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Barbri Criminal Procedure - Colin


? Barbri Criminal Procedure Fourth Amendment – Unreasonable Search And Seizure 1. Step 1: Covered by Fourth Amendment? a. No ! No 4th Amend issue b. Yes ! Step 2: Whether there a proper warrant (or improper warrant relied on in good faith) properly executed? i. Yes ! Search is valid under 4th Amend ii. No ! Step 3: Was the search within a warrantless search exception? 1. Yes ! Search is valid under the 4th Amend 2. No ! Search in invalid under the 4th Amend a. Step 4: To what extent is the evidence obtained under such invalid search still admissible. Question 1: Is a search or seizure covered by the 4th Amend? Government ? Publicly paid police conduct o Private citizens acting at the direction of police required ! ? Private security guards, if deputized (e.g. public school security guards) By a Gov ? Public school administrators (e.g. principal, VP) Agent Protected Places or items with reasonable expectation of Unprotected items: Area or privacy: ? Physical characteristics (voice, handwriting) Item ? Person (i.e. body) ? Odor that emanate from your car or ? House (including hotel rooms) luggage (NOT HOME) o Including “curtilage,” the area ? Anything that can be seen in or across open immediately around the house where fields; or while flying in public air space a person has reasonable expectation ? Garbage left at the curb for collection of privacy ? Financial records held by bank ? Paper (e.g. personal correspondence) ? Pen register (records of numbers dialed) ? Affects (personal belongings) Conduct (1) Search or seizure of a constitutionally protected area; or (2) Physical intrusion into a constitutionally protected area to obtain info ? Sense-enhancing device not in the public use to obtain information inside a protected area (e.g. home) Standing The individual subject to the search or seizure must No reasonable expectation of privacy: have standing. ? D is the owner of the property seized, He has standing if he has a “reasonable expectation of but the property was left in public area privacy” to the place searched or the item seized. ! (area with no reasonable expectation This include circumstances like: of privacy) ? He owed or had a right to possession of the place; ? D is the passenger in a car, and the search is regarding the automobile. ? The place searched was his home; o [NY] Passenger can challenge ? He was an overnight guest of the owner of the the possession of weapon. place searched.

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? Question 2: Whether there’s a proper warrant (or improper warrant relied on in good faith)? Requirements Specifics Neutral and detached No bias. (State AG is not unbiased; consider economic incentives) magistrate Warrant supported by [Common Law] Probable cause [NY] Probable cause The magistrate must be able to make a The affidavit of the police must establish: (1) the informant’s reliability and voracity; ? “probable cause”; common sense determination that probable cause exists based on the totality and and of the circumstances (the sufficiency of (2) his basis of knowledge. the informant’s tip rests on corroboration ? If informants didn’t reveal his basis ? particularity by the police of enough of the tipster’s of knowledge, can use the police’s information) (informant’s reliability, observation that confirms sufficient credibility, and basis of knowledge) detail suggestive of, or directly related to, the criminal activity. ? If a false statement material to the finding of probable cause was intentionally/recklessly included by the officer ! invalid Particularity: The search warrant must specify (1) the place to be searched; and (2) the items to be seized. Cure: Evidence obtained by the police in reasonable reliance on a facially valid [NY] Officer’s good faith warrant (even not supported by probable cause or lack particularity) may be Good reliance on a facially used by the prosecution. faith valid warrant Exceptions: reliance of the ? Can not cure magistrate’s bias officer ? If the affidavit so egregiously lacking in probable cause; or the * NOT available in is NOT warrant is so facially deficient in particularity that no reasonable NY a cure. officer would rely. ? If a false statement material to the finding of probable cause was intentionally/recklessly included by the officer. Execution of the (1) Warrant can only be executed by the police warrant (2) No reasonable delay (3) “Knock and announce” presence and purpose, unless knock and announce would be: a. dangerous; b. futile; c. inhibit the investigation Note: violation of the “knock and announce” rule does not make the evidence seized inadmissible. (4) Compliance with the terms of the warrant (i.e. only in places specified by the warrant and reasonably necessary to discovered the specified items). a. Search warrant doesn’t give police the authority to search persons found on the premises who are not named in the warrant. Note: Other evidence not within the warrant is still admissible if “come across” (5) Can detain occupants found within or immediately outside the residence at the time of the search. (6) A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. Page 2 of 8 ?

