Criminal Procedure

• Member of executive branch
• Primary discretion to charge
• Influence over grand jury by: (a) Drawing up indictment; (b) calling and examining witnesses; (c) advising GJ on the law; (d) Being in constant attendance during proceedings

• Cannot mislead GJ or engage in fundamentally unfair tactics
• Cannot insist on indictment based on known perjury
• Cannot make statements or argue in a manner calculated to inflame the GJ unfairly against the accused

• Member of judicial branch
• Only hears the side of the prosecutor
• Independent body
• Secret proceedings

• Accusor - sworn to investigate and present for trial persons accused of wrongdoing
• Bulwark - Shield between D and gov. protecting D from oppresive and unfounded prosecution

No person can be held for a capital or infamous crime absent a presentment of indictment by the GJ

• Does not apply to states
• Was not incorporated by DP clause

GJ may issue indictment based only on heresay evidence - only need enough evidence to call for a trial of the charge on the merits

Don't want a mini-trial to determine adequency of evidence - delays the criminal justice process

• Receive
• Relate
• Remember
• Reliability (bias; pis; prior convictions)

Prosecutor cannot deceive grand jury as to quality of evidence

Prosecution does not have to present exculpatory evidence to the GJ

Prosecutor can choose not to indict (signature of prosecutor is necessary to the validity of the indictment - prosecutor is not under a duty to prepare indictments that he is not willing to sign

US atty may, by leave of court, file a dismissal of the indictment

requires the prosecutor to sign the indictment - prosecutor signs if he agrees

Cannot substitute discretion of the court for the US atty's decision not to prosecute

Private individuals cannot initiate a criminal prosecution without the approval of the DA or atty general

When the accused is compelled to make an incriminating and testimonial statement

5th amendment cannot be asserted by a collective group or by a representative employee or agent of that collective group - personal privilege that only applies to natural individuals

A sole proprietor's tax records in the possession of his accountant are not protected by the 5th

Demanding production of documents is not a compulsion of testimony

• It amounts to admission of their possession and control
• It authenticates the documents produced

An ind. assertion that the prosecutor has brought the charge for reasons forbidden by the constitution

constitutional constraints - decision whether or not to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification

credible showing of different treatment of similarly situated people - some evidence tending to show the existence of the essential elements of the defense, discriminatory effect and discriminatory intent

• Prosecution must disclose evidence that is both:
• favorable to the accused
• Material either to guilt or punishment - result of the proceeding would have been different

material only if there is a reasonable probability (sufficient to undermine confidence in the outcome) that had the evidence been disclosed the result of the proceeding would have been different

• (fundamentally unfair - material) Prosecutor's knowledge and failure to disclose of perjured testimony
• D does not make Brady request and prosecutor fails to disclose evidence favorable to accused
• D makes specific request and prosecutor fails to disclose

• persons
• houses
• effects
• papers

• Probable cause
• Oath/affirmation
• warrant particularly describing what needs seized
• Warrant particularly decribing place that needs searched

Privacy (subjective and objective) v. Legitimate governmental interest

• Hot pursuit
• Cry for help
• Destroy evidence
• Consent
• Public arrest
• Emergency Aid
• Independent Source
• Search incident to lawful arrest

• Persons - public schools
• Places - airports, borders
• Professions - railroad worker, secret service

• Exclusion
• Prosecution
• Civil Suit

The 4th amendment's protection against arbitrary police intrusion is basic to the concept of a free society, and therefore implicit in the concept of ordered liberty and enforceable against the states through DP of 14th

Exclusionary rule is incorporated to the states

Exclusionary rule does not apply to grand jury proceedings

A violation of knock and annouce does not require exclusion because the interests protected by this rule have nothing to do with the actual seizure of evidence

Good faith exception to exclusionary rule - no suppression of evidence obtained in objective reasonable good faith reliance on a warrant

• Magistrate misled by info in affadivit affiant knew or should have known was false
• Magistrate wholly abandoned his judicial role
• Warrant so lacking in PC that it would be unreasonable to rely on it
• Warrant is facially deficient

Unreasonable to proceed on a warrant that does not list the things being sought

allows admission of evidence that has been discovered wholly independent of any constitutional violation

• Knock and announce
• Good faith
• Independant source
• Inevitable discovery

unconstitutionally obtained evidence may be admitted at trial if it inevitably would have been discovered in the same condition by an ind. line of investigation that was already being pursued when the constitutional violation occurred.

compulsory production of private books and papers of the woner of goods sought to be forfeited is the equivalent of an unreasonable search and seizure

• Gov. can seize mere evidence during a search. But:
• Must be a nexus between the item received and the criminal behavior
• PC must also be examined

DDoes the person have a constitutionally protected reasonable expectation of privacy

• (Subjective) Has the individual manifested a subjective expectation of privacy in the object of the challenged search
• (Objective) Is society willing to recognize that expectation as reasonable

• electronically listening to and recording suspect while on the telephone in a phone booth violates the suspect's reasonable expectation of privacy and therefore violates 4th amendment
• constitution protects people not places
• Public searches conducted without a warrant are per se unreasonable absent a few exceptions

