Criminal Procedure

Limitations of and Exceptions to the Miranda Rule

(1) A Miranda violation does not result in the exclusion of other evidence derived from the inadmissible statement, because a Miranda violation does not trigger the fruit of the poisonous tree doctrine. 2) Public Safety. When the primary purpose of the police questioning is to protect themselves or the public from an immanent danger of serious harm the suspects answers are admissible even without Miranda warnings. (3) Statements obtained from the defendant in violation of Miranda rights are admissible to impeach the defendant's testimony at trial. A defendant cannot hide behind a Miranda violation to lie under oath

The Terry Search (Frisk)

(1) A Terry Frisk is a cursory search for weapons or some other instrumentality that creates an imminent danger to the officer of others in close proximity. (2) A Terry Frisk is justified only by: reasonable suspicion the suspect is armed and dangerous, it is not automatically reasonable just because the police conducted a Terry Stop. Can have authority to do a terry stop without the authority to do a terry frisk.

Exigent Circumstances

(1) Closely related to Hot Pursuit is Exigent Circumstances: Police may search without a warrant when the situation indicates waiting to obtain a warrant will result in: (a) Imminent destruction of evidence (b) Immanent escape of the suspect (c) Immanent risk to police or others in the area (common after a 911 domestic dispute call)

The Sixth Amendment right to counsel is offense-specific.

(1) It only shields the defendant from questioning on the offense he has been charged with. (2) Police may continue to question: the defendant on other offenses even those related to the charged offense without implicating the sixth amendment.

Special Rules During Interrogations

(1) Miranda warnings need not be repeated: because of a short break in interrogation or another officer begins questioning. If there is a significant break (e.g., overnight) then they need a new waiver. (2) If a suspect makes an unequivocal request for an attorney: (not "do you think I need an attorney?") or that she wishes to remain silent, all interrogations must cease immediately. (3) These requests can be made: at any point during the interrogation.

Automobile Exception to the Warrant Requirement- Seizure and scope

(1) Once police have probable cause to search the moving or temporarily stopped vehicle, they may: seize the vehicle, bring it to the impound lot, and search it later even if there is sufficient time to obtain a warrant between the seizure and the search. (2) The permissible scope of the search is dictated by the probable cause, which prohibits police from automatically searching the entire vehicle. (not like SITLA) EXAMPLE: Police have probable cause to believe suspect is transporting a stolen 50" flat panel television in the trunk of his car. Police may stop the car and search for the television without a warrant. However, they may only search in parts of the car where suspect could store the television.

Searches Incident to a Lawful Arrest (SITLA): Contemporaneous and Automatic

(2) A search incident to a lawful arrest must be contemporaneous with the arrest and in rare cases may even precede it slightly so long as the arrest was inevitable. (3) Although the rationale for the SITLA is protection of the arresting police officers and preservation of evidence, there is no requirement to individually justify each SITLA, it is automatic. (4) SITLA is: AUTOMATIC EXAMPLE: A search of a defendant's pack of cigarettes that contained heroin was held lawful as incident to his arrest for a traffic violation. EXAMPLE: A driver was ordered out of his vehicle and a full search was held lawful, even though the arrest was only for a traffic violation.

Establishing Probable Cause Through Informants (part 2)

(2) An informant generally need not reveal his or her identity. However, if the informant does identify himself, it bolsters the reliability of the tip because it subjects the informant to possible penalty for providing false information. Goes to veracity prong. (3) In order to establish probable cause, the totality of these circumstances (factors) must indicate that the informant provided: predictive information that only a person with inside access to the suspect would know. For a tip to establish probable cause, police corroboration must establish that the tipster provided predictive insider information. A prediction that any neighbor or "enemy" could make to the police (like the car someone drives, the route they take to work, or the time they normally leave every day) does not indicate insider access, and therefore normally will not establish probable cause.

Consent part 2

(3) In certain situations, valid consent is implied by virtue of engaging in specific behavior, such as traveling by airplane or engaging in a regulated business. (4) Normally, the scope of consent is implied by the request and/or the item the officer indicates he is looking for. EXAMPLE: Aid a fellon, eager to show that she did not have anything to hide and to get the police off of her back, invites them to check the car expecting the police to only look in the passenger compartment. The police were justified in arresting her when they found heroin around the transmission because she gave the police permission to check the car and never limited the scope of the search. (5) An individual has an absolute right to refuse to grant consent, to withdraw consent once granted, or to limit the scope of consent. However, an individual must: clearly express any limitations on the scope of consent prior to the officer obtaining the evidence.

The Terry Search (Frisk)- The Exclusive Jusitification

(3) The exclusive justification for a Terry Frisk is: protective, not to search for evidence. Therefore if there is no reasonable suspicion that the suspect is armed and dangerous you cannot do a terry frisk. (4) As a result, the scope of a Terry frisk is strictly limited to a cursory inspection of the suspect's outer clothing to confirm or deny that the suspect is armed. (a) If the frisk/pat down results in the officer feeling something he knows immediately is a weapon or any other contraband: the officer may seize the weapon or contraband pursuant to the plain touch variant of the plain view doctrine. (b) However, because the exclusive purpose of a Terry frisk is to protect from danger caused by weapons and not to search for evidence, if the officer feels something he knows is not a weapon but merely suspects is contraband and has to manipulate the item to establish probable cause to seize: the manipulation exceeds the scope of the terry frisk and the seizure of contraband is unreasonable. (c) Why? Because the incriminating nature was not immediately evident

Special Needs Search continued

(4) Police may seize any contraband that comes into plain view while searching within the scope of the special needs inspection: Even if the contraband is unrelated to the public safety concern. (5) Police officers may not: randomly stop vehicles to check license and registration (6) Customs officials may stop vehicles at permanent checkpoints located at or near the border with: no suspicion or cause as an incident of national sovereignty. Because a special needs stop is a seizure, if it is unreasonable (not based on a valid special needs justification), any evidence it leads to will be tainted by the stop. However, if it is reasonable, any subsequent search or seizure will be unaffected by the stop, even if the evidence is unrelated to the special need.

Terry Frisk: Expanding the Protective Rationale

(5) The protective rationale for a Terry Frisk has been extended to: (a) A brief cursory look in areas within an automobile where police have reasonable suspicion: a person stopped will have immediate access to a weapon after getting back in the car. (b) A cursory sweep of the interior of a home when police enter the home to serve a warrant based on reasonable suspicion that: others may be present in the home and capable of an ambush.

Special Rules During Interrogations: effect of invocation on police ability to "re-initiate" questioning (invoking the miranda right to counsel)

(b) Invoking the Miranda right to counsel. If a suspect invokes the Miranda right to counsel, questioning must cease immediately, and may not be re-initiated unless: 1) An attorney is present during the interrogation, or 2) The defendant reinitiates the contact with police and executes a new Miranda waiver. 3) Two weeks after the suspect is returned to his normal environment police may re-initiate questioning, but must first obtain a fresh Miranda waiver (c) A Miranda invocation of either right is not offense specific. That means that these "re-initiation" rules apply: to any offense the police seek to question about even if it is a different officer from a different jurisdiction for a different crime.

Consent

1) Consent is an exception to both the warrant and probable cause requirements. If an individual waives her right to privacy by consenting to a search: the search is reasonable even if the search was asked for by the officer solely based on a hunch. (a) Any evidence observed in plain view within the proper scope of a consent search: may be seized pursuant to the plain view doctrine (2) Consent must be: knowing and voluntary. Voluntariness is assessed by the totality of the circumstances. (a) Consent is invalid if it is obtained by asserting a fake warrant, fraudulently, under duress, or pursuant to an unlawful police threat (a threat to do something that the officer has no authority to do). (b) However, the police are not required to inform a suspect of the right to decline to give consent.

Automobile Exception to the Warrant Requirement

1) Police may search an automobile or any other self-propelled conveyance (motor home, boat, or airplane) without a warrant: so long as they have probable cause. (if it has an engine and can move and an area where it can move) (a) This exception is justified by: the inherent mobility of the conveyance and the reduced expectation of privacy resulting from pervasive government regulation. (b) The warrant exception applies to: all containers within the vehicle (c) This means that if police have probable cause to search inside a closed container: once that container is placed in the vehicle or found in the vehicle it may be opened and searched without a warrant.

Right to Jury Trial- Makeup of the Jury:The Petit (actual trial) Jury

1) There is no requirement to provide a fair cross section of the community on the actual trial jury. (2) However, the use of peremptory challenges to exclude prospective jurors based on minority race or gender: violates equal protection. (a) Therefore, a party making a peremptory challenge of a prospective minority juror will be required to offer a "race or gender neutral" basis for the challenge, and if that basis is unpersuasive: the peremptory challenge will be denied.

