Criminal procedure: Chapter 1: basic concept, arrests and seizures. Constitutional protection only apply to government action Even if governmental action exists, there still is no constitutional violation unless the individual himself 1. had a reasonable expectation of privacy and; 2. either the police did not have a valid warrant or they executed an invalid warrantless search. Exception: private person under the direction of government Exception: public and private defense counsel are government actors. A state may grant broader rights under its own constitution than are granted by the federal Constitution. The Exclusionary Rule The primary remedy is the “exclusionary rule,” which prevents the introduction at a subsequent criminal trial of evidence unlawfully seized. This remedy is judicially created, not constitutionally mandated. The remedy provided by the exclusionary rule generally applies to criminal trials Approach in public place Not to seizure, it is okay. A reasonable person would feel free to disregard the officer. Seizure: not free to leave Physically force or, show of authority to infringe freedom of movement. (police intentionally) But not need to be detain the defendant purposefully. Whether a reasonable person feel free to disregard the officer. Types of Seizure: Terry stop Traffic stop Arrest Arrest with warrants Warrantless arrests Terry stop Definition Stop a person when officer has reasonable suspicion based on articulable fact(more than a hunch) to believe criminal behavior engaged. Content Officer can pat down/frisk for weapon, not for evidence. Officer can seize the clear figure contrabands during pat-down. Probable cause arises during terry stop, can make an arrest. Unlawful stop_lawful arrest, ok for evidence. Beyond a Reasonable Doubt → Conviction Probable Cause (“more likely than not”) → Arrest Reasonable Suspicion (articulated and particularized) → Stop An officer’s reasonable mistake of law can give rise to reasonable suspicion Traffic stop Arrest Arrest Warrants Warrantless arrests Search incident to arrest Inventory searches—When the police arrest a driver and impound his car, it may be searched for inventory purposes. Special rule for cellphones—officers may seize a cellphone during an arrest and check the phone for dangers, but police need a warrant to search the phone’s digital information Unlawful arrest_not ok evidence. Reasonable suspicion to stop the car (easy)weapon Not DUI(different) Checkpoint: no need suspicion Probable cause to believe a crime committed Can be without the warrant Pretext arrest: not the real motive to arrest is acceptable. Definition: authorize an officer to arrest a person and enter home to arrest (no business or other home). A police officer may not arrest a person in another person’s home without a search warrant, absent exigent circumstances or valid consent. Exception: consent from the owner. Exigent circumstances. Content: Issued by judicial officer. Probable cause. (need name the person and identify the offence) In public place: for a crime (felony or misdemeanor) committed in the officer or private individual presence or based on probable cause to believe crime committed. (only for a felony) Lawful arrest to search for person and his surrounding area to: 1. Protect officer from weapon and danger. or 2. Prevent the destroy of evidence and concealment. As long as the person has access to the area, it is accepted. Chapter 2: search Definition Occur when government conduct violates a reasonable expectation of privacy. Only unreasonable searches and seizures are subject to the Fourth Amendment. A search occurs when governmental conduct violates a reasonable expectation of privacy. Government: Can be physical intrusion or not Some techs are to be intrusion. Privacy place Privacy place Homes of the defendant, backyard included Hotel room (A motel clerk’s consent to a search is insufficient). Offices Luggage Overnight guest: at least as to the areas of the home to which the guest has permission to enter. In determining whether the area is protected, the following four-factor test applies: i) The proximity of the area to the home; ii) Whether the area is included within an enclosure surrounding the home; iii) The nature of the uses to which the area is put; and A search also may occur when the government physically intrudes upon private property for the purpose of obtaining information. May not have the standing: May involve an individual with no expectation of privacy, such as when incriminating evidence is seized at another individual’s home. No private person GPS or a dog near your house. Dog sniff on public street are not. Not privacy place Public street Open field (even over private flyover) Abandoned stuff, garbage cans left in the street Short-term use of a home (e.g., several hours) with the permission of the owner A prison inmate in his cell a pretrial detainee may have a limited expectation of privacy in his cell. a detainee’s cell may be subject to a routine search, and the detainee’s person may be subject to a strip search or a full-body search after a contact visit with someone from the outside. iv) The steps taken by the resident to protect the area from observation by passersby. Private objects: A person does not have a reasonable expectation of privacy with regard to a smell emanating from his luggage, at least when the smell arises from an illegal substance. When papers and effects are transferred to a third party, such as checks and deposit slips given by a customer to a bank, a person no longer has a reasonable expectation of privacy in these items. Similarly, financial statements maintained by a bank are bank records in which the customer has no reasonable expectation of privacy. Automobile privacy: Officers must have an articulable, reasonable suspicion of a violation of the law in order to stop an automobile. A call to 911 reporting erratic driving may give the police the reasonable suspicion needed to make a traffic stop if the report is reliable. Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. When the purpose of the stop relates to the enforcement of immigration laws, any car may be stopped on a random basis at the border of the United States without a reasonable suspicion of wrongdoing. The driver of a car does not have a reasonable expectation of privacy in the vehicle identification number (VIN) affixed to an automobile. A police officer’s moving of papers that obstructed his view of this number did not constitute a search under the Fourth Amendment, and a gun found while doing so was admissible into evidence. Person and attribute: A demand for a handwriting or voice sample is not a search. DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure There is no reasonable expectation of privacy in conversations carried on with government informants or undercover officers. If one party to a telephone call consents to wiretapping or agrees to record the call at the government’s request, such monitoring will not trigger the Fourth Amendment rights of any other party to the call. A person also runs the risk that a third party to whom she turns over information may disclose such information to the government. Methods of searching: An inspection conducted from the air, Fly over whether by an airplane or a helicopter, does not violate a reasonable expectation of privacy Attaching a device to a person’s body without Device/ Flashlight consent in order to track that person’s movements is a search for Fourth Amendment purposes The use of a flashlight at night to illuminate the inside of a car does not constitute a search for Fourth Amendment purposes Canine Sniff Use of a trained dog to sniff for the presence of drugs is a search if it involves a physical intrusion onto constitutionally protected property. In the absence of a physical intrusion, the use of drug-sniffing dogs does not violate a reasonable expectation of privacy. Field test of substance A field test performed on a substance to determine if the substance is contraband is not a search for Fourth Amendment purposes. Warrant requirement Issued by neutral magistrate Must be supported by oath or affidavit. Must be based on probable cause to believe they are fruits, instrumentalities or evidence of crime Must describe the property and places with particularity. Must executed properly. Wiretapping: 1. Have probable cause and a warrant 2. Must have an end date 3. Must identify whose conversation are to be intercepted. 1. Probable cause: Police officer personal observation Informant (totality of the circumstance) Evidence seized during stops based on reasonable suspicion, in plain view or during consensual searches. Right to attach truthfulness of affidavit (preponderance of evidence) knowingly false info and the false statement are necessary to probable cause. 2. Particularity of place and objects 3. Anticipatory warrant Probable cause will trigger a condition that the condition does occur, the fair possibility that contraband or evidence of a crime will be found in a particular place. 4. Third-party premises Could be issued 5. Execution of warrant By whom: police officer Timing: could be challenged subject to unreasonable delay. Manner: knock and announce the purpose before entering. Exception: exigent circumstances. The exclusionary rule does not apply to evidence discovered as a result of a search conducted in violation of the “knock and announce” rule, if the search was otherwise authorized by a valid warrant. Seizure of evidence not specific: only the place and person name in it. Evidence of crime. Plain view contraband and instrumentalities or fruit of the crime may be seized. Treatment of persons not listed in warrant: Independent justification is needed to search persons not named in a search warrant. However, in conducting a search for contraband pursuant to a warrant, any occupant of the premises to be searched may be detained in a reasonable manner, which may include the use of handcuffs, for a reasonable time while the search is conducted. Such a detention is only justified for individuals within the immediate vicinity of the premises to be searched. If an individual is not in the immediate vicinity of the premises, then a detention of that individual must be justified by some other rationale. Exception to warrant requirement: ESCAPES. Both probable cause and exigent Exigent circumstances circumstances. “totality of circumstances” test. Hot pursuit (only in felony) or imminent danger (emergency) Not apply when officer created the danger. Police need a warrant for DUI blood draw police may also secure the premises for a reasonable time to enable officers to obtain a warrant when the police have reason to believe that the failure to do so could result in the destruction of evidence. Need to be lawful arrest. If the arrest is Search incident to lawful arrest invalid, any search made incident to it is likewise invalid. Time: take place promptly Scope: The right to search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets. The right also extends to containers “immediately associated” with the person (such as a shoulder bag or purse), so long as the containers are large enough to conceal a weapon or evidence of a crime. Limit to the immediate area around the individual: from which a weapon may be concealed or evidence destroyed. DNA sample could be collected. If the arrest occurs in a home, it is permissible to search “closets and other spaces immediately adjoining the place of arrest from which an attack could be launched.” Exception: the search incident to lawful arrest exception does not extend to an arrestee’s cell phone. Already in the police car, cannot search the car. No need for officer to warn his right to refuse. Consent automobile Plain view Third party can consent