? Question 3: Exception to a warrant requirement (“ESCAPIST”)
Exigent Circumstances 1. Evanescent Evidence: Police may seize without warrant evidence likely to dissipate or disappear before a warrant can be obtained (e.g. tissue under fingernail, excluding: blood alcohol) 2. Hot pursuit of a fleeing felon: During hot pursuit, police may enter the home of a suspect or a third party to search for a fleeing felon (couple this with “plain view” exception) 3. Emergency aid: Police may enter a residence without a warrant where there’s an objectively reasonable basis for believe that a person inside needs emergency aid to address or prevent injury Contemporaneous in time and place with a constitutional arrest: ? The police may FULL search (e.g. open containers) the person and areas within the [NY] To search arrestee’s immediate control (wingspan) [original purpose is to search for weapons, no container within the longer so in MS] wingspan, the officer o DNA: can swab the arrestee’s cheek for DNA if offense is serious must suspect that the o Cellphone: Cannot check digital data on the cellphone without a warrant arrestee is armed. ? Make a protective sweep of the area if police believe accomplice may be present o Look in area adjoining the place of arrest from which an attack could be immediately launched. (NO NEED for reasonable suspicion) o More remote areas ! additional facts to conclude that an individual is present in that area Automobile search incident to a custodial arrest: [NY] Once the Can search the interior cabin of the car, including closed containers, but not the trunk. arrestee is outside the car, police cannot ? If the suspect is “unsecured” search containers ? Once the suspect is “secured”, the officer may only search warrantless if he reasonably believe that evidence of the offense for which the person was arrested may be found in the inside the vehicle. vehicle. Voluntary consent, by a person with apparent authority, to search the areas which a reasonable officer would believe the scope of consent extend to. ? Voluntary consent: knowledge of a right to withhold consent is not a prerequisite ? Apparent authority: Officer must reasonable believe that the consenting person have actual authority, even if it turns out that the consenting person doesn’t have actual authority. ? Shared occupancy: Any resident can consent to a search of common area. o If one present co-occupant object to the search of common area, objecting party prevails. o If objecting co-occupant removed from the premises for reasons unrelated to his refusal (e.g. lawful arrest), then the police may search on the consent of the other remaining co-occupant. If police have “probable cause” that a vehicle contains contrabands or evidence of crime, police can search the ENTIRE vehicle without warrant. [Justification is that the vehicle is ready to move, so the evidentiary standard is the same for a warrant (probable cause), but save the time for apply for a warrant.] ? The entire vehicle can be searched, provided that the area can reasonably contain the item for which there was probable cause to search for. ? Once there’s probable cause, may tow vehicle back to station and search later. The police may make a warrantless seizure for an item in plain view when they: (1) are legitimately on the premises and access to the item; and (2) the criminality of the item must be immediately apparent. Back at the police station, the police can make an inventory search of the arrestee’s belongings, or an impounded car. Inventory search must (1) comply with regulation; (2) such regulation must be reasonable in scope; and (3) the search is conduct in good faith (motivated solely by the need to safeguard the owner’s possessions and to ensure officer safety. “Non-law enforcement primary purpose” test: If the primary purpose of the search is to gather criminal evidence for general use by law enforcement, then NO “special needs” exception to warrantless search. Special needs: ? Drug testing (railroad employees, following an impact accident; custom agent responsible for drug interdiction; public school children who participate in any extracurricular activities) ? Parolee (search of parolee and his home can be a condition for parole) ? School searches: searches of the person and effects of public schoolchildren to enforce school rules. Must be reasonable at inception + not excessively intrusive (consider the age, sex, and the violation) ? Boarder searches: routine searches of persons and effects (national security consideration)

Search Incident to Constitutional Arrest (At station, see inventory search)

Consent

Automobile exception

Plain View Inventory search Special needs

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Terry “stop and frisk” Terry “Stop”: Reasonable suspicion of criminal activity ! Objectively specific and articulable (coherent) facts ? Stop the person and ask to state his name Traffic stop: ? Both the driver and the passenger seized, so have standing ? Police can order the driver and passenger out of the car ? Dog-sniff of car permissible at traffic stops if sniffing doesn’t unreasonably prolong the stop Terry “frisk”: Reasonable belief that the suspect has a weapon Car frisk: Reasonable belief that the suspect has a ? A patdown of outer clothing for weapon weapon ? What can be seized? ? May search passenger o Anything the officer reasonably believes to be a weapon cabin, limited to where o Contraband, based on its “plain feel” without manipulation. a weapon might hold " [NY] Can only seize items reasonably appears to be weapon. Evidentiary standard of Terry stop (“reasonable suspicion of criminal activity”) and Terry frisk (“reasonable belief that suspect is armed and dangerous”) both requires “specific and articulable facts.” ? “Specific and articulable facts” can be satisfied by informant’s tip, if the tip contains sufficient “predictive” information, corroborated by the police, to establish the informant’s reliability.