Pre-trail procedures: Plea Bargaining

1. A plea of guilty is "the strongest form of proof known to the law." A defendant may be convicted on his plea only. a. The court must determine that the plea is voluntary and intelligent. To be intelligent, the accused must be informed of the general nature of the offense he is pleading guilty to. b. Because a plea of guilty waives the right to trial by jury, the right to confrontation and compulsory process, the privilege against self-incrimination, and the presumption of innocence, the court must determine that the waiver of these fundamental constitutional trial rights is intelligent and voluntary [McCarthy v. United States, 394 U.S. 459 (1969)]. 2. A defendant may plead guilty without admitting guilt, called an "Alford" plea. In such cases, other evidence (like police reports) must be admitted to the record to support the court's finding of guilt. Cant be found guilty on plea alone

Pre-Trail Rights: The Right to a Speedy Trial

1. A right to a speedy trial is guaranteed by: Sixth amendment 2. While most state statutes also include a speedy trial right: he only remedy for a violation of the constitutional speedy trial right is dismissal with prejudice 3. The speedy trial clock begins running: once a defendant is accused by formal charging or is arrested and held to answer for a crime a. Pre-arrest/pre-charge delays are not considered in speedy trial analysis and there is no requirement to charge a defendant immediately after report of a crime, although if pre-trial delays are totally unjustified and result in prejudice they may violate due process. (Very rare).

The 4th Amendment- Government Action

1. The Fourth Amendment applies only to: government not private conduct a. Silver Platter Doctrine: When a private party acting on his own acquires evidence that the government later seeks to introduce in a criminal prosecution, it does not trigger the fourth amendment. So evidence is admissible if a private citizen acquires it illegally and gives it to police. b. However, when a private party acts at the direction of a government agent or pursuant to an official policy: the search and seizer is subject to the 4th amendment.

Confrontation Clause

1. The Sixth Amendment provides defendant with: the right to confront witnesses and evidence against him. 2. The right to confrontation is triggered only by: testimonial evidence. Those are statements made in a context where the witness would expect the statement to be used in a criminal trial. a. If the witness is telling the police or a 911 operator what is happening in order to help them respond to an ongoing emergency: It is not testimonial in nature. b. If the witness is telling the police or a 911 operator what has happened as part of their investigation: it is testimonial in nature.

Guarantees of Fair Trial: The Right to Counsel at Trial

1. The right to counsel attaches to all critical stages of the proceedings that affect the defendant's right to a fair trial (trial, preliminary hearing, corporeal identifications, police questioning). 2. Absent waiver, a defendant may not be "imprisoned for any offense, whether classified as petty, misdemeanor, or felony" unless: he was represented by counsel. a. This means the government must provide counsel to indigent defendants whose cases meet this definition. b. Note that the trigger for providing free counsel is: actual imprisonment not potential imprisonment.

Approach to a Criminal Procedure Question

1. Was there government action? 2. If so, did it trigger a constitutional right (for example, was it a search or seizure, or was the suspect subjected to custodial interrogation)? 3. If so, did the government violate the constitutional right (for example, was the search or seizure unreasonable, or did the police violate the Miranda rule)? 4. If so, is YOUR defendant entitled to the remedy of exclusion? Just because government violates the constitution does not mean my defendant will have the ability to complaint about it.

Exigent circumstances continued

1.) Exigency justifies: a warrantless crime scene search to seek other victims or a reaming killer or violent felon in the crime scene. 2.) Although, this exception does not authorize: a general search at the crime scene unrelated to this exigency purpose.

Other Limitations to the Exclusionary Rule: Good Faith

2) Good Faith Exception: Because the exclusive objective of the exclusionary rule is to deter police misconduct, when police act in good faith reliance on a warrant that is subsequently ruled invalid, the evidence seized will not be subject to exclusion. (a) Limitations to the good-faith exception: the good faith exception is inapplicable where a reasonable officer would know not to rely on the warrant. (b) This "exception to the exception" will apply: 1) Where the police: Lie or mislead the magistrate to get the warrant. A lie by one officer is imputed to all officers in the chain 2) Where the warrant is: so facially defective that no reasonable officer would rely on it. 3) Where a reasonable officer would know that the magistrate is not neutral and detached. (e.g., the magistrate is involved in the investigation) (c) The Supreme Court has recently extended the good faith exception to an arrest in reliance on a warrant that should have been purged from the system by the police. Rule: Harring v. U.S. No exclusion of the evidence of the evidence even when there is police error so long as it is isolated negligence attenuated from the point of arrest. Look for this on test.

Knowingly held open to public no REP

A defendant does not have a reasonable expectation of privacy in the following items because they have all been knowingly exposed to the public: (1) Hand writing exemplars (2) Voice exemplars (3) Bank Records (4) Pen registers (5) Information on an email sent through an ISP (but the contents of the email are within a REP); (6) Conversations the suspect believes are private the police record with the consent of the other party. "False friend doctrine" When a person exposes something to another person, they assume the risk that the other person will expose it to the police, and if this happens it is not a search. (7) Open fields: Unoccupied areas beyond the curtlidge of home even if the police trespass onto the open field. (8) Naked eye observation of private property by air so long as police complies with flight limitations. (9) Arial photography of large fenced in areas around an industrial complex even if using high powered scopes (10) Discarded property, such as commingled garbage and abandoned rental premises.

Search

A search is a government intrusion into a reasonable expectation of privacy (REP). "Looking" for something is not always a search. A search is defined by where the police go or look. Only when police "look" into a REP or go to an area within a REP will it qualify as a search for purposes of the Fourth Amendment.

Special Needs Search Requirment

A special needs search or seizure must be: (a) Based on a fixed formula that: deprives individual officers of the discretion to select the suspects (b) Narrowly tailored in scope: to address the specific threat EXAMPLE: In response to heightened intelligence reports of possible terrorist subway bombings, police may establish checkpoints to randomly search bags of subway passenger. Police may only look in bags capable of concealing a bomb. (c) Be conducted in a location and a manner that minimizes citizen anxiety.

Statements and Confessions:Actual Coercion: the Due Process Voluntariness Standard

A statement obtained by police, as the result of actual coercion that overbears the free will of the suspect is inadmissible: for any purpose. a. Voluntariness standard is assessed based on the: totality of the circumstances. b. Factors of coercion include the defendant's: (1) Age, health, education, intelligence, gender, cultural background; (2) Location, duration, and physical conditions of the interrogation (3) Number and demeanor of police officers, suspect's experience with the criminal justice system; (4) Deception and trickery. (Does not automatically make it coercive)

The Miranda Rule (exam tip)

A valid Miranda waiver restores confidence that a suspect's statements made during custodial interrogation are in fact the product of free well and therefore not the product of inherent coercion because it "neutralizes" the corrosive effect of custodial interrogation.

The Massiah Rule- Initiation of formal adversarial process: Continued

A violation of the Sixth Amendment does not require: the defendant know that he is being questioned by a government agent, therefore surreptitious questioning or by a snitch on the government payroll violates the 6th amendment rule. Government agents are permitted to approach the defendant to elicit a waiver of his Sixth Amendment assistance of counsel during questioning, and the waiver is effective: so long as the defendant knew the right he was giving up and as long as there is no coercion.

Searches Incident to a Lawful Arrest (SITLA):

A warrantless search of the arrestee and: the area within his immediate control (wingspan) is automatically permitted following an arrest. (1) SITLA is triggered by a lawful arrest. (a) A subjective ulterior motive by the arresting officer is irrelevant. So long as: the law authorized the arrest for the offense. (b) There is no authority to conduct a search incident to citation, even if the offense is one that permitted the officer to arrest the suspect. (i.e., they must actually arrest in order to do the SITLA)

Terry Stop Continued

A. A police officer is justified in requesting a suspect's name as identification during a Terry stop as long as the request has an immediate relation to the purpose of the stop. B. The permissible scope of a Terry Stop is the time required: acting in due diligence to confirm or deny the suspicion. Longer then that they have exceeded the scope of the stop. C. The fact that an officer may have also had some improper subjective basis for the stop will not result in a finding that the stop was illegal: so long as the stop was supported by an objectively reasonable belief that the suspect was engaged in or about to engage in criminal activity.

Administrative Searches:

Administrative searches are an exception to the normal probable cause and warrant requirement because: they re conducted for noncriminal purposes and therefore justified in having a lower standard of cause.

Administrative Searches-Agency Inspections

Agency Inspections (a) An administrative search is really best understood as an "agency compliance inspection" whereby compliance with administrative regulations or health and safety codes is verified. (b) Because the primary purpose of these searches/inspections is not discovery of evidence of crime: their justified based on reasonable suspicion and not on probable cause. (c) Normally, agency inspectors will also be required to obtain an administrative warrant to search private homes or businesses, with some exceptions:

Administrative Searches-Agency Inspections: Exceptions (airport screenings)

Airport Screenings. To protect airline passengers from weapons and explosives, warrantless administrative searches are permitted at airports. A passenger may avoid being searched by declining to board the plane.

Exclusionary Rule: Exam tip

Always ask if there is a "but for" connection between the evidence the prosecution seeks to admit and a violation of the defendant's constitutional rights. If so, the evidence falls within the fruit of the poisonous tree doctrine.

