CRIMINAL PROCEDURE OUTLINE
1. INVESTIGATION AND POLICE PRACTICES
4TH AMENDMENT
WARRANT REQUIREMENT
WARRANTLESS SEARCHES AND SEIZURE
ELECTRONIC SURVEILLANCE
IDENTIFICATIONS
CUSTODIAL INTERROGATIONS
THE EXCLUSIONARY RULE
2.
3.
4.
5.
6.
PRELIMINARY PROCEEDINGS
TRIAL
SENTENCING
REVIEW PROCEEDINGS
PRISONER’S RIGHTS
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1. INVESTIGATION AND POLICE PRACTICES
4TH AMENDMENT
GOVERNMENT ACTION
People should be free from unreasonable government searches and seizures
GOVERNMENT
Publicly paid police
Citizens acting at their direction or behest
CONDUCT CONSTITUTING A SEARCH OR SEIZURE
SEARCH
Governmental intrusion into an area where a person has a reasonable and justifiable
expectation of privacy
SEIZURE
Exercise of control by the government over a thing or person
if a person reasonably believes (s)he is not free to leave a encounter with a
government official
requires physical application of force by the officer or submission to the force
REASONABLE EXPECTATION OF PRIVACY
Depends on a totality of circumstances (ownership, location) with or w/o a warrant
Must be his own reasonable expectation of privacy
STANDING
Person owned or had a right to possession of the place searched or
Place searched was in fact person’s home or
Person was an overnight guest of the owner of the place searched
THINGS HELD OUT IN PUBLIC
General rule – no expectation of privacy
Sound of one’s voice
One’s handwriting
Paint on the outside of a car
The smell of one’s luggage or car but not squeezing
Account records held by the bank
An automobile movement on public roads
Magazines offered for sale
“Open fields” doctrine
Area outside the cartilage (dwelling house and outbuildings)
Garbage left for collection outside the cartilage
Fly-Overs
VIN
Reaching inside the vehicle to move papers to identify VIN
PROBABLE CAUSE
DEFINITION
Fair probability that contraband or evidence of a crime will be found in a particular place
EXISTENCE
When police have at the moment of arrest, knowledge of the facts and circumstances
______grounded in reasonable trustworthy information sufficient to warrant a reasonably
______prudent person to believe that the suspect has committed or is committing a crime
SOURCES OF INFORMATION
Police officer personal observation, experience, training, expertise to draw inferences of
criminal activity from behavior that is not facially criminal
Reliable information from known informant of independent source that can be corroborated
Reliability of informant and basis for information, relevant but not required
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Informant’s identity not required to be revealed
Evidence
seized during stops based upon reasonable suspicion
discovered in plain view, during consensual searches and seizures
Association with a person for whom police have probable cause to arrest
“BEHIND THE FACE” OF THE AFFIDAVIT
Defendant can contest the validity of affidavit information IF
False statement included in the affidavit by affiant (police officer) and
Affiant intentionally or recklessly included the statement and
False statement was material to the finding of probable cause
WARRANT REQUIREMENT
REQUIREMENTS FOR A VALID WARRANT
Issued by a neutral and detached magistrate
Be based on probable cause
Particularly describe the place to be searched or items to be seized
PROCESS
Judicial officer (magistrate) must assess the affidavit to decide whether police have probable cause:
To make arrest
To conduct a search or
To seize evidence, instrumentalities, fruits of a crime or contraband
Judicial officer must make an independent assessment regarding probable cause
Evidence must provide a “substantial basis” for the determination of probable cause
Judicial officer cannot make a decision based on
per se rules (not a fixed and rigid formula)
knowledge gained during prior illegal searches
Warrant is invalid if affidavit is based on stale information
PARTICULARITY OF WARRANTS
Warrant must describe with particularity the
Place to be searched and
Persons or things to be seized
Particularity exists if
Officers can with reasonable effort ascertain and identify the place intended
EXECUTION OF WARRANTS
MUST BE EXECUTED BY THE POLICE
In home
no media allowed
no third party allowed unless present to aid execute the warrant
MUST BE EXECUTED WITHOUT DELAY
Because probable cause may disappear
KNOCK AND ANNOUNCE
Officer must announce his authority and purpose before entering
Officer must wait admittance for a reasonable time
Officer may not exceed the terms of the authorizing warrant
EXCEPTIONS:
may resort to forcible entry only if denied admittance
fear that evidence will be destroyed allows for a reduced wait 15-20 seconds
fear that announcement would be dangerous or futile or inhibit the investigation
OTHER ASPECTS
Seizure of instrumentalities of crime even if not specified in the warrant is allowed
Search of persons found on premises not allowed if not named in the warrant
Detention of occupants during warrant search is allowed