• domestic area
• Proximity to home
• Use
• efforts (to keep from prying eyes)

What a person knowingly exposes to the public even in his own home is not subject to 4th amendment protection (no objective expectation of privacy)

As long as a person is in a place where they have a right to be and there is no noise, wind, dust, or threat of injury, there is no 4th amendment violation

No privacy for activities outdoors in fields, except in areas immediately surrounding the home

More latitude in inspections of commercial property because the expectation of privacy differs greatly from the sanctity of the home

• Taking aeriel photos of an industrial plant complex navigable airspace is not prohibited by the 4th
• What is observable to the public may be observable to the gov.
• May be a violation if the gov. uses highly sophisticated surveillence equipment not generally available to the public

using a device not in general public use to explore details of a home is a use - Key: home is where intimate activities are conducted

No 4th protection from the recording or radio transmission of conversation a suspect has with another person

4th amendment does not protect expectations of trust

Physical manipulation of bus passenger's carry on luggage violated protection against unreasonable searches

Home is sacrosanct - entry into a home without a warrant is presumptively unreasonable

Cannot enter a third party's house without a search warrant on an arrest warrant for a suspect

Time required to wait after knock and annouce is a function of the item sought

Imminent disposal, not travel time to entrance, that governs when police may reasonable enter

Obligation to knock and announce gives way when officers have a reasonable suspicion that knocking and announcing under the circumstances would be dangerous or futile or would inhibit the effective investigation of a crime

Can be issued by magistrate if there is specific information that the suspect has a history of violence or that there are drugs involved

It is lawful to temporarily seize someone by refusing to allow him to enter his home unaccompanied, which may permit him to destroy evidence while the cops get a warrant

• Limited in terms of time
• Limited in terms of intrusion
• Holding him only for the purpose of obtaining a warrant

If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed

• (Narrow test)
• Magistrate must be informed of reasons the informant is credible (veracity/reliability/freshness)
• Magistrate must be informed of underlying circumstances relied on by person providing information (sttmnt detailing manner in which info was gathered; describes accused's activity in sufficient detail)

Magistrate must make a practical, common-sense determination whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of the persons supplying hearsay info that there is a fair probability that contraband or evidence of a crime will be found in a particular place

• If the triggering condition occurs, there is a fair probability that contraband or evidence will be found in a particular place AND
• There is PC to believe the triggering condition will occur

• Warrantless arrests
• Consent
• Plain View
• Exigent Circumstances
• Automobiles
• Search incident to arrest
• Inventory Searches

Police may arrest without warrant if there is probable cause to believe a felony has been committed

• Examine events leading up to arrest
• Decide whether the facts, viewed from the standpoint of the objectively reasonable police officer give rise to PC

Where there is a warrant to search a public place the warrant allows for entry into the area, but not to search the people unless than manifest PC bc PC must be particularized with respect to the person

People in cars are likely to be engaged in a common enterprise

Warrantless arrests for crimes committed in the presence of police are reasonable under constitution, and while states are free to regulate such arrests how they desire, state restrictions do not alter 4th amendment protection

Cops, peace officers, and private citizens may arrest for a misdemeanor or felony committed in their presence, as well as for a felony committed outside of their presence if there is reasonable grounds for making the arrest

On prosecutor to show reasonably and free given

Is the confession the product of an essentially free and unconstrained choice by its maker

In determining whether will was overbourne in consent for search and seizure must assess totality of circumstances - cannot turn on single criterion

• Characteristics of accused : education; age; intelligence; experience
• Details of the interrogation: length of detention; repeated and prolonged nature of questioning; use of physical punishment such as deprivation of food or sleep

• Common authority - mutual use of property by persons generally having joint access or control for most purposes
• Consent can come from anyone with common authority
• burden on state to establish common authority

Reasonable when no common authority if : (objective test) the facts available to the officer at the moment warrant a person of reasonable caution to believe that the consenting party had authority over the premises

When a co-occupant is physically present and refuses to permit entry, he prevails, and the warrantless search is unreasonable and invalid as to him

Consent to search is valid from one co-occupant if the other is absent

• If consent to search a vehicle, cop may open container inside vehicle if he reasonably believes the container contains the object of the search
• Test is objective reasonableness
• Scope of search is defined by its express object
• suspect may also limit his consent

In some circumstances, a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the 4th amendment

• Probable cause, not reasonable suspicion is required to seize items in plain view
• Taking action to view concealed parts of an apartment is a search

• Police lawfully made the intrusion or are in a position from which they can view a particular item
• (characteristic by not required - Horton v. CA) Police must discover incriminating evidence inadvertently
• Must be immediately apparent that the items may be evidence of a crime, contraband, or otherwise subject to seizure

objective reasonableness - would a reasonable police officer from an objective circumstance believe entrance is necessary

• Persons who are seriously injured or threat of injury - Brigham City v. Stuart
• Imminent destruction of evidence - Ker v. CA
• Fire - MI v. Tyler
• Assist injured, threatened individual - Mincey v. Arizona

must occur prior to or immediately contemporaneous with arrest

Arrest on the street itself cannot provide it's own exigent circumstances to justify a warrantless search of house