Arrest- Warrant Required

An arrest warrant is required: Before police can arrest an individual in his own home, unless you have consent or exigent circumstances. Exigent circumstances justifying a warrantless entry into the suspect's home to execute an arrest requires the following: (1) An arrest attempt outside the home is: thwarted because the suspect retreats inside the home (2) There is: insufficient time to secure warrant because delay would allow the suspect to avoid arrest or destroy evidence (3) The arresting officer is: hot pursuit and has probable cause to execute a valid arrest (4) The officer did not: deliberately create the exigency just to avoid getting a warrant. EXAMPLE: While on a routine patrol, Officer Jones observes an individual he who matches the description of a suspect who just robbed a cab driver at gunpoint. As Jones approaches the suspect, the suspect bolts, ignoring Jones' verbal demands to stop running. The suspect runs into his house and slams the door behind him. Jones may enter the home to arrest the suspect without obtaining a warrant.

Applying the Fourth Amendment to Seizures- Arrests: Probable Cause and No warrant required

Arrests a. Probable cause is: always required for arrest. b. Probable cause to arrest may be obtained by a variety of methods, including: Reliance on an informant's tip that satisfies the totality of the circumstances test of Illinois v. Gates. Remember, reasonable suspicion for a Terry Stop can "blossom" into probable cause. If during the investigatory stop the police officer obtains additional information rising to the level of probable cause, the Terry Stop may be escalated to an arrest and the suspect may be searched incident to that arrest. c. There is no requirement to obtain a warrant to arrest a suspect in public, so long as: police have probable cause for the arrest A suspect is like any other piece of evidence the police seize. If the suspect is in public and police need not intrude upon a REP to arrest the suspect, then like evidence in plain view police need not obtain a warrant to arrest (seize) the suspect.

Exceptions to Fruit of the Poisonous Tree exclusion: Attenuation

Attenuation: Evidence with a "but for" link to a poison tree may be so distant from the initial illegality that: the taint of the poison is purged from the fruit and therefore admissible. (a) This exception turns on a combination of the flagrancy of the constitutional violation (the more flagrant, the more potent the poison) and the distance between the violation and the evidence. (b) This exception will often be asserted when police obtain a voluntary confession following an unlawful arrest. 1) If the confession follows immediately after the arrest: the exception will rarely apply. 2) Factors supporting attenuation include: a) Different location b) Passage of time c) Different officers d) A valid Miranda waiver

Pre-trail procedures: Bail Hearing

Bail Hearing: The defendant is entitled to: individualized hearing to determine if bail should be granted or denied. 1. The purpose of bail is to secure the presence of the accused at trial. 2. There is no constitutional right to bail. If bail will be ineffective to secure the accused at trial, it may be denied. 3. If bail is appropriate, it may not be excessive. 6th amendment.

The Miranda Rule

Because subjecting a suspect to custodial interrogation produces inherent coercion, the prosecution may not use statements obtained as the result of questioning while in custody in the case-in-chief unless: Police neutralize this special inherent coercion by complying with the Miranda requirement.

Terry Stop:

Between a routine police encounter and arrest is a Terry Stop. (1) A Terry Stop is a "brief investigatory seizure" because police require the suspect to interact with them, therefore triggering the Fourth Amendment. (2) The difference between a Terry Stop and an Arrest is duration and purpose. (3) A Terry Stop is not the initiation of criminal action, it is for the sole purpose of investigating a "reasonable suspicion" crime is about to, or has recently occurred. (4) The permissible duration of a Terry Stop is time necessary to confirm or deny the suspicion. (a) If confirmed, the suspicion blossoms into probable cause, which justifies arrest. (b) If denied, the seizure must terminate.

Administrative Searches-Agency Inspections: Exceptions (boarder searches)

Border Searches a) Customs and immigration officers: may conduct routine searches of people and property crossing the boards in the United States with no individualized suspicion or cause. A border search may occur at any border crossing, to include international airport ports of entry, and fixed border in-spection stations established several miles inside the United States on highways. i) Vehicles at a border crossing: may be stopped without cause for questioning ii) Reasonable Suspicion is required for an unusually intrusive search, such as a body cavity search or a search that results in destruction of the property. iii) Where a suspect refuses to submit to an X-ray by customs agents at the border, and reasonable justification for detention initially exists, the detention may continue until a bowel movement occurs.

Actual Coercion: Forms of coercion

Coercion can take the form of physical abuse, psychological pressure, or threats of future harm for failing to answer questions. EXAMPLE: Suspect is an inmate in prison, and is befriended by a fellow inmate who tells him he is connected to the Mafia. The new "friend" tells him he will ensure he is protected from other prisoners who know he is suspected of molesting and murdering a young child. But in exchange, the "friend" says, "you first have to tell me if you did it." Suspect confesses to the crime. The inmate "friend" is in fact a snitch on the FBI payroll that passes the information to the FBI. This confession is involuntary because it was coerced by threat of future harm if the suspect did not provide the confession.

Satisfying Confrontation clause through "adversarial testing"

Confrontation is satisfied by subjecting the witness to "adversarial testing," which means: the witnesses' testimony I provide under oath and subject to cross-examination. a. Where the witness is called to testify at trial, this right is satisfied, even if the defendant does not cross-examine the witness. b. Where the witnesses prior "testimonial" statements are offered as hearsay, it will violate the right to confrontation unless the defendant had a prior opportunity to subject the hearsay to adversarial testing, for example at a prior preliminary hearing.

Double Jeopardy (definition)

Definition: The double jeopardy clause is intended to prevent undue harassment and expense by eliminating the risk of: a defendant being placed in jeopardy more than one time for the same offense. 1. The Fifth Amendment provision "... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb" applies to the states through the Due Process Clause of the Fourteenth Amendment.

Exclusionary Rule: Standing Example

EXAMPLE: A criminal defendant does not have standing to dispute the unreasonable search of a friend's backpack that leads to the seizure of evidence that incriminates him, even if he gave it to his friend to carry. This is because the unreasonable search was not directed against the defendant's constitutional protected REP, and once the police were inside the bag the evidence was seized lawfully pursuant to the plain view doctrine.

Double Jeopardy-Same Offense (example)

EXAMPLE: D is charged with three counts of violating a federal narcotics statute. The indictment alleges that during one transaction, defendant sold oxycontin to two purchasers. Count I alleges sale to purchaser 1 without a prescription in violation of Section I of the statute. Count II alleges sale without a prescription to purchaser 2 without a prescription. Count III alleges sale to purchaser 2 without a tax stamp for the same sale as Count II. Each of these three counts is a "separate" offense for purposes of double jeopardy. Each purchaser is a "separate unit of prosecution" even though the sales occurred during the same transaction. The two counts arising from the sale of the same oxycontin to purchaser 2 are separate offenses because each requires proof of a different factual element in order to convict.

Exceptions to Fruit of the Poisonous Tree exclusion: Inevitable discovery (example)

EXAMPLE: Defendant leads Detective Leaming to the body of his murder victim after Leaming elicits a confession from the defendant in violation of the defendant's Sixth Amendment right to counsel. This violation is a poison tree, and "but for" this constitutional violation, Leaming would not have found the body. However, because at the time Leaming finds the body other police were systematically searching in the same area, the Court concluded they would have "inevitably" found the body in virtually the same condition independent of the constitutional violation. Therefore the body was admissible.

Double Jeopardy-Separate Sovereignties Doctrine (example)

EXAMPLE: Major Nidal Hassan is tried by court-martial (a federal military court) at Fort Hood, Texas for the murder for 13 victims during his November 5, 2010 rampage at Fort Hood. He is convicted and sentenced to life in prison. Assume the area where he committed the killings is joint federal and state jurisdiction. The state of Texas now wants to prosecute him in order to seek the death penalty, and so does the U.S. Attorney for that district. Texas may prosecute him for the same criminal conduct because Texas is a separate sovereign; if the U.S. Attorney indicts him, the indictment will be dismissed on a double jeopardy motion.

Fruit of the Poisonous Tree- Suppression of Confession (examples)

EXAMPLE: Police have probable cause to arrest Joe, and enter his house without a warrant to take him into custody. Two hours later at the police station, a detective who was not at the scene of arrest obtains a Miranda waiver from Joe. Joe confesses to the crime during interrogation. This Miranda waiver will likely be sufficient to prove the taint of the warrantless arrest was dissipated or purged. Although police did not have a warrant, they did have probable cause and did not elicit the confession immediately after the arrest. EXAMPLE: Police have a hunch Joe is a terrorist planning a suicide bombing at a local shopping mall. Police see Joe walking down the street, arrest him, and bring him to the police station. Two hours later at the police station, a detective who was not at the scene of arrest obtains a Miranda waiver from Joe. Joe confesses to the bomb plot during interrogation. This Miranda waiver will likely be insufficient to prove the taint of the unlawful arrest was dissipated or purged. Although a few hours passed and a different officer conducted the interrogation, the arrest without probable cause creates a more powerful taint and requires more for dissipation.

SITLA in Car example

EXAMPLE: Police have probable cause to arrest suspect for the offense of driving on a suspended license. Police wait for him to arrive at his home. When he arrives, police confront him as he is getting out of his car and place him under arrest. Suspect is placed in handcuffs and police search his person and find a vile of heroin in his pocket. Suspect is then placed in the back of a police cruiser. Police then search the interior of his car and find an unregistered pistol in the glove box. The heroin will be admissible because the search of the suspect's person was within the proper scope of the SITLA; the pistol will be inadmissible because the suspect was secured and did not have access to the car at the time of the search, and there is no reasonable basis to believe evidence related to the crime of driving on a suspended license will be found in the car.

