Criminal Procedure Short Outline PDF

Preview

Summary

Download Criminal Procedure Short Outline PDF

Description

Criminal Procedure Outline I.

Fourth Amendment A. Seizure of a PERSON 1. Would a reasonable person have felt free to terminate the encounter under the totality of the circumstances? And, is this seizure reasonable? 2. Initial question: Did the gov seize a person? If so…. a) Terry Stop (1) Brief, meant to investigate the situation to either confirm or dispel the police officer’s reasonable suspicion. May rise to probable cause and lead to arrest. (2) Must be based on more than a hunch. Police must articulate facts (such as walking back and forth, looking nervous, casing the case). (3) Did the LEO have reasonable suspicion? (a) No -> unlawful (b) Yes -> lawful (4) Asking for an ID or name is not a terry stop. Refusing to ID yourself may lead to an arrest. b) Arrest (1) An arrest occurs when a person is taken into police custody for interrogation or prosecution (2) Did the LEO have probable cause? (a) If no - unlawful (b) If yes - is there a warrant requirement? (i) If arresting someone in their home, you need a warrant. This is the only time when you will need a warrant to arrest. No warrant needed when you have PC unless suspect is in his home (ii) LEO must witness or have a credible witness tell them what happened to have PC B. Evidentiary searches and seizures 1. Absent an exception, an evidentiary search and seizure performed by the government without a warrant is unlawful 2. Analysis: a) Was the search performed by a government agent? (1) If NO, 4th amendment is not at issue b) If YES, did the SEARCH violate the D’s reasonable expectation of privacy? (1) If NO, 4th amendment is not at issue (2) Search: Physical intrusion by the government of a constitutionally protected area where a person has a

reasonable expectation of privacy (3) Reasonable expectation of privacy in places that serve residential purposes. HHOL - home, hotel, office, luggage. Also in curtilage. TOTALITY OF THE CIRCUMSTANCES (4) No reasonable expectation of privacy in open fields, garbage, of anything visible from public spaces. (a) Sensory enhancement- if equipment is accessible to the public, not a search. If not a available to the general public, ie. heat sensor, it is a physical intrusion to a cons. Protected area where there is a reasonable expectation of privacy. c) If YES, did the government have a valid search warrant? (1) If NO, does the search fall within a valid exception to the search warrant requirement? (ESCAPES) (a) If YES, lawful (b) If NO, unlawful (2) Valid search warrant requirements: (a) Issued by a neutral magistrate judge (b) Based on findings of probable cause (c) Has to describe the items and location of the place or items to the searched and seized with reasonable specificity. (3) Good faith exception: if facially valid, and properly executed, evidence will not be excluded (4) If the search warrant was based on (1) false statement, (2) recklessly or intentionally, and it was (3) material, the search may be made invalid. d) If YES, Was the execution of the warrant proper? (1) If YES, search is lawful. (2) If NO, does the search fall within a valid exception to the search warrant requirement? (ESCAPES) (a) Yes- lawful (b) No- unlawful and must be excluded.] (3) If illegal contraband is found within the scope of the warrant, it's admissible. Can't go outside of the scope of the warrant- can't look for a big gun in a small drawer. (4) Must be timely, there must be no unreasonable delay (5) Knock and announce rule: if they fail to follow this rule, evidence will most likely not be excluded. Small violation C. Exceptions to the Search Warrant 1. Absent an exception, an evidentiary search and seizure performed by the government w/o a warrant is unlawful. a) A search is when a government agent physically intrudes into a constitutionally protected area.

2. Exceptions are triggered when: No warrant, invalid warrant, or improper execution of a warrant. 3. Exceptions: a) Exigent circumstances (1) Hot Pursuit (a) Officer in HP of a subject they believe has committed a felony and has PC, is allowed to chase the subject into a constitutionally protected area. (2) Danger of spoilage (a) If police has reasonable belief that evidence will be destroyed (3) Police safety doctrine (a) Reasonable belief that someone is in danger (b) Ie sees someone being stabbed through window b) Search incident to lawful arrest (1) MUST be lawful (2) Covers the arrestee’s wingspan - anything in their reach that they can grab or spoil and containers on the person such a purse as long as it is large enough that it can contain evidence of a crime, drugs or weapon (3) Can reach inside pockets to look for weapons or drugs (4) Vehicle arrests: (ie traffic stop) - police can search for anything within the suspects arm reach EVEN if the suspect is placed in the squad car, arrested or handcuffed and it's no longer within his arm reach if he has a reasonable belief that he will find evidence of that particular crime. (5) Scope is more broad than terry stop - terry is all about officer safety and limited to a pat down of the outer layer of clothing, searching for weapons while SILA involves looking for evidence, searching the pockets and any containers immediately on the person c) Consent (1) A suspect can waive their 4th amendment protections. (2) Must be voluntary- a reasonable person feels free to say no (3) Search limited to the scope of consent (4) Anyone with apparent consent and control can give consent d) Automobile Exception (1) If police have Probable Cause, they can search anywhere in the car they think the evidence is at- truck or a backpack. (2) Scope limited to where they have PC to search. They can