when he has apparent authority. Officer cannot search over the objection of a present occupant but can search when he is not present and other occupant consent. If the officer conducting the search erroneously states that he has a warrant, then permission given in reliance on that statement does not constitute consent. A third party has the authority to consent to a search of property that she owns or occupies. The defendant can generally suppress evidence seized during third party consent unless (i) an agency relationship exists between the third party and the defendant that gives to the third party the right to consent on behalf of the defendant, or (ii) the defendant otherwise gives the third party such rights with respect to the property that the defendant assumes the risk that the third party would allow the property to be searched. Parent consent: When a child lives with a parent, the parent has the authority to consent to a search of a child’s room even if the child is an adult. However, a parent may lack authority to consent to the search of a locked container inside the child’s room, depending on the age of the child. Scope of consent: Although a search is limited to the area to which the consent applies, the search may extend to areas that a reasonable person would believe it extends. Could do inventory search of impounded vehicle and within reach of passenger compartment. Could search when probable cause believe has contraband, depends on what stuff officer is looking for. Only when legally present, no movement at all. (i) the officer is on the premises for a lawful purpose, and (ii) the incriminating character of the item is immediately apparent. Evidence obtained from administrative searches Stop and frisk Terry stop of a car If the officer is not legitimately on the premises, the plain view doctrine does not apply. 1. Administrative warrants: no probable cause required. 2. Warrantless administrative searches: Example: airplane boarding, international border, gun shop, liquor stores. Public schools search. Oral statements seized by wiretaps, when matters of national security are at issue; Vehicle checkpoints and roadblocks set up to stop cars on the basis of a neutral articulable standard and designed to serve a limited purpose closely related to the problem of an automobile’s inherent mobility Terry stop: limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest. Only reasonable suspicion, based upon articulable facts. Whether reasonable suspicion exists is based on the totality of the circumstances. Frisk: Under the “plain feel” exception, if an officer conducting a valid frisk feels an object that has physical characteristics that make its identity immediately obvious, then the officer may seize the evidence. Police may also briefly seize items if the officers have a reasonable suspicion that the item is or contains contraband. Police also can require that the detained person identify himself. Failure to comply with this request can result in the arrest of the detained person. Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if: i) The police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons; and ii) The search of the passenger compartment is “limited to those areas in which a weapon may be placed or hidden.” Police may order occupants out of a vehicle that they have lawfully stopped. When police lawfully detain a driver or a passenger after a traffic stop, they may frisk the person if there is reasonable suspicion that the individual has a weapon. The police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, so long as they have probable cause to do so. Any other evidence observed in plain view may also be seized. Automobile related: Car frisk When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspect’s vehicle, limited to those areas in which a weapon may be placed or hidden. 2. Traffic Stops - Three important principles: (a) In a traffic stop, both the driver and the passenger are seized, such that either can challenge the legality of the stop. (b) In a traffic stop, the officer may, in her discretion, order both the driver and the passengers out of the car. (c) Dog sniffs at traffic stops are permissible provided the “sniff” does not prolong the stop. Search incident to arrest in automobile: PERMISSIBLE SCOPE: interior cabin, including closed container, but not the truck. “SECURED”VERSUS“UNSECURED”ARRESTEES: Once an officer has “secured” an arrestee (by, for example, handcuffing him and placing him in the squad car), the officer can search the arrestee’s vehicle only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made. Inventory search is okay to the impound car. Warrantless search: automobile exception Standard: Police officers need probable cause to believe that Weapon or contraband will be found in the vehicle. Where can police officers search? The entire vehicle and they may open any package, luggage, or other container that may reasonably contain the item(s) for which there was probable cause to search. Traffic stops and auto searches: Sometimes what begins as a routine traffic stop results in a search of all or part of the vehicle. For the search to be lawful, an officer does not need probable cause to search the vehicle at the time the car is pulled over, provided he acquires it before initiating the search. Chapter 3: Interrogations Fifth amendment: no person shall to compelled to incriminate himself. Scope of privilege: 1. Natural person: no corporation 2.Only to testimonial evidence. Not physical evidence. 3. Apply to testimony would be a link in the chain leading to a prosecution or conviction. 