed free to leave?; effectively kept from leaving?; police intent (unarticulated intent doesn’t matter) ii. Location: 1. In field; time of day; area of town; stationhouse; moved; familiar/unfamiliar; consent; already required meeting (ex. Probation) iii. Duration: 1. No longer than necessary to effectuate the purpose of stop; did D cause or contribute to delay; more out in public it is, less likely person is in custody or under arrest 2. Often the key distinction between stop and custody

Probable Cause 1. Definition: a. More than hunch, fair probability, probable cause, substantial basis 2. Determined by magistrate when warrant is obtained and by police when warrant not obtained (exception used) 8

a. Exists where facts and circumstances, within the arresting officers knowledge and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been, is being, or is about to be committed (Draper v. US) i. Trustworthy evidence that would make a reasonable person think it more likely than not that proposed arrest is justified (IL v. Gates) 3. Sources to Establish: a. Officer’s own observations i. Observed contraband ii. Observed criminal activity by officer or non-criminal source iii. Flight of suspect when approached iv. Physical clues v. Voluntary admissions vi. Suspicious/surreptitious conduct vii. Previous criminal record viii. Presence in high crime area b. Non-Criminal Sources i. Ordinary Citizen Informants 1. presumption he’s reliable informant even if never previously tested 2. Gates Test: a. Magistrate must make a practical, common sense decision whether, given all circumstances in affidavit, including veracity and basis of knowledge of persons supplying information, there is fair probability that contraband or evidence of crime will be found in particular area 3. Corroboration a. Corroboration of some of informant’s facts extremely important; may be non-criminal activity; future actions very strong 4. Admission a. Admission of participation in crime by informant has strong import; carries credibility even if informant paid or promised break 5. Suspect’s Reputation a. Suspect’s reputation can be considered as part of totality of circumstances; never enough alone ii. Other Police Officers 9

1. Ask ‘did maker of statement have probable cause?’ c. Pre-textual Stops i. Decision to stop an automobile is reasonable where police have probable cause to believe a traffic violation has occurred (Whren v. US) 1. Do not care about subjective intent of officer

Warrant 1. Standards for Reasonableness: a. Search, Custody, Arrest i. Probable Cause 1. operating under exception to warrant (requiring probable cause), or 2. operating under warrant (requiring probable cause) b. Stop & Frisk 10

i. Reasonable Suspicion

----------------------------- ------------------------Reasonable Suspicion Probable Cause

-------------------------- Reasonable Doubt

2. Anticipatory Warrant a. Police anticipate something illegal is going to be in certain place at a certain time, and getting a warrant ahead of time, for the future i. all warrants are theoretically “anticipatory” b. Probable cause doesn’t look at whether evidence exists now or when warrant is executed 3. Public Warrantless Arrest for Misdemeanor a. If officer has probable cause to believe individual has committed even a minor criminal offense in his presence, he may arrest the offender (Atwater v. City of Lago Vista) i. To arrest for felony, only need probable cause ii. To arrest for misdemeanor, must have probable cause and offense committed in officer’s presence 4. Searches in Jails a. Exception to warrant requirement b. No need to get warrant to search your body or find probable cause that you have contraband on you (FL v. Burlington) 5. Arrest a. Any seizure of person which raises to a higher level of intrusion than a stop under Terry 6. Arrest Warrant a. Required to arrest someone in his home for any type of crime or take him in for questioning or fingerprinting b. Required to arrest someone for a misdemeanor not committed in officer’s presence c. Required to arrest someone in another person’s home + search warrant to enter the third-party home (Steagald v. US) 7. Exceptions to Arrest Warrant a. Exigent Circumstances i. No warrant needed to go into private home and make arrest if there is PROBABLE CAUSE that… 1. (1) Delay in getting warrant would gravely endanger officer's lives or lives of others 2. (2) Getting warrant would permit suspect's almost certain escape (Santana) 11