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WARRANTLESS SEARCHES AND SEIZURES
ABANDONED PROPERTY
Individual voluntarily abandoning property
forfeits any reasonable expectation of privacy
even if ownership is retained
ADMINISTRATIVE SEARCHES
GENERALLY
Required for NONCONSENSUAL FIRE, HEALTH OR SAFETY INSPECTIONS of residential or private
commercial property
PRIVATE RESIDENCES AND BUSINESSES
Warrant required
Probable cause standard: showing of a general and neutral enforcement plan
No warrant required
contaminated food
Highly regulated industries: liquor, guns, strip mining, automobile junkyards
INVENTORY SEARCHES
Arrestee’s personal belongings for purpose of making an inventory before incarceration
Search of entire vehicle that was impounded
SEARCH OF AIRLINE PASSENGERS
Prior to boarding
Passengers can refuse it by agreeing not to board the aircraft
PUBLIC SCHOOL SEARCHES
Reasonable grounds required but not warrant or probable cause
PAROLEES
Warrantless searches of parolee and his home without reasonable suspicion IF
Condition of parole imposed by state statute agreed by parolee
GOVERNMENT EMPLOYEE’S DESKS AND FILES
Noninvestigatory, work related or
Work related misconduct
DRUG TESTING
Warrantless, no probable cause, no reasonable suspicion WHEN
Justified by SPECIAL NEEDS beyond the general interest of law enforcement (public interest)
AUTOMOBILE SEARCHES
TYPE OF AUTOMOBILE
Includes any mobile vehicles (i.e. motor homes if they are not at a fixed site)
If PROBABLE CAUSE exists that automobile contains contraband of instrumentalities of crime
Searched allowed without warrant
Seize the automobile w/o warrant if probable cause to believe automobile itself is contraband
SCOPE OF SEARCH
Entire automobile
Containers that might contain the object sought by police if probable cause and/or
Only areas where person could hide if probable cause illegal alien is hiding
Passengers belongings
Container only
If probable cause for a particular container search is limited to that container
CONTEMPORANEOUS SEARCH
Not required, automobile may be towed and searched later
BORDER SEARCHES
ROUTINE STOPS AND SEARCHES
warrantless, no probable cause required, no reasonable suspicion required
persons, luggage, personal effects, vehicles
reasonable cause suspecting contraband for
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opening of international mail
ROVING PATROL
May stop a vehicles in the general area of the border and question its occupants
Requires reasonable suspicion
“FACTORY SURVEY” IMMIGRATION ENFORCEMENT to determine citizenship
Not subject to 4th Amendment protection
DETENTION
Reasonable suspicion of traveler smuggling contraband
Reasonable time under the circumstances
SEARCHES IN FOREIGN COUNTRIES
Not subject to 4th Amendment protection
CONSENT SEARCHES
Consent must be voluntary and intelligent
Knowledge of right to withhold consent not required
Any person with apparent equal right to use or occupy may consent
UNLESS co-occupant present and objects
Search valid even if person consenting did not had the right IF police reasonably believed
Scope of search
limited by scope of consent and
extended to all areas a reasonable person under the circumstances would believe it extends
EXIGENT CIRCUMSTANCES
NO GENERAL EMERGENCY EXCEPTION
Check occupational safety violations
Investigate fire after being extinguished
Search a murder scene
GENERAL EMERGENCY EXCEPTION
Contaminated food or drugs
Children in trouble
Burning fires
Whenever police see someone injured or threatened with injury
HOT PURSUIT EXCEPTION
Police officers in pursuit of fleeing felon
Warrantless search inside private dwellings when probable cause for a warrantless arrest in public place
EVANESCENT EXCEPTION
Seizure of evidence likely to disappear before warrant can be obtained
Blood sample containing alcohol
Fingernail scrapings
INVESTIGATORY DETENTION OF PERSONS
STOP AND FRISK
STOP
Police authority to briefly detain a person for investigative purposes
No probable cause for arrest required
Reasonable suspicion supported by articulable facts of criminal activity or
involvement in a committed crime
FRISK
If reasonable suspicion to believe detainee is armed and dangerous
Limited to patdown of outer clothing for concealed instruments of assault or
Reach directly into an area of suspect’s clothing if specific information on hidden weapon
REASONABLE SUSPICION
More than a vague suspicion, less than probable cause
Judged under a totality of circumstances
SOURCE OF SUSPICION
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Same as probable cause
If informant tip – indicia of reliability sufficient to make officer suspicion reasonable
DURATION AND SCOPE
Brief stop, no longer than necessary to conduct a limited investigation to verify
officer’s suspicion
Refusal to identify oneself could trigger an arrest unless exception applies (name
given to officer instead)
DEVELOPMENT OF PROBABLE CAUSE
If probable cause develops during stop the detention becomes an arrest
WHAT CONSTITUTES A STOP?