II.

have PC if a credible and reliable witness tells them the information. e) Plain view doctrine (1) Requires an analysis of everything else. (2) Only applies if police are LAWFULLY in the area (3) Anything in the officer's plain view that is contraband may be seized. Ie. searching for drugs and find a weapon. f) Evidence obtained from administrative searches g) Stop and Frisk (1) Search incident to a Terry stop, needs reasonable suspicion (2) If its a valid stop, police can frisk- they can pat suspect down over their clothes, feeling for weapons for the officer’s safety (3) Plain feel exception: if the police feel something while patting down the outer layer of the suspect’s clothing that is plainly obvious contraband - then they can search inside the pocket. If it is contraband, they can seize it without a warrant. (4) Unlike a lawful arrest where they can reach into the pockets, during a frisk they may only pat down the outer layer of clothing. (5) If VEHICLE, Terry Stop -> they may search any area within the immediate reach of the suspect, as long as the police have a reasonable belief that the suspect is armed and dangerous. If it's only a minor violation, there is probably no RB of danger. Search only for weapons and not for evidence of a crime. Interrogations under Miranda A. Ask: where do the statements made to the police fall in the timeline? 1. Suspect taken into custody (5th amendment / was the statement voluntary?) 2. Custodial interrogation begins (5th/voluntary and miranda warnings apply) 3. Suspect is charged with crime (5th/voluntary and 6th amend right to counsel) B. Fifth amendment: protects against government compulsion of involuntary statements or confessions. 1. Any statement obtained from gov compulsion will be considered involuntary and a violation of the fifth amend and inadmissible in court AS WELL AS any evidence obtained as a result of the involuntary statements- FOTPT. 2. Involuntary: if police tactics overbear a suspect’s free will and leaves no alternative but to make a statement or confess. 3. Based on the totality of the circumstances and fact intense. May consider

III.

length of time of the interrogation, the location of the interrogation, tacts used- police are allowed to deceit and use trickery as long as it doesn’t overbear the free will of the suspect. a) It is clearly involuntary if there is physical force, or threat of physical force present. b) The mental or emotional condition of the suspect may make them more susceptible, age may also be considered. C. Miranda rights -> comes from the 5th amend and applies in custodial interrogations. 1. Reasoning: the whole concept of having a suspect in police custody and subjecting them to interrogation is coercive and likely to elicit involuntary statements by the nature of custodial interrogations b/c it is an intimidating situation. 2. Must let suspect know his Miranda rights before CI, or else it is a violation a) Right to remain silent b) Anything can and will be used against you in a court of law c) You have the right to an attorney d) Appointed attorney if can’t afford one 3. Allowed to AFFIRMATIVELY invoke the right to remain silent or to have an attorney present even after first waving rights knowingly and intelligently, at any time. It will be a Miranda violation is police don’t stop the interrogation immediately after rights have been invoked. 4. May restart questioning if: a) Right to remain silent: (1) It is scrupulously honored b) Right to have counsel present (1) 2 weeks pass after released (2) Suspect reinitiates questioning c) Must re-mirandize 5. Miranda Violation when: police fail to read the suspect his rights or if the suspect knowingly and voluntarily waives his rights and later invokes them but the police don’t cease interrogation 6. Evidence obtained as a result of the violation will be admissible, the FOTPT doctrine does not apply to miranda violations. They may come in as long as they are voluntary, and thus not a 5th amendment violation. 7. Statements obtained as a result of the Miranda violation can still be used for impeachment purposes in court to impeach the suspect if he decides to take the stand. Essay purposes: A. Look for any statement made to the police 1. Suspect taken into custody (5th amendment / was the statement voluntary?) 2. Custodial interrogation begins (5th/voluntary and miranda warnings apply) 3. Suspect is charged with crime (5th/voluntary and 6th amend right to

IV.