3. (3) Imminent destruction of evidence (Minn. v. Olsen) (Evanescent evidence) 4. (4) Hot pursuit: pursing a felony suspect and he runs into his or another's dwelling. (Warden v. Hayden) (still need probable cause) a. Possible that it must be a "dangerous" offense (Welsh v. WI) 8. Search Warrant a. (1) Neutral and detached magistrate much issue warrant i. Not neutral/detached if: 1. Wholly abandoned judicial rule, received fee for issuing warrant, involved/stake in law enforcement, participates in search b. (2) Magistrate must find probable cause i. Must have sufficient underlying facts and circumstances in affidavit/sworn testimony that a reasonable person could independently conclude that seizable evidence would be found on the premises or person to be searched (or for an arrest warrant, that the crime has been committed and the accused is responsible) 1. Affidavit must not be ‘stale;’ recent enough to determine items wouldn’t have been removed ii. To have probable cause to search, you must show by substantial trustworthy evidence that it is more likely than not that specific items to be searched for are connected with criminal activity, and that these items will be found in the place searched. c. (3) Warrant must describe with reasonable certainty the place to be searched and the items to be seized, or the person to be seized and the lawful purpose for search or seizure i. No warrant needed for public arrest for felony ii. Arrest warrant to arrest in home iii. Arrest warrant + search warrant to arrest in 3rd party home iv. What can be seized with or without warrant? 1. Contraband, fruits of a crime, evidence of a crime, instrumentalities of a crime v. Affidavit info must be in warrant and be specific enough for any officer to execute without knowledge of the case d. (4) Once warrant is issued, must be properly executed i. “Knock & Announce” Rule 1. Must knock and announce authority and purpose upon arrival 12

2. Reasonable wait time is based on facts known to officer at time of knocking ii. “Knock & Announce” Exception 1. Can dispense with rule at execution if “reasonable suspicion that knocking and announcing their presence would be dangerous or futile or inhibit effective investigation 2. Dispensing will not cause evidence to be excluded; only get Bivens Action or similar civil remedy iii. No “Knock & Announce” Warrant 1. Magistrate can find probable cause to dispense with rule pre-execution iv. “Sneak and Peek” Warrants 1. Allow police to enter home, without owner knowing, to search and use info attained to get full warrant v. Execution 1. Without unreasonable delay 2. During day-light hours (6am – 10pm) e. Challenging Warrant i. *if any part not valid (except 4), D will get benefit of Exclusionary Rule and Fruit of Poisonous Tree Doctrine 1. must prove by preponderance of the evidence: a. False statement in the affidavit; and b. False statement was made intentionally or reckless disregard for truth; and c. False statement was necessary to finding of probable cause. ii. Good Faith Defense 1. If officer relies on good faith of defective search warrant, D will not get benefit of Exclusionary Rule 2. If search warrant valid on face a. (all req. met except probable cause) b. Good faith will still apply c. UNLESS affidavit is so lacking in probable cause that no reasonable officer would have relied on it 3. If search warrant not valid on face a. (any other req. not met) b. Good faith will not apply i. If officer lied or misled magistrate ii. If magistrate wholly abandoned role

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Warrant Exceptions PRAISE C-CASH 1. Plain View Exception: a. (1) Officer is lawfully where he/she has a right to be/within scope of lawful activity i. Even if you see it, you cannot seize it unless you have right to be/go into place where it is located b. (2) Items are immediately apparent as evidence of crime i. If further manipulation of object is needed to determine whether probable cause exists, that is separate search, which requires its own justification (cannot use plain view) c. (3) Must have probable cause to believe items are: 14

i. ii. iii. iv. v.

Contraband Fruits of a crime Evidence of a crime Instrumentalities of a crime *practical, non-technical probability that incriminating evidence is involved, as understood by those versed in law enforcement d. Plain Feel Doctrine i. Officer conducting frisk may seize any evidence he “feels” if he has probable cause to believe, based on pat down only, that it is contraband 1. Cannot manipulate 2. Applies to person and items 3. The fact that officer is interested in item of evidence and fully expects to find it during search does not invalidate its seizure, if search is confined in area and duration by terms of warrant, or valid exception 2. Regulatory/Administrative Search Exception: a. Must be conducted by gov’t official for legitimate admin. or regulatory purpose (“special need”) i. If justified by “special need” other than traditional criminal law enforcement, court applies balancing test to determine reasonableness b. Balancing Test: i. State’s interest or need for a particular search or seizure v. the degree of intrusion ii. State’s Interest: 1. That dangerous conditions be prevented or abated 2. Other means for meeting the end (visual inspection, information from occupant) iii. Intrusiveness: 1. Neither personal nor aimed at evidence of crime c. Rationale: i. “Hedged w/ safeguards – routine, systemized ii. Warrant would be ineffective here – “rubber stamp” iii. Public interest in health and safety of urban populationcomplying with minimum standards for fire, housing, and sanitation d. Allowed Searches: i. Fixed Boarder Patrol Checkpoints (Martinez-Fuerte) ii. Sobriety Checkpoints (Sitz) iii. Administrative inspections in “closely regulated” businesses (Burger) 15

iv. Drug testing student athletes (Veronica) v. Drug testing US Customs Officials (Skinner) 3. Se...