Terry Stop: Establishing Reasonable Suspicion that Crime is afoot- Example

EXAMPLE: Police receive an anonymous tip that an African American teenager about six feet tall is at a bus stop wearing a red plaid shirt, and that he has an illegal pistol under his shirt in his belt. Even if police corroborate that a teenager matching this description is located at the bus stop provided in the tip, there is no reasonable suspicion because there is nothing predictive about the information corroborated. If, however, the tip indicates that, "in ten minutes" the same individual will arrive at the bus stop, and police wait there and observe his arrival, corroboration of this information does establish reasonable suspicion, although not probable cause.

Examples of Consent

EXAMPLE: Police respond to a report of domestic battery. They arrive at the home of the victim's mother, where the victim is located. The victim says her boyfriend beat her, and that he is in their shared apartment. The police ask the victim if she has the key, and she provides it to them and grants them consent to search the apartment. Police enter the apartment, arrest the boyfriend, and seize cocaine they observe in plain view on the coffee table. It turns out the victim moved out about a month earlier and did not have actual authority to grant consent. The search is nonetheless reasonable so long as a reasonable officer would have concluded she did have authority to grant consent at the time she granted it. EXAMPLE: A landlord may not consent to the search of a tenant's apartment. EXAMPLE: A motel owner may not consent to the search of a guest's room. EXAMPLE: An employer may not consent to the search of an employee's private storage area.

Exceptions to Fruit of the Poisonous Tree exclusion: Independent Source (Example)

EXAMPLE: Police surveillance establishes sufficient information to establish probable cause defendant is storing large amounts of marijuana in a warehouse. The lead detective sends one officer to the courthouse to present the information to a magistrate and request a search warrant. The officer does so, and the magistrate issues the search warrant. Before the officer returns with the warrant, the lead detective unlawfully enters the warehouse just to confirm that what they think they are going to find is actually there. He observes large amounts of marijuana. He then departs the warehouse and awaits the officer with the warrant. When the officer arrives with the warrant, they once again enter the warehouse and seize the marijuana. This evidence is admissible. Although the police committed an unreasonable search of the warehouse (a poison tree), that search in no way impacted the information submitted to obtain the warrant. Therefore, although there was an unlawful search (a poison tree) there is no "but for" connection between the tree and the "fruit" (the marijuana) because the unlawful search did not lead to the evidence. It is therefore admissible [Murray v. United States, 487 U.S. 533 (2005)].

The Sixth Amendment right to counsel is offense-specific. (exam tip and example)

EXAMPLE: Police were allowed to question a defendant without counsel about the murders of a homeowner and his daughter, even after the defendant had been indicted on burglary charges (and represented by counsel on these charges) relating to the victims' home [Texas v. Cobb, 532 U.S. 162 (2001)]. Remember, just because questioning does not implicate the Sixth Amendment right, it may still implicate Miranda or the Due Process voluntariness rule. Analyze each of these protections independently.

Exigent Circumstances Justifying a Warrantless Search and Seizure

EXAMPLE: The blood-alcohol level of a drunk-driving suspect will diminish over time. An individual suspected of murder by strangulation may have evidence under his fingernails that he may easily remove. Both types of evidence are easily destroyed or likely to disappear and thus may be obtained from the suspect's body by reasonable means, such as withdrawing blood by a trained medical specialist, or scraping under the nails with a nail file. If the method used was the only viable means to protect the evidence, it is more likely to be considered reasonable. EXAMPLE: Pummeling a suspect's stomach with nightsticks to induce vomiting before having the suspect's stomach pumped at the ER to retrieve illegal drugs swallowed is not considered a reasonable procedure for obtaining evanescent evidence. Such techniques "shock the conscience" and violate due process [Rochin v. California, 342 U.S. 165 (1952)].

Effect of a Miranda violation on subsequent confessions.

Effect of a Miranda violation on subsequent confessions. (a) Because a Miranda violation does not trigger the fruit of the poisonous tree doctrine, a statement made in violation of Miranda: normally does not taint a subsequent statement after a valid Miranda waiver even if it repeats the same confession. (b) However, police may not employ a "question first, warn later" tactic to deliberately bypass the effect of Miranda warnings. 1) If the police deliberately elicit a confession from a suspect during custodial interrogation without obtaining a valid Miranda waiver, and then elicit a Miranda waiver in the middle of questioning or immediately following questioning and have the suspect repeat the confession: the waiver will be considered invalid and both confessions will be made invalid.

Exceptions to Fruit of the Poisonous Tree exclusion: Inevitable discovery

Evidence that is obtained through a poison tree (a but for connection to a violation of the defendant's constitutional protection) will still be admissible if: the police would have inevitably discovered the evidence through an independent source. (just about to happen independent source) (a) Inevitable discovery is really another way of saying "almost independent source." (b) Because police obtain the evidence as the result of a "but for" link to a poison tree: to poisonous tree it is essential that the government prove independent source discovery was truly inevitable.

Exceptions to Fruit of the Poisonous Tree exclusion

Evidence with a "but for" link to a constitutional violation (poison tree) may still be admitted if the government can prove applicability of one of three exceptions: Independent Source Inevitable Discovery Attenuation

Exigent Circumstances Justifying a Warrantless Search and Seizure

Exigency justifies a warrantless search and seizure of evidence in or on a suspect's body provided that: (a) There is probable cause to believe that: the nature of the evidence renders it easily destroyed or likely to disappear before a warrant can be obtained EXAMPLE: During a Terry stop, a police officer sees a drug suspect place a pill in his mouth. The officer may grab the suspect on the throat in order to force the suspect to spit out the pill. (b) The procedure for seizing the evidence is: reasonable and does not shock the conscious.

Seizure of Property

For property to be seized, police must take some action that results with a meaningful interference with a possessory interest. a. If police take control of property, then it has been seized. b. If police place something on the property (like a beeper) that does not interfere with the owner's use of the property, then it has not been seized because there has been no interference with a possessory interest.

Hot Pursuit

Hot Pursuit: A warrantless search for a suspect is lawful when: police are in actual hot pursuit of the suspect (1) Police may enter and search a private dwelling: while in hot pursuit of a fleeing suspect even if the dwelling is not the suspects. (2) Police may execute a warrantless arrest the suspect in the premises and: also seize any contraband they observe in plain view pursuant to the hot pursuit entry.

Fruit of the Poisonous Tree- Suppression of Confession

If a "but for" connection exits between a prior constitutional violation (normally an unreasonable arrest) and a suspect's statement, the statement may be inadmissible fruit of a poisonous tree unless the government can prove an exception, even if it complies with the rules above. (1) Attenuation is the most common exception asserted to use a statement resulting from a "but for" link to a constitutional violation (poison tree). Effective attenuation will depend on how "potent" the poison was: the more flagrant the constitutional violation the more difficult it is to attenuate. (a) If an arrest is unreasonable because police failed to obtain a required warrant, but nonetheless had probable cause, that will normally be dissipated by a valid Miranda waiver: so long as the statement is not elicited immediately following the arrest. (b) If an arrest is unreasonable because police did not even have probable cause, the taint is much more difficult to dissipate, and will normally require: more than just a Miranda waiver it will probably require the suspect be released, comes back for subsequent questioning and the confesses.

SITLA in Home

If a suspect is arrested in a home, the scope of the SITAL is limited to the area of his lunging distance and does not include the authority to search the entire house. (a) However, if police have a reasonable basis to believe they may be at risk of ambush while in the home, they may conduct a cursory protective sweep of other parts of the home to rule out the risk that a person may be laying in wait for them. (Terry sweep) (b) This "Terry sweep" of the home is limited to ruling out the risk of ambush, therefore the scope is limited to places where a person may be hiding.

Automobile Exception to the Warrant Requirement- vehicles

If a vehicle is incapable of locomotion, or is parked in an area not proximate to public roads: the exception is inapplicable. (a) Accordingly, the police must: obtain a warrant to search such a vehicle or rely on some other exception. (b) However, this is a very narrow limitation— being parked in a parking lot in a place where automobiles normally stop temporarily does not trigger this limitation. Any automobile stop, for example to issue a citation, may lead to probable cause there is contraband in the vehicle. If probable cause arises after the initial stop a warrantless search will then be justified. EXAMPLE: Officer Jones pulls suspect over for speeding. As he is writing the citation, he asks suspect, "do you have anything in the car I should know about?" Suspect responds, "just a little weed in the glove compartment." Officer Jones may now search the glove compartment for marijuana, and any contraband he observes while doing so is subject to a plain view seizure.

Miranda Rule: Triggering the Miranda Rule Interrogation)- Exam Tip

If the police are aware of a particular vulnerability of the suspect and exploit that vulnerability, that fact is imputed to the "reasonable officer" used to assess whether the statements or conduct used by the actual police qualify as questioning.