4. Some given the immunity for the statement, can nor continue refuse to answer. A defendant waives the privilege by taking the witness stand; a witness waives the privilege by disclosing self-incriminating information in response to a specific question. Having taken the stand, the defendant cannot assert the privilege in response to the prosecution’s proper cross-examination of his testimony, including impeachment questions. The statement must be made by the individual to the government. Miranda: The Fifth Amendment in a Police Interrogation Context Receive Miranda must before custodial interrogation. Interrogation Miranda warning: Exception: 1. When public safety is at risk 2.The “routine booking question” exception allows police to ask a suspected drunken driver routine biographical questions and to videotape the driver’s responses without first giving the driver Miranda warnings. Custodial: has been arrested or is not free to leave. Must be in custody or no warning is required. Any statement can be used. Traffic stops generally are not considered custodial. Either asking question or conduct that will elicit a response. Dos not include volunteered statement. Does include induced statement. Does not include routine booking questions. Before conduct custodial interrogation. Must ask whether understands or not. If the police have no intention of questioning the individual, or if the individual is not in police custody, then the Miranda warnings are not applicable. Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant waives those rights knowingly and voluntarily. 3.Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer. Police must cease question if Interrogation tactics: Confession must be voluntary. Confession can be product of fraud or deceit. Confession obtained by threat is inadmissible. Consequences of fifth amendment violations: Involuntarily obtained statement Never admissible against defendant. Whether to overturn: harmless error standard Evidence is fruit of poisonous tree Chapter 4: Sixth amendment v. fifth amendment 5th Must be affirmatively invoked by the D Apply to custody interrogations The failure to give a suspect the Miranda warnings does not require suppression of physical fruits of the suspect’s “unwarned but voluntary statements.” The warnings, which must be given before interrogation begins, need not be a verbatim repetition of the language used in the Miranda decision. If the defendant voluntarily initiates communication with the police after invoking his right to counsel, a statement made by the defendant, such as a statement that the defendant spontaneously blurts out, can be admissible because it is not made in response to interrogation. 1. invoking the right to remain silent. Must use affirmatively words. After substantial period of time, police could go back give the warning, ask again or 2. invoking right to counsel all question needs stop unless either: a.the lawyer is present or b.the defendant initiates contact police can not go back and ask again. Miranda violation statements Inadmissible to the case, can be used to challenge the credibility. Evidence obtained as a result of voluntary statement is admissible. 6th Automatically attach there is an indictment, information, or other formal charges. Unless a defendant knowingly and intelligently waives the right. Offense-specific, only for the offense he has been actually charged. Custody or not. Cannot be questioned without the lawyer any time. Voluntary are not protected by Miranda. All felony/ or misdemeanor prosecution jail time is imposed. All critical stages of the prosecution. (hearing, post indictment line up, interrogation and all of trial). Not include: pre-indictment Photo array. Identification procedure Photo array D or his lawyer has no right be present Line up Pre-indictment lineup-no right to counsel Post- indictment lineups: has a right to counsel and the evidence must be excluded if the right is violated. Line up evidence at trial: Would be impermissible subjective in a lineup and excluded by the court. In court identification: prosecution must establish clearing convincing evidence. Exclusionary rule and its exception 1. apply only at trial 2. must be D’s rights. (driver and passengers can both challenge) 3. Based on fourth, fifth and sixth amendment. Apply to violation of constitution and result of initial violation. 4. exceptions: still admissible a. knock and announce b. inevitably discovery: would have been discovered through lawful means c. independent source: relevant evidence on independent source d. attenuation in the causal chain: intervening events e. good faith: a) An existing law that was later declared unconstitutional, or b) A warrant that, while facially valid, is later found to be defective. Unless: a. The warrant was obtained by fraud b. Warrant was defective on its face c. The magistrate wholly abandoned his judicial role. f. Negligence does not necessarily trigger the exclusionary rule unless the exclusion could meaningful deter the sufficiently deliberate policy conduct. If the question involves whether a conviction should be overturned (rather than simply whether the evidence should be suppressed), apply the harmless error rule: � Ask, if this piece of evidence had not been admitted, would it make a difference to the outcome? � Fourth Amendment: Was there a search? Was there a seizure? If yes, was there probable cause? � Fifth Amendment: Was there a Fifth Amendment interrogation violation? Was the defendant in custody? Was there an interrogation? Was the defendant given warnings? Did he invoke his rights? � Sixth Amendment: Did the Sixth Amendment right to counsel attach? Was this a critical stage? Pretrial procedures: Fifth Amendment’s Presentment Clause Federal charge: must be initiated by indictment. Probable cause to believe D committed the crime. Unless waived by D. State: indictment or information (probable cause by judge) Grand jury: Grand jury: evidence illegal and hearsay is okay Prosecutor: no duty exculpatory evidence Defendant: no right to testify Witness: to right to counsel within the grand jury room Secret proceeding/ not to be unanimous is