counsel) B. Custody 1. Government seizure of a person- gov. encounter w/ a person where a reasonable person would not feel free to terminate the encounter. NOT in custody if pulled over by police 2. Arrest- more substantial seizure than a terry stop. Person is taken into custody 3. “Custody” - high degree of restriction of movement. Handcuffed, put in a squad car. Formality of arrest. Not free to terminate, plus more. a) When taken into custody, were worried whether a statement is voluntary, not worried about Miranda violations, only 5th amendment violations. 4. Custody Interrogation a) Taken into custody AND police are engaged in conduct they know or reasonably should know is likely to elicit an incriminating response. b) Location is not indicative- may be in the police car if the police ask questions they know are likely to elicit an incriminating response. c) Must give Miranda warnings, otherwise any statement by the suspect will be a violation of Miranda, inadmissible for substantive purposes. d) Either he will be released or charged with crime 5. Charged with crime a) 6th amendment right to an attorney automatically attaches, unless he waives it 6th amendment: right to effective assistance of counsel A. Applies when a suspect is formally charged with a crime through a prelim hearing, indictment, information or arraignment B. It is a 6th amendment violation where the government deliberately elicits statements from a criminal D w/o his attorney present C. Applies during the “Critical Stages” of prosecution 1. post -indictment line-ups 2. In preliminary hearings to determine whether to charge or prosecute D, but not in prelim hearings to decide whether to detain him during the duration of the trial or bail hearings 3. Does not apply if investigative and D is not present, only if there is an interaction with the gov and D 4. Applies in formal charges, sentencing, please bargains 5. First appeal D. Indigent D’s who cannot afford a private attorney may be appointed one 1. May waive and represent themselves pro se a) Waiver of right to counsel: higher threshold, must knowingly, voluntarily, and intelligently waive. (1) Court must ask if D understands what the 6th amendment

V.

is, what his rights are, and the consequences of waving them. (2) Look at notes for more info b) May be deemed competent to stand trial but not competent to waive right to counsel, and if found incompeted the court will impose counsel E. Offense specific- only covers the formal charge 1. Undercover agents may be placed in jail to ask about a different crime that is still being investigated F. Ineffective assistance of counsel (strickland v. washington) 1. Raised as a post conviction appeal after sentencing 2. 6th amendment requires effective counsel, so this is a violation 3. Strickland v. washington a) “Effective” - requires operating reasonably. Was the attorney negligent and fell below the objectionably standard of reasonableness? (1) No better than a log. Everyone can agree it was unreasonable (2) High threshold to prove b) Material- but for this, is there a high probability the outcome would have been different so that the trial was unfair? FOTPT Exceptions? A. Exclusionary rule: applies to direct evidence such as an unlawful search or confession. B. Evidence obtained as a result of the violation of the 4th, 5th, or 6th amendment, or as a result of the violation (derivative evidence under the FOTPT doctrine), is generally inadmissible unless one of the following exceptions apply: 1. Miranda violation a) Statements are inadmissible b) However, evidence obtained as a result of the violation will be admissible and not tainted 2. Independent source a) Ex: gun to head gets confession about murder weapon location, an hour later they get a tip about the location of the gum. The lawful, independent source will make the evidence admissible even though they had an unlawful source 3. Inevitability a) Police must show they would have inevitability found the evidence for it to be admissible, ie decomposing body in busy complex 4. Attenuation a) Attenuation in causal chain - an intervening cause such as Ds own free will. Ex: D walks on involuntary confession, confesses a year later, it will be admissible as long as its not unlawful 5. Good faith

a) If its a minor violation, it will come in b) 4th amendment -> if they have a facially valid search warrant, they execute it in good faith but its later found to be defective or if the police rely on a law that later becomes invalid -> evidence obtained will still be admissible 6. Knock and announce a) To execute a search warrant properly under the 4th amendment, police must knock and announce before entering. Exclusionary rule will not be applied if police forget or if its a minor violation and there is no other violation, so evidence is generally admissible despite violation 7. Impeachment Purposes a) 5TH amendment - DOES NOT APPLY TO INVOLUNTARY CONFESSIONS b) 4th and Miranda violations- statement may come in to impeach the credibility of the D if he decides to take the stand at trial (1) Foolish to testify if confessed under Miranda c) Not to prove the truth of the matter assertions, only inconsistencies in the statement of the D 8. Harmless error rule a) If D is convicted of a crime and later appeals due to a violation of his 4th, 5th or 6th amendment rights- if gov can show the violation was harmless and it didn't affect the outcome of the trial, conviction will not be overturned. b) Must be proved beyond a reasonable doubt c) Comes up if D is challenging his conviction

Bring up more definitions /rule statements...