Three requirements for the Exclusionary Rule

In order to claim the remedy of exclusion, three requirements must be satisfied: a. The unreasonable search or seizure must trigger the remedy of exclusion; (violating knock and announce is not enough) b. The defendant claiming the remedy (seeking exclusion) must have standing; c. The facts do not support applying an exception to the exclusionary rule

The Miranda Rule (wavier and rights)

In order to establish valid waiver: the police must advise the suspect of the rights he is giving up by agreeing to answering questions. These rights are: (1) the right to remain silent; (2) that anything said can be used against him in court; (3) the right to the presence of an attorney; and (4) if he cannot afford an attorney, one will be provided for him

Exclusionary Rule: Constitutional Violation Requirment

In order to invoke the fruit of the poisonous tree doctrine, the initial government illegality must be a constitutional violation. The Supreme Court has held that a violation of the Miranda warning and waiver requirement does not result in an actual violation of the Fifth Amendment. Therefore, Miranda violation is not a poison tree (the only consequence of a Miranda violation is inadmissibility of the confession in the prosecution case-in-chief). EXAMPLE: Criminal defendant is arrested lawfully but not read her Miranda warnings. After being subjected to custodial interrogation, she confesses to being a runner for a drug ring and tells the police where the drugs are manufactured and stored. Police use the confession to obtain a search warrant and find and seize the drugs. Her confession is inadmissible in the prosecution case-in-chief because police violated the Miranda rule, but the drugs seized are admissible even though there is a "but for" link between the Miranda violation and the drugs, because the Miranda violation is not a poison tree [US v. Patane].

Waiver of Miranda Rights

In order to neutralize the inherent coercion of custodial interrogation, the prosecution must prove: the suspect executed a knowing and voluntary waiver of Miranda rights. (a) The waiver must indicate the suspect understood the rights, and engaged in a course of conduct indicating a voluntary waiver: 1) This is normally established by having the suspect state orally or in writing she understands the rights and is willing to answer questions without a lawyer; 2) The waiver need not be in writing, but the prosecution must prove the suspect acknowledged her understanding of the rights. (b) The defendant need not be warned of: the possible charges he is facing. (c) Waiver may never be presumed from: the defendant's silence 1) However, because silence does not invoke the Miranda right, police are permitted to repeatedly ask a silent suspect for a waiver. (d) A valid Miranda waiver is strong evidence that the subsequent confession is actually voluntary, although it is possible to comply with Miranda and still violate the due process voluntariness test

Exceptions to Fruit of the Poisonous Tree exclusion: Independent Source

Independent source: If the evidence is obtained from a lawful independent source it is: admissible, even if the police acted illegally to confirm the location of the evidence. (a) In other words, there is: Where there is no but-for link between the seizure of the evidence and a violation of the defendants constitutional rights there may be a poison tree but because the evidence did not come from that tree it is admissible.

Miranda Rule: Triggering the Miranda Rule Interrogation)

Interrogation is: direct questioning, or words or actions a reasonable officer would anticipate would likely result in an incriminating response. (a) Interrogation focuses on "the reasonable officer", unlike custody, which focuses on "the reasonable suspect." b) Spontaneous or volunteered statements do not implicate the Miranda rule, even if they are made by a suspect while in custody, because: they are not the product of questioning.

Due process: Right to counsel (Exam Tips)

It does not matter why the defense lawyer is not present at the out of court identification. Even if police act in total good faith, and the lawyer is absent because of his how negligence, conducting the lineup without his presence violates the Sixth Amendment. The more inherently suggestive the out of court identification, the more difficult it is to prove by clear and convincing evidence it did not "taint" the subsequent in court identification. Look to the same "reliability" factors for due process to assess whether the in court identification is independent from the out of court identification.

Exceptions to Fruit of the Poisonous Tree exclusion: Attenuation (exam tip)

It is easier to attenuate the taint of an arrest that is unlawful because the police failed to obtain a required war-rant even though they had probable cause (like an in home arrest without a warrant) than an arrest where the police did not even have probable cause. This is because the "poison" from the first violation is less potent than the "poison" from the second violation.

Fourth Amendment Remedies: Standing and the Exclusionary Rule

Just because a search or seizure violates the Fourth Amendment does not automatically mean the defendant will be entitled to the remedy of exclusion of the evidence. Exclusion requires that the violation: was directed against the defendant's fourth amendment protections not someone else.

Exceptions to Fruit of the Poisonous Tree exclusion: Inevitable discovery (example)

Look to see if the gears of independent discovery had already been set in motion. EXAMPLE: Defendant is arrested for driving under the influence. He voluntarily gets out of his car and, after failing the field sobriety test, is handcuffed and placed in a police car. His car is then locked and left by the side of the road until the police are able to come back to tow the car back to the police station for an inventory search. But, before the tow truck comes to collect the car, the police officers search the entire car, including the trunk and glove compartments, without a warrant and find in the trunk evidence of a gambling ring being run by the defendant. This evidence would most likely not be suppressed under the doctrine of inevitable discovery.

Miranda Rule: Triggering the Miranda Rule (custody- Exam tip)

Not all seizures are custody, but all custody is a seizure. The line between a non-custody seizure and a seizure that is custody is normally identified by objective indications that the seizure is not "brief", but instead the suspect is likely going to end up at the station for booking. But remember, an encounter can escalate from a non-custody sei-zure into a seizure that is custody (which happens whenever the suspect is arrested). At this point, the Miranda rule comes into effect.

Exclusionary Rule: Standing (exam tip)

Offering unlawfully seized evidence against a defendant does not give the defendant standing to seek exclusion. Unless the government illegality intruded upon the defendant's Fourth Amendment protection (was an unreasonable search of his REP or seizure of his property), the defendant cannot prohibit the introduction of the evidence, even if the police obtained it by violating someone else's Fourth Amendment protections.

Other Limitations to the Exclusionary Rule: Impeachment

Other Limitations to the Exclusionary Rule (1) Impeachment. The exclusionary rule does not apply: to the use of tined evidence to impeach the defendant's testimony. A defendant can't hide behind the exclusionary rule to lie.

Seizures of Property- In Plain View

Plain view requires: (1) The police are: in a lawful vantage point to observe the item. (i.e., they don't have to conduct a search to observe it.) (2) The incriminating nature of the item is: immediately apparent. (What the officer sees immediately establishes probable cause to seize the item; and (3) The officer has: lawful access to the point of seizure (the officer may reach the item to take it without doing a search)

The Special Needs Doctrine

Police are permitted to use checkpoints to conduct brief seizures and/or limited searches no individualized suspicion or warrant in response to a public safety danger that cannot be addressed by complying with the normal individualized suspicion/warrant requirements.

Statements and Confessions- Actual Coercion: the Due Process Voluntariness Standard (Exam Tip and example)

Police deception and trickery during interrogation is just one of the factors to assess pursuant to the totality of the circumstances test, and rarely in and of itself renders a statement involuntary. EXAMPLE: An eleven year old confesses to a crime when confronted by a number of burly policemen. There is a legitimate question as to whether this confession is truly "voluntary." This would unlikely raise a voluntariness concern for an adult suspect.

Use of Animals and Technology

Police use of animals or commonly available equipment to enhance their natural senses of sight, hearing, or smell does not transform their observations into a search so long as what they see, hear, or smell is detected without intruding on a REP. EXAMPLE: If police use a dog trained to detect the scent of marijuana to sniff a briefcase in bus station, this is not a search because what the dog smells has escaped from inside the briefcase into the open air and is therefore exposed to the public. However, if police use a device that allows them to "see through" the exterior of the briefcase, this is a search because the contents of the briefcase were not exposed to the public. When the government uses a device that is not in general public use, enabling them to see "through the walls" of a home (like a heat sensor), this is a search because it intrudes upon a REP.

Right to Speedy Trial: Factors in determining violations (part 2)

Prejudice to the defendant (1) The unreasonable delay normally must result in: prejudice to justify dismissal. (2) There are three "types" of prejudice, listed from least to most significant: (a) Anxiety (b) Excessive pre-trial incarceration (c) Degradation of evidence compromising the accuracy of the trial

The Substantive Component: Probable Cause and Reasonable Suspicion.

Probable Cause is "fair probability" defined as facts and circumstances that would warrant a reasonable person to conclude the individual in question has committed a crime to support arrest or specific items related to criminal location to support a search. (1) Probable cause is an objective standard. As a result, the subjective intentions of the police officer pay no role in assessing probable cause. A defendant cannot challenge probable cause by asserting that the officer had a subjective improper motive for an arrest. The search incident to the arrest is valid so long as the objective facts indicate that a crime was committed, arrest is supported by probable cause. It is irrelevant that the officer conducted the arrest simply to use it as an opportunity to search for evidence he had a hunch he might find or to harass the suspect. [Whren v. U.S., 517 U.S. 806, 813 (1996)]. (2) Probable cause is always required to engage in a: full-scale intrusion, a full-blown evidentiary search or an arrest.

Establishing Probable Cause

Probable cause is often established based on: police observation, eyewitness accounts, forensic evidence or tests, or the defendant's own admissions or conduct.

Establishing Probable Cause Through Informants

Probable cause may also be based on: a tip from a confidential or anonymous informant (1) The totality of the circumstances test is used to determine the reliability of an informant to establish probable cause The factors considered are: (a) Veracity of the informant (does he have a positive track record) (b) Basis of knowledge (how does the informant know of the activities of the suspect) (c) Police investigation that corroborates the fact in the tip and establishes the accuracy of the informant's predictions.