Mere approach is not detention or arrest
Reasonable belief person is not free to leave constitutes seizure
PROPERTY SEIZURES ON REASONABLE SUSPICION
Brief seizure of items upon reasonable suspicion that they are or contain evidence
AUTOMOBILE STOPS
REASONABLE SUSPICION
EXCEPTION: when special law enforcement needs are involved, road blocks allowed
_________without individualized suspicion; valid when:
Cars stopped on neutral, articulable standard (e.g. every third car)
Designed to serve purpose closely related to automobiles and their
mobility
SEIZURE OF OCCUPANTS
Stops is a seizure of the automobile and any passengers (they will not feel free to
leave without police permission)
INFORMATIONAL ROADBLOCKS
Roadblocks set up for purposes other than to seek incriminating information about
the drivers are unconstitutional
OCCUPANTS ORDERED OUT BY THE POLICE
In the interest of the police officer ‘s safety
Frisk is allowed and search of containers for weapons if detainee is believed
dangerous
PRETEXTUAL STOPS
Allowed if officer has probable cause to believe that traffic law has been violated
DETENTION TO OBTAIN A WARRANT
Police can disallow return inside home for a reasonable time while securing a warrant if
probable cause exists to secure evidence
OCCUPANTS OF PREMISES BEING SEARCHED MAY BE DETAINED
Following a proper warrant to search premises
STATION HOUSE DETENTION
Full probable cause for arrest in order to bring a suspect to the police station for questioning
PLAIN VIEW
REQUIREMENTS FOR SEIZURE OF ITEMS IN PLAIN VIEW
Police legitimately on the premises
Police discovers evidence, fruits or instrumentalities of crime or contraband
Evidence in plain view
Probable cause to believe item is evidence, contraband or instrumentality of crime
Inadvertence not required
SEARCHES AT SEA
Warrantless searches/ no reasonable suspicion of criminal activity limited to
Any vessels on the high seas and US territorial waters subject to US jurisdiction
Routine document and safety inspections
Examining ship’s documents
Visiting the vessel’s public areas
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Examining safety equipment
SEARCH INCIDENT TO VALID ARREST
Arrest must be lawful
Fear for safety of officer not required
Search limited to
the arrested person’s wingspan (areas into which he might reach to obtain weapons or destroy evidence)
Protective sweep allowed
Beyond defendant’s wingspan if belief accomplices may be present
Search must be
contemporaneous with arrest in time and place or
incident to incarceration
WARRANTLESS ARRESTS
ARREST IN PUBLIC PLACE IF:
Felony
officer has reasonable grounds to believe that
a felony has been committed
the person before him committed it
Misdemeanor
committed in officer’s presence (if officer is aware of it through any of his senses)
ELECTRONIC SURVEILLANCE
WARRANT REQUIREMENTS
Probable cause
names of suspected persons whose conversations are to be overheard
Particularity of the conversations to be overheard
Wiretap limited to a short time period (unless extensions obtained upon adequate showing)
Provisions to be made for the termination of the wiretap when desired information has been obtained
Return must be made to the court showing conversations have been intercepted
EXCEPTIONS
Unreliable ear
No 4th Amendment protection for speaker from person who might be an informant
Uninvited ear
No 4th Amendment protection if speaker makes no attempt to keep conversation private
Pen registers
Warrantless but court order needed finding information to be relevant prior to use
Covert entry
For installing equipment authorized by neutral and detached magistrate
IDENTIFICATIONS
6TH AMENDMENT RIGHT TO COUNSEL
Post-charge line-up: witness picks the perpetrator of the crime from a group of persons
Post-charge show-up: one-to-one confrontation between witness and suspect for identification
Role of counsel: observe suggestive aspect of line-up for cross-examination
Photo identification: no right to counsel, due process only
Physical evidence: no right to counsel when handwriting samples, fingerprints
DUE PROCESS
Right to attack identification as denying due process when
Identification is unnecessarily suggestive and
Substantial likelihood of misidentification
REMEDY
Exclusion of identification unless from independent source
Determination at a suppression hearing
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CUSTODIAL INTERROGATIONS
MIRANDA RIGHTS
CUSTODY
INTERROGATION
LIMITATIONS ON AND EXCEPTIONS TO THE MIRANDA RULE
WAIVER OF MIRANDA RIGHTS
ASSERTION OF MIRANDA RIGHTS
INVOLUNTARY CONFESSIONS
THE EXCLUSIONARY RULE
STANDING
GOOD FAITH EXCEPTION
ATTENUATION EXCEPTION
INDEPENDENT SOURCE EXCEPTION
INEVITABLE DISCOVERY EXCEPTION
COLLATERAL USES
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