okay Competence to stand: Comprehend the nature and assist the lawyer Also can plead guilty and waive the right to trial. Bail: no excessive bail. Not have to be offered. No bail when flight risk or danger to community, o There is a presumption in favor of release pending trial. o Courts can impose pretrial release conditions on defendants, such as house arrest, avoidance of particular people, or reporting requirements o There is a presumption against release after conviction, pending appeal. Guilty pleas: Waive the trial rights. Knowingly and intelligently waive. Plea allocution: no force, promise, factual basis. D entitled to competent assistance from counsel. Trial process: jury Serious offenses, more than 6 month. The Sixth Amendment right to counsel attaches in misdemeanor cases only if a sentence of incarceration is actually imposed. Jury size: Federal: 12 members and unanimous State: 6 or more. (not unanimous is okay) 6 must be unanimous Selection: Jury pool: fair cross section Petit or petty through voir dire: Challenge for cause: unlimited, deliberated judgment Peremptory challenge: made for anything Exception: Baston doctrine: no race or gender Limited number Actual seated: impartial, not have to be cross selection Speedy trial rights Statutes of limitation Against delay: Four factor: Public trial rights First and sixth amendment: Confrontation clause: Definition Crawford doctrine Burton category Committed. End of the continuing offenses Due process of fifth and fourteenth Speedy trial of sixth(time of arrest or indictment and trial) 1. length of the delay 2. reason for the delay 3. whether D asserts the rights to speedy trial 4.prejudice to D Protect the rights of D (sixth) and the public (first) to attend public trials 6 guarantee D the right to confront the witness against. Right to compulsory process to produce own witness Testimonial: 6 would bar if: 1.the declarant is unavailable and D had no prior opportunity to cross examine the witness. non-testimonial: rules of evidence A defendant’s own statements are always admissible against him. This is true even if the defendant does not testify at trial. � If there are co-defendants, a non-testifying co-defendant’s statements are inadmissible against the co-defendant. The government can place the burden of proof with regard to affirmative defenses on D. Judge Prosecutor: Prosecutorial Misconduct No natural or apparent bias, no impair impartiality Brady doctrine: turn over all material exculpatory evidence to defense. 1. show D is not guilty 2. D could use to impeach the credibility of witness material: could change the outcome. P may not knowingly present false testimony Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a mistrial or reversal of a conviction. Other forms of prosecutorial misconduct may result in discipline to prosecutor but generally do not result in any consequence for a defendant. May not contact D outside the presence of his counsel. A prosecutor may not comment on a defendant’s failure to testify at trial or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant’s Fifth Amendment right to remain silent). � A prosecutor may, however, comment on a defendant's silence before his Miranda rights attached. Defense counsel 1. conflict of interest 2.effective assistance Choice of counsel Effective assistance of counsel at all critical stages of prosecution Joint representation, judge must warn May be presumption of prejudice Strivkland test, two- part test 1. performance: fall below the wide range of objective reasonable conduct 2.prejudice: reasonable probability that the result would be different if the counsel performed effectively. Cases that go to trial: Defendant must show that there was a reasonable probability that he would not have been plea guilty if the lawyer had done a proper job. Guilty pleas: Defendant must show that he would not have pleaded guilty if his lawyer had not given him bad advice or performed ineffectively If a defendant is denied effective assistance of counsel, either at trial or in the guilty plea process, his conviction must be reversed because the defendant has already shown that he was prejudiced. Lawyer: admitted in the jurisdiction, available for trial and no conflict. A defendant who is denied the retained counsel of his choice is entitled to have his conviction reversed regardless of whether the lawyer who actually represented him at trial provided effective assistance of counsel. Indigent defendants: not entitled to appointment of the lawyer of your choice As long as they receive competent assistance at trial, they have received all the Constitution guarantees them. D can represent themselves. No back up lawyer. Sentencing: Cruel and unusual punishment clause of eighth amendment Double jeopardy clause of fifth amendment Apprendi line under sixth amendment Supreme court gives government to any length to any crime. Juveniles cannot be sentenced to life without parole for nonhomicide crimes and mandatory LWOP cannot apply. Dealth is okay when victim dies. No under 18. No suffer from mental retardation No insane at the time of execution. State are different, No unusual punishment: Must be convicted of a crime/could be prison condition Same offense after acquitted, convicted, multiple prosecution or punishment for same. Blockburger test: Different victims are not same. Separate sovereigns rules are okay Can be charged and tried with offense and a lesser offense at the same trial but only punished for one. Attach: jury sworn in or first witness sworn in. Mistrial: Manifest necessity: yes No manifest necessity: no The Sixth Amendment right to a jury trial prohibits judges from enhancing criminal sentences beyond the statutory maximums based on facts other than those decided by the jury beyond a reasonable doubt. Exception: Sentence enhancement based on prior criminal convictions need not be found by a jury.