Vehicle searches summary 1. Stop: a. Terry stop ! Reasonable suspicion b. Special needs ! enforcing traffic law (The police may stop automobiles for investigatory purposes even without reasonable suspicion if they make the stops on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles.) 2. Searches a. Sniff OK b. Terry frisk ! reasonable suspicion of a weapon (passenger cabin) c. Automobile exception ! probable cause, but without a warrant (entire vehicle) d. Automobile search incident to an arrest ! unsecured v. secured (reasonable belief that evidence of offense can be found) (interior cabin) e. Inventory search of impounded car (comply with reg, reg reasonable, good faith) 3. Seize a. Plain view

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? Question 4: To what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant? [Exclusion Rule] Exclusion Rule Limitation Exclusion Evidence that is obtained in violation of a federal statute or 1. Available for the impeachment rule constitutional provision is inadmissible in court against the of D individual whose rights were violated. 2. Inapplicable to grand juries, civil proceedings, violations of Fruit of “Derivative evidence” obtained by exploiting prior state law, internal agency rules, the unconstitutional obtained evidence is also inadmissible. and parole revocation poisonous proceedings tree Severing the causal link between the original criminality and 3. Police’s good faith reliance on the later evidence: law, defective search warrant, ? Independent source: evidence obtained from a source or clerical error. independent of the original illegality 4. Exclusion not available for ? Inevitable discovery: the prosecution can show that the knock and announce violations police would have discovered the evidence even without the illegality ? Attenuation: the passage of time and intervening event remove the taint of the original illegality and restore the defendant’s free will * Physical fruits derived from a voluntary confession in violation of Miranda (not including purposefully not give Miranda warning) is admissible. (see below) * Harmless error test: If evidence obtained illegally is admitted at trial, the harmless error test applies – the conviction needn’t be overturned if there is other overwhelming evidence of guilt.

Additional Topic: Wiretapping and eavesdropping 1. Wiretapping constitutes a search under 4th Amendment. A valid warrant have probable cause and particularity (name; nature of conversation; valid time period ([NY] expires after 30 days). a. Wiretap terminated when the desired information has been obtained. The return must be made to the court, showing what conversations have been intercepted. 2. Unreliable ear doctrine: A person assumes the risk that the person to whom he is talking is an informer wired for sound or taping the conversation. ! No 4th Amend claim. Additional Topic: ARREST 1. Arrest occurs when the police take a person into custody against her will for prosecution or interrogation. (De facto arrest when the police compel someone to come to the police station for questioning or fingerprinting) 2. Standard: Probable cause (knowledge of facts sufficient for a reasonable person to believe that the suspect has committed or is committing a crime). 3. Warrant requirement: a. No warrant needed for arrest in public b. Arrest warrant for arresting in suspect’s home c. Arrest warrant + search warrant for arresting in a third party’s home d. Discretion to use handcuffs Page 5 of 8 ?

? Confession Rule 14th Amend: Due Process 6th Amend: Right to Counsel Specifics An involuntary self-incriminating statement is inadmissible. A statement is involuntary only if there’s some official compulsion (police coercion that overbears the suspects will). ? [NY] If an interrogation last TOO LONG, it will be questionable as to voluntariness. Harmless error test: If an involuntary confession is admitted into evidence, the harmless error test applies – the conviction needn’t be overturned if there is other overwhelming evidence of guilt. Prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless he has waived his right to counsel. ? “Deliberately eliciting”: If D voluntarily opens up and confess, no need for counsel presence ? “After D has been (formally) charged”: applicable to certain “critical” stages, including (1) postindictment interrogation, (2) preliminary hearings to determine probable cause to prosecute, (3) arraignment, (4) guilty plea and sentencing, (5) post-charge lineups. o Offense Specific: After the suspect has been charged with A crime, any deliberate elicitation cannot be make without counsel presence regarding A crime, but doesn’t violate 6th Amend if regarding B crime. ! Miranda analysis ? Waive of 6th Amend right to counsel: Waiver must be “knowing and voluntary.” Counsel presence while waiver is NOT required. ? The Harmless Error test applies, UNLESS the failure to provide counsel at trial. ! Automatic reversal Indelible right to counsel provides greater protection than the 6th Amend. ? When apply: After formal charging + Whenever there is significant judicial activity + custody & “activity overwhelming to the layperson” & D requested counsel ? Not offense specific: If D is taken into custody for questioning on a charge and the police are aware that he is represented by counsel on that charge, the police may not question him about that charge or any other matter without counsel presence. ? Waiver: Can only be waive in counsel’s presence (if knew or could have known D is represented by counsel). o If D released and later arrested on unrelated charges, waiver can be made without the presence of counsel from prior charges. Applies in “custodial interrogation”, with public safety exception (NOT offense specific) ? Custodial: 2 part test o A reasonable person would not have felt that she was at liberty to end the interrogation and leave; and o The environment presents the same inherently coercive pressures as the station house questioning at issue in Miranda. o Note: The custodial inquiry is objective, but when the suspect is a juvenile, should take into account the suspect’s age where relevant if the police should be aware of the suspect’s age. ? Interrogation: Police conduct that they should know would likely elicit a response from the suspect. ? Note: Thus, Miranda doesn’t apply to circumstances where detainee doesn’t know he’s being questioned by a governmental agent; neither does it applies to spontaneous statements. ? Public safety exception: If custodial interrogation is prompted by an immediate concern for public safety, Miranda warnings are unnecessary and any incriminating statements are Page 6 of 8 ?