Reasonable Suspicion

Reasonable Suspicion is defined as: belief based on articulable information more than a mere hunch used by a reasonable person or police officer indicating that e suspect has or is about to engage in criminal activity. (1) Reasonable suspicion is a level of certainty that will justify: only a brief investigatory seizure (terry stop) or a cursory protective search. Reasonable Suspicion will never justify an arrest or a full-blown evidentiary search. (a) A police officer's subjective suspicion (or instinct, or hunch): is not objectively reasonable and therefore is never sufficient to provide authority to do even a cursory seizure or search. (b) In order to transform "subjective "unreasonable" suspicion" to "reasonable" suspicion, the officer must have some verifiable objective fact to support her suspicion. Reasonable suspicion is easily understood as the addition of an objective fact to the police officer's subjective instinct based suspicion that corroborates that suspicion. Doing so permits a reviewing court to assess whether the police officer has a "particularized and objective basis" for suspecting legal wrongdoing.

Terry Stops

Reasonable suspicion that "crime is afoot" (a crime is in progress or has just been committed by the suspect) justifies a: brief investigatory seizure

Terry Stop: Establishing Reasonable Suspicion that Crime is afoot

Reasonable suspicion that crime is afoot may be established by: (1) Police observation or eyewitness reports (2) Headlong flight from police in a high crime area (3) An informant's tip coupled by police corroboration or police investigation that corroborates the informant's accusation. (a) Unlike the test for probable cause, which requires the tip to provide predictive inside information, reasonable suspicion is established by: verifying the informant's predictions even if they don't indicate insider access. (need to be insider if for PC) (b) But a tip that provides nothing more than existing information, even if corroborated by police investigation, does not establish even reasonable suspicion.

Satisfying Confrontation clause through "adversarial testing" (exam tip and example)

Remember, because a Grand Jury is not an adversarial proceeding, the "target" has no opportunity to cross-examine a witness at a Grand Jury. Therefore admission of that witness's testimony at trial against the defendant violates the Confrontation Clause. EXAMPLE: a prior statement of a witness made during a preliminary hearing is offered against the accused at trial pursuant to a hearsay exception because the witness in unavailable. This does not violate the Confrontation Clause because testimony at a preliminary hearing is under oath and subject to cross-examination. Another prior statement from a witness who testified at the Grand Jury that indicted the accused is also offered as a hearsay exception because the witness in unavailable. This statement violates the Confrontation Clause, because although it was made under oath it was not subject to cross-examination.

Actual coercion: exam tip

Remember, no impeachment exception for an actually coerced statement, and no requirement to be in custody when the statement is made. Don't even know you are talking to a government agent.

Applying the Fourth Amendment to Searches

Searches pursuant to a warrant. Absent independent justification, a search warrant grants only the authority to search named places or persons a. The scope of the search is limited to: the premises described in the warrant b. Nonetheless, contraband: may be lawfully seized under the plain view doctrine during warrant execution so long as it comes into plain view within the scope of the warrant c. A location owned by non-suspects may be searched upon obtaining a warrant d. A search warrant for a premises carries with it the right to detain persons in the home during the search but not the right to search those persons unless the person is listed in the warrant.

Exclusionary Rule: Standing

Standing. The defendant asserting the Fourth Amendment remedy of exclusion must: personally be the victim of the unreasonable search or seizure. a. In analyzing standing, the court must determine: whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place. b. In order to have standing, a defendant must show that: the unreasonable search and seizure intruded on his personal constitutional rights. c. A defendant may not: Assert a violation of someone else's constitutional rights

Identifications- Of Defendant (due process standard)

The Due Process Standard: Applies to ALL types of identifications, at ALL stages of the investigatory and prosecutorial process. a. If a defendant can prove that an identification procedure used by the government was so unnecessarily suggestive that it created an irreparable risk of mistaken identification: the procedure violates due process and the identification may not be used at trial. (1) The "touchstone" of this due process test is reliability, which requires defendant to prove both: (a) That the procedures used were: unnecessarily suggestive and (b) That the suggestiveness: produced an unreliable identification. EXAMPLE: A witness gives a description of a mugger. Police show her a single photo. This procedure is unnecessarily suggestive because the police could have easily shown her a photo array. This alone is insufficient to violate due process. The defendant must show that this unnecessarily suggestive method produced an unreliable identification, which will turn on a totality analysis of a number of factors.

Seizure

The Fourth Amendment's "reasonableness requirement" is triggered by: ny government seizure of a person or property

Right to Jury Trial- Makeup of the Jury: The Jury Pool

The Jury Pool: (1) The defendant has a right to a jury selected from a fair cross-section of the community, which means a jury pool that reflects: a fair cross section of the ethnic and gender demographic of the community. (2) If the defendant can show that a distinct group was "systematically excluded" from the jury pool, he is entitled to a new trial.

Miranda Rule: Triggering the Miranda Rule (custody)

The Miranda warning and waiver requirement is triggered by: Custody plus interrogation. Custody is formal arrest, or a situation where a reasonable person in the suspect's position would believe: there freedom has been deprived to a degree analogous to a formal arrest (the "functional equivalence" test) (a) Custody requires an objective indication that police are initiating criminal process, for example being taken to the station for booking. (b) The subjective intentions of the officer are not controlling—custody is assessed objectively from the perspective of the suspect. (c) A Terry Stop is not custody because it is defined as: a brief investigatory seizure (d) Therefore, police may: question people subject to a terry stop without implicating the Miranda rule.

The 5th Amendment Privilege Against Self-Incrimination (PASI): (exam tip)

The PASI applies only to "testimonial" evidence, and does not permit a witness to refuse to provide other evidence even if it is clearly incriminating (blood, hair, DNA, fingerprints, participation in a lineup, handwriting samples, etc.).

Due process: Right to counsel

The Right to Counsel: Applies only to corporeal identifications (human)(physical identification) and only after the initiation of formal adversarial process (when the suspect becomes the defendant). a. Because the Supreme Court has held an out of court corporeal identification procedure is a "critical stage" in the adversarial process: defendant may not be subjected to such a procedure without counsel present or a knowing and voluntary waiver of that assistance. b. If police conduct a corporeal lineup in violation of the Sixth Amendment right to counsel: (1) The results of the lineup (the identification) are per se inadmissible at trial. Under no circumstances will the witness be allowed to testify at trial to her identification of the defendant in the lineup (2) The witness will be prohibited from making a subsequent in court identification of the defendant unless the prosecution can prove: by clear and convincing evidence that he in court identification is independent of the inadmissible out of court identification.

Double Jeopardy-Separate Sovereignties Doctrine

The double jeopardy prohibition does not prevent dual prosecution by separate sovereigns. Therefore, a defendant may: be prosecuted for the same criminal conduct by a state court and a federal court.

Special Rules During Interrogations:effect of invocation on police ability to "re-initiate" questioning

The effect of invocation on police ability to "re-initiate" questioning by approaching the suspect and requesting a new Miranda waiver will turn on the Miranda right the suspect invoked: (a) Invoking the right to silence: if a suspect invokes the right to silence by cutting off questing the police must scrupulously honor this invocation. To resume questioning: 1) Police must allow for: a significant piece of time to elapse, so it doesn't look like they are badgering the suspect 2) Obtain: a new Miranda waiver There is not set amount of time police must wait before re-initiating questioning with a suspect who invokes the right to silence. Factors that indicate they "scrupulously honored" the invocation include passage of a significant amount of time, different location, different officers, different subject matter.

Due Process Identifications- Factors of suggestive procedures

The following factors are considered to assess whether an unnecessarily suggestive procedure results in an unreliable identification: (1) The opportunity to view the criminal at the scene; (2) The witness's degree of attention; (3) The accuracy of the witness's description; (4) The degree of certainty of the witness; and (5) The time interval between the crime and the identification (the longer the interval, the less reliable). When an out-of-court identification is excluded because it violates due process: a subsequent in court identification of the same witness will almost always be excluded as fruit of the poisonous tree.

Exclusionary Rule: Standing (rules to assess standing)

The following rules are used to assess standing: (1) A defendant has standing if: he has ownership or a possessory interest in the place search or the item seized. (2) The owner of a car, or the person in possession of the car (like someone who rents a car) has standing to: seek exclusion of evidence obtained as a result of an unreasonable search of the car. (a) Passengers in the car do not have standing to complain about the search of the car. (b) However, when an automobile is seized (e.g., pulled over), all occupants in the automobile are seized, even if they are just passengers with no ownership or possessory interest in the car. 1) An unreasonable seizure of a car equals: an unreasonable seizer of all the passengers in the car. 2) If a passenger has been seized unreasonably, this unlawful seizure is a poison tree, which may require the exclusion of evidence the seizure leads to. (3) Guests in someone else's residence: (a) A defendant who is an overnight guest in another's home: has standing to challenge the search of the home. (b) Short-term commercial visitors, or non-overnight social guests: normally do not have standing to complain of an unreasonable search.

The 5th Amendment Privilege Against Self-Incrimination (PASI): Government Supplanting PASI (Immunity)

The government can "supplant" the PASI (thereby removing the fear of self-incrimination) by granting immunity. There are two types of immunity: (1) Use/Testimonial Immunity: prohibits the use of the witness's testimony or any evidence derived from that testimony against the witness (a) This type of immunity full supplants the PASI, and permits the government to have the court force the witness to testify; (b) Use/testimonial immunity does not bar subsequent prosecution of the witness so long as the evidence has no connection to the testimony. (2) Transactional immunity is extremely broad and prohibits any future prosecution of the witness for the transaction that was the subject of the testimony no matter where the evidence came from.

Pre-trail procedures: Grand Jury Indictment

The indictment is a written accusation stating charges against the defendant issued by a grand jury after it reviews the prosecution's evidence. a. A grand jury not an adversarial hearing, it is an investigatory tool. Therefore: (1) The "target" of the investigation has no right to be present, and no right to assistance of counsel if called to testify. (2) The prosecution presents: evidence to the grand jury with no confrontation process. (3) The prosecution has: no obligation to present clearly exculpatory evidence to the grand jury. b. Miranda warnings need not be given to: potential defendants testifying at a grand jury because a grand jury is not custody. (1) However, the target of the investigation and all other witness may assert the privilege against self-incrimination.

Violation of the Sixth Amendment Right to Counsel: the Massiah Rule- Initiation of formal adversarial process

The initiation of formal adversarial process (formal charge, indictment, arraignment, or preliminary hearing) triggers the Sixth Amendment right to the assistance of counsel during all critical stages of the adversarial process. (1) A "critical state" includes: the deliberate elicitation of statements (questioning), physical lineups, preliminary hearings an trial. (2) In Massiah, the Supreme Court held that the "deliberate elicitation" of a pre-trial statement from a defendant is a "critical stage" triggering the right to assistance of counsel. (3) Deliberate elicitation is: express or implied questioning by the police of the defendant.

Right to Speedy Trial: Factors in determining violations

The primary interests served by the speedy trial rule are accuracy and prevention of excessive pre-trial stigma. The test for violation considers the following factors: a. Length of delay (1) Normally a delay of: more than one year will trigger an inquiry. (2) Defense requested delays, including motions, are excluded from the duration calculation. b. Reason for the delay (1) A "good" reason is one that the prosecution has no control over. (sick or missing witness) (2) A "bad" reason is one that the prosecution could have avoided by due diligence (failure to issue subpoena); c. Demand for speedy trial (1) While this is not essential, failing to do so normally indicates: the defendant did not consider the delay to be prejudicial

Primary purpose of a special needs search or seizure

The primary purpose of a special needs search or seizure: must be to protect the public from an immediate danger (a) If the primary purpose is: general crime control or discovery of evidence this exception is inapplicable. (b) Common special needs checkpoint searches include sobriety checkpoints, search for recently escaped prison inmates, counter-terrorism checkpoints, and checkpoints to search for suspects of a recent crime. EXAMPLE: Police set up a checkpoint to search vehicles for evidence of illegal drugs. The checkpoint violates the Fourth Amendment because its primary purpose is indistinguishable from the general interest in crime control and because the checkpoint is not based on individualized suspicion of wrongdoing.

Guarantees of Fair Trial: The Right to Counsel at Trial- Right to Jury Trial

The right to a jury trial attaches in any criminal proceeding where the defendant faces a potential sentence of: more than six months. a. Note that unlike the right to counsel, the right to a jury is triggered by potential result: not actual result. If the d faces conviction of any single charge with a minimum sentence of more than 6 months she has the right to a jury trial. (Cant add up minor offenses to get to six months)

Guarantees of Fair Trial: The Right to Counsel at Trial -Right to effective counsel

The right to counsel means the right to effective counsel. Because courts presume that legal counsel is effective, it is very difficult to prevail on an ineffective assistance of counsel claim. a. A defendant seeking a new trial based on a claim of Ineffective Assistance of Counsel must prove both: (1) The counsel's performance was ineffective (a) Her performance: fell below a minimum standard of lawyer conduct. (b) For example: sleeping in trial, failing to file a discovery request, failing to offer vital and clearly exculpatory evidence; and (2) Had the lawyer been effective: it would have created a reasonable probability of a different outcome (3) In other words: an effective lawyer would have created reasonable doubt. EXAMPLE: Assistance of counsel is effective even when the lawyer fails to present mitigating evidence, fails to mount a case for life imprisonment, and waives final argument during the sentencing phase of a death penalty proceeding.

Complying with the Fourth Amendment

The touchstone of the Fourth Amendment is reasonableness. Accordingly, a search or seizure: must be reasonable in order to comply with the fourth amendment. a. If police obtain a warrant to conduct the search or seizure, it creates a presumption of reasonableness. To challenge the search or seizure, the defendant bears the burden of rebutting this presumption by proving: (1) The warrant: was not based on valid probable cause (2) The magistrate: was not neutral or dethatched (3) The warrant: failed to describe with particularity the thing to be seized or the place to be searched. Even if a warrant is determined invalid, the evidence may still be admissible pursuant to the good faith exception to the exclu-sionary rule. Exclusion requires the additional determination that police acted unreasonably when they relied on the war-rant. b. Because a search or seizure without a warrant is presumptively unreasonable, the government bears the burden of proving the search or seizure fell within an established exception to the warrant requirement.

The 5th Amendment Privilege Against Self-Incrimination (PASI): Witness waiving PASI

The witness waives the PASI: simply deciding to testify. There is no requirement to advise the witness of their right not to testify. The only time that is required is when the Miranda rule is triggered.

In Plain View- Inadvertence

There is no "inadvertence" requirement. Even if he police suspect they might find an item while executing a search warrant that they did not list in the warrant, if it comes into plain view the seizure is reasonable. EXAMPLE: Police obtain a warrant to search suspect's home. The items to be seized listed in the warrant include stolen coins and stamps. The officer or requested the warrant also anticipates the suspect has weapons used in a robbery in his home. During the search for the coins and stamps, the Uzi machine gun comes into plain view. The officer may seize the machine gun even though it was not listed in the warrant, and even though he anticipated he would find it. Because he was acting within the scope of the warrant, and had probable cause to believe the machine gun was contraband, the plain view doctrine permits the seizure.

No Reasonable Expectation of Privacy

There is no reasonable expectation of privacy when the objects to be seized are: held out to the public. In other words, if the person knowingly exposes something to the public, the police hearing it, seeing it, or smelling it is not a search. If exposed to public then no REP and no search. EXAMPLE: In the example above, had the police used a lip reader to watch the person's lips through the glass windows of the phone booth and writing down what he said, this would not be a search because when the person spoke in a glass phone booth he knowingly exposed the movement of his lips to the public.

The Massiah Rule- Initiation of formal adversarial process: Requierments for admissability

Therefore, any statements obtained by the police from a defendant related to the crime he is formally charged with is inadmissible unless: (1) His lawyer was present during questioning; or (2) He exercised a knowing and voluntary waiver of assistance of counsel EXAMPLE: Defendant is indicted and arraigned for the murder of a child. While driving defendant from one city to another, Detective Leaming says to him, "I know you want the victim's family to be able to give their child a Christian burial. I am not asking you for an answer; I just want you to think about that as the snow starts to fall." About 30 minutes later, Defendant tells Leaming where the body is and leads him there. This confession is inadmissible. Leaming's statement, although not a direct question, was an implied question. Because the indictment and arraignment both initiate formal adversarial process, Defendant was protected by the Sixth Amendment Right to Counsel. Because counsel was not present and Leaming never obtained a waiver, use of the confession violates the Sixth Amendment.

Third-Party Consent

Third-Party Consent (a) Any person who has joint control or use of shared premises: may consent to a valid search, and any evidence d seized in plain view can be used against the co-occupants. (b) Such consent applies to: common areas but not private reserved areas where the defendant has exclusive control. (c) A police search based on consent is reasonable so long as: the person granting consent his actual authority over the place or a reasonable officer would believed that the person had authority to give consent. (d) A present and objecting co-tenant trumps consent granted by the other co-tenant. However, if the suspect is not present and does not object, the co-tenants consent is valid against him.

Invoking the miranda right to counsel- Exam Tip

This is a critical distinction between the Miranda right to counsel and the Sixth Amendment right to counsel. Because it is non-offense specific, the Miranda right is more protective.

Double Jeopardy-Same Offense

Two crimes occurring out of the same transaction are considered the same offense, unless: a. Each charge requires proof of: a separate criminal impulse. (i.e., a separate victim in a single transaction, each victim in a robbery of 10 people is separate victim requiring a separate charge) b. Each charge requires proof of: a separate factual element. Both have to have a different element not just one with an additional element.

Due Process identification- necessarily suggestive procedures

Use of inherently suggestive procedures because doing so is necessary under the circumstances does not violate due process. EXAMPLE: Police are investigating a brutal murder of one homeowner and the attempted murder of his wife. The wife is in the hospital close to death. Police arrest a suspect who matches the description of the assailant. They bring the suspect to the victim's hospital room in handcuffs to give her an opportunity to identify him, which she does. Because only one suspect was presented to the victim in handcuffs and in police custody, this procedure was highly suggestive. However, because the victim was the only witness who could positively identify the assailant, and because it was highly possible she might die, use of this "necessarily suggestive" procedure did not violate due process.