[NY] Indelible Right to Counsel

5th Amend: SelfIncriminat ion Clause ! Miranda

? admissible. Content of the warning: ? Prior to interrogation, must reasonably conveys: “You have the right to remain silent. Anything you say can be used against you in court. You have the right to an attorney. If you cannot afford one, one will be appointed to you if you so desires.” Exercise the right: ? Do nothing: Neither waive, nor invoking the right to silent ! may continue questioning ? Waiver: Must be “knowing (understand the nature of the rights and consequence for abandoning them) and voluntary” ! Can be express or implied o [NY] Waiver invalid if police uses deception or concealment to keep a parent away from a child under interrogation. o An implied waiver of the right to remain silent: If a suspect has received and understood his Miranda rights, he waives his right to remain silent by making an uncoerced statement to the police. o Burden of proof is on the prosecution to prove valid waiver by a preponderance of evidence. ? Invoking the right to Remain Silent: Express (Explicit, unambiguous, and unequivocal) o Once invoked, police must “scrupulously honor” this request by not badgering the detainee. If the police wish to resume questioning, must (1) waiting a significant period of time; and (2) obtain a valid Miranda waiver of the right to silence. ? Invoking the right to counsel: (Unambiguous and specific) o Once invoked, police must cease questioning until counsel is present, unless (1) the suspect waive the right to counsel (e.g. reinitiate questioning); or (2) the request for counsel expires (after 14 days after a suspect is released from custody) o All interrogations must be in the presence of counsel Evidentiary exclusion under Miranda: ? Incriminating statements obtained in violation of Miranda may still be used to impeach. ? If Miranda is violated (but statement is VOLUNTARY, thus not violating 14th Amend; and the failure to give warning must not be purposeful), the physical fruits derived from the incriminating statement is still admissible. ? Second shot: If the first statement obtained violates Miranda (but the statement is VOLUNTARY), subsequent incriminating statements made after obtaining a Miranda waiver are admissible. Harmless error test: If evidences obtained illegally is admitted at trial, the harmless error test applies – the conviction needn’t be overturned if there is other overwhelming evidence of guilt. Additional Topic: 5th Amend privilege against compelled self-incrimination 1. Anyone in any proceeding (even civil) testifying under oath can asset 5th amend right. a. [NY] Cannot assert in a grand jury proceeding ! automatic transactional immunity 2. 5th Amend disallows negative prosecutor comment on: (1) D’s decision not to testify at trial; and (2) D’s silence AFTER receiving Miranda warning. a. Prosecutors may negatively comment on the silence before the police read him the Miranda rights. th 3. 5 Amend applies to the words out of D’s mouth, and dos not apply to: (1) the state’s use of our bodies (e.g. blood test); and (2) the content of documents whose production was mandated by subpoena. 4. Eliminate 5th Amend privilege: a. Grant of immunity: prosecutor can grant “use and derivative use” immunity, which bars the use of D’s testimony or anything derived from it to convict D. Page 7 of 8 ?

? i. [NY] A broader “transactional” immunity, which shields witnesses from prosecution for any transaction they testified about in their immunized testimony. 1. Witness in grand jury proceedings automatically receive transactional immunity for their testimony. 2. Can still be convicted based on the evidence obtained prior to the grant of immunity. b. By taking the stand, D waives the ability to “take the Fifth” as to anything properly within the scope of the cross-examination. c. Statute of limitation: The privilege is unavailable if the S/L has run on the underlying crime.

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