Warrantless Searches

Warrantless Searches: Exceptions to the Warrant Requirement: A warrantless search is unreasonable unless it falls within one of the following established exceptions.

Other Limitations to the Exclusionary Rule: Good Faith (exam tip)

Warrants are usually issued by magistrates based on their conclusion the evidence presented is sufficient to establish probable cause. Motions to exclude that evidence are presented to the trial court, which then reviews the warrant application in order to determine whether the magistrate made a proper determination of probable cause. Sometimes the trial court determines the magistrate made a mistake in issuing the warrant because of a lack of probable cause. However, so long as a reasonable officer would have still relied on the warrant, exclusion will have no deterrent value on future police conduct and is therefore not appropriate.

When Jeopardy Attaches

When a defendant moves to dismiss a charge based on a violation of double jeopardy, she must establish she had been in jeopardy for the: same offense, by the same sovereign previously. Being previously charged is insufficient; the defendant must prove jeopardy had "attached" previously: a. In a non-jury trial, jeopardy attaches when the first witness is sworn and the ct begins to hear evidence b. In a jury trial, jeopardy attaches when the jury is impanelled and sworn.

When Jeopardy Attaches- Exam Tip

When a grand jury fails to indict a target or a charge is dismissed prior to the jeopardy attachment point, jeopardy has never attached and that target may again be the subject of a grand jury investigation for the same offense or the charge may be brought again.

SITLA in Car

When an arrest is affected while the defendant is in a car or has immediately exited the car, a special rule applies to the scope of the SITLA [Arizona v. Gant]: (a) Like any other arrest: the police may automatically search the person of the arrestee. (b) If the arrestee has genuine access to the interior of the car after being placed under arrest: the scope of the ITA extends to the interior of the car and al containers in the car. (c) If as the result of being placed under arrest the arrestee does not have genuine access to the interior of the car: a search of the interior of the car is permitted only when police have reasonable belief that evidence related to the crime is on the car.

Exclusionary Rule

a. A defendant who has standing to complain about an unreasonable search or seizure may: invoke an exclusionary rule to prohibit the government from introducing evidence obtained as a direct or derivative result of an unreasonable search or seizure. b. Fruit of the Poisonous Tree Doctrine: In addition to excluding the direct evidence obtained as the result of the unreasonable search or seizure, any additional evidence derived from the initial illegality, including oral statements and physical objects: falls within the scope of the exclusionary rule as tainted fruit of the poisonous tree.

Seizure of Persons

a. A person is seized when, as the result of government action: a reasonable person in his position would not feel free to leave or otherwise terminate the police encounter. (1) Not all police encounters are seizures. If a real person would feel free to leave or terminate the encounter there is or seizure. (2) A seizure occurs when the police use physical force to restrain a suspect, or when they make a show of authority followed by submission. (a) If a suspect is located in a naturally confined location (like a bus), the test is: whether a reasonable person would feel free to terminate the encounter with the police. b. Arrest is a "maximum" seizure, indicated by police action that initiates the criminal prosecution process (taking the suspect to jail). All arrests are seizures, but not all seizures are arrests. The difference is indicated by purpose and duration.

Warrants

a. A valid warrant to search or seize must be issued by a neutral and detached magistrate, based on probable cause, and describe with particularity the thing to be seized or the place to be searched. (1) The information (affidavit) presented to the magistrate must provide relevant facts that lead to the conclusion that: it is more probable than not (fair probability) that a person committed a crime or that evidence will be found in a particular location. (2) The information presented to the magistrate must not be stale; it must be relevant and fresh. b. It is improper to issue a warrant, even when there is probable cause, if the method of intrusion is unreasonable. Example: It is improper to require the removal of a bullet from an individual suspected of robbery when the bullet is deeply embedded in the body, removal would damage the body, and the removal would require general anesthesia.

Seizures of Property

a. A warrant based on probable cause is required to justify the seizure of property. b. No warrant is required if the property is: in the officer's plain view.

Pre-Trail Rights: Discovery

a. It violates due process for the prosecution to: fail to disclosure to the accused evidence that is both favorable and material (1) Favorable—the disclosure trigger: (a) If defense makes a discovery request, any evidence that would tend to help the defense is favorable; (b) If defense fails to make a discovery request, only evidence that is clearly exculpatory is favorable. (2) Material—the remedy standard: if the prosecution fails to disclose favorable evidence, a defendant is entitled to a new trial (or sentencing) if that evidence was also material. (a) Material means: that the evidence would have created a reasonable probability of a different outcome. (b) In other words, had it been disclosed: it would have created reasonable doubt. b. The prosecution is not required to disclose this information to a criminal defendant prior to plea bargaining or entering into a plea agreement with him. c. Destruction of evidence held by the government violates due process only where: defendant can show bad faith. Negligent or reckless handling of evidence that leads to its destruction is insufficient to violate due process.

Federal and State System

a. Our focus is the United States Constitution. These rights are incorporated to the states in the due process clause of the 14th amendment. They provide a baseline of procedural protections that the state may not deprive. However, states are always permitted to provide additional procedural protections to suspect and defendants. A state statute that grants police authority to engage in conduct that violates the federal constitutional standard is invalid (like a statute authorizing no-knock warrant execution for an entire category of crimes).

The 5th Amendment Privilege Against Self-Incrimination (PASI):

a. The Fifth Amendment states that "no person shall be compelled in a criminal case to be a witness against himself." b. This means any person called to testify in any proceeding (trial, grand jury, preliminary hearing, administrative hearing, legislative hearing, court-martial, etc.) has an absolute privilege to refuse to testify when: (1) He has a: Real and substantial fear that his testimony will result in self-incrimination or contribute to his criminal conviction in the united states. (2) He asserts the privilege by refusing to testify.

The Fourth, Fifth, and Sixth Amendments

a. The Fourth Amendment Protects the people from unreasonable searches and seizures. And requires that warrants be supported by probable cause. b. The Fifth Amendment Prohibits coerced confessions, unreliable identifications, and provides a privilege against self-incrimination. c. The Sixth Amendment Provides a person formally accused of a crime the right to assistance of counsel during all critical stages of the adversarial process (trial, preliminary hearing, police questioning, and physical identification proceedings). Also includes the confrontation clause which requires that testimonial evidence be subject to adversarial test-ing.

Reasonable Expectation of Privacy (REP).

a. The defendant manifests: a subjective expectation of privacy by making an effort to shield the place thing or activity from the public. Like pulling down your window blinds. b. The expectation is objectionably reasonable because it is an expectation that society is willing to recognize EXAMPLE: A person in a closed telephone booth does have an actual (subjective) and reasonable (objective) expectation of privacy in the content of his conversation. By closing the phone booth door, the person manifests an effort to shield the sound of his voice from the public, and because he has not exposed the content of his conversation to the public, this expectation is one society recognizes as objectively reasonable. Accordingly, attachment of electronic eavesdropping devices on the exterior of the phone booth constitutes a search because it is a government intrusion on the REP [Katz v. United States, 389 U.S. 347 (1967)].

Warrant Execution

c. Warrant Execution (1) Police must normally: knock and announce their identity before entering a home to execute a warrant. (2) Knock and announce is not required if: police have reasonable suspicion to believe that doing so will endanger officers, lead to destruction of evidence or the flight of the suspect. (3) The violation of the "knock and announce" rule violates the fourth amendment but does not rigger the exclusionary rule. * * * Very important

In Plain View- Exception to warrantless requirement for seizure not search

e. The Plain View doctrine is: an exception to warrant requirement for a seizure. It never justifies a warrantless search for contraband. If the officer must conduct a search in order to observe the item, it was not in plain view. EXAMPLE: A police officer is searching an apartment for an individual who shot a bullet through the floor into the apartment below. While in the apartment, the officer observes a stereo receiver that seems to "high end" to be in such a run down apartment. The officer has a hunch the receiver is stolen, so he lifts the receiver to write down the serial number from the bottom. He calls in the number and it turns out the receiver was reported stolen. The officer then seizes the receiver. Because the officer had to move the receiver to establish probable cause it was stolen, and because moving the receiver went beyond the scope of searching the apartment for a person, the requirements of plain view were not met and the seizure was tainted by the predicate unreasonable search. Had the serial number been on top of the receiver observable without expanding the scope of the search for the person, the requirements would have been satisfied and the seizure would have been reasonable

The Massiah Rule- Initiation of formal adversarial process (exam tip)

it is useful to distinguish a "suspect" from a "defendant." A suspect is an individual suspected by the police of hav-ing committed a crime. A suspect becomes a defendant at the initiation of the formal adversarial process—when he is formally charged and the prosecutor is now involved in the case. A "suspect" has no Sixth Amendment pro-tection; a "defendant" does, but only for the crime he is a defendant for. In other words, the Sixth Amendment is "offense specific."- Helps with distinction between Miranda and 6th amendment rights