Criminal Procedure

• Unreasonable search and seizure
• Requires warrants supported by probable cause 

• No denial of life, liberty or property without due process
• Privilege against self-incrimination 

In criminal trials, the defendant has a right to counsel

• All evidence seized in violation of the Fourth Amendment is inadmissible in a criminal proceeding
• Includes physical evidence and statements 

Not intended as a remedy of defendant's rights, intendended to deter police

• Defendant must personally be the victim of the police's unreasonable conduct
• Court must determine whether the person claiming violation has legitimate expectation of privacy in the invaded place 

All evidence directly or indirectly acquired as a result of an illegal arrest, search or seizure must also be excluded

• Evidence may still be admitted provided taint is dissapated  or purged by:
• Independent evidence;
• Inevitable discovery; or
• Intervening act of free will

Evidence obtained from a source independent of the original illegality

• Evidence that would have been discovered regardless of the illegality
• Occurs when there is a significant number of facts that have occured between the evidence 

Subsequent confession after release

• Preponderance of evidence, following conditions met:
• Substantial showing of false statements;
• Statements made intentionally, knowingly or in reckless disregard of the truth; and
• Probable cause could not have been made without the false statements   

• Compare benefit of deterrence with benefit of remedy
• Only excludes evidence from case-in-chief; not impeachment, grand jury, deportation or parole revocation

Evidence not excluded if a reasonably well-trained officer would have believed warrant was valid

• Whether police reliance from facially valid warrant;
• Whether police reliance of a valid statute; and
• Whether police reliance from court official, not police officer

• Police lie or mislead to attain warrant;
• Magistrate not neutral or detached; and
• No reasonable officer would believe warrant was valid

• Right to supression hearing outside of jury's presence;
• Testimony at suppression hearing may not be used against him at trial on substantive issue of guilt; and
• Government's Burden of Presuasion is preponderance of the evidence

• Reversible error unless error is harmless
• Gov't must prove beyond a reasonable doubt that error did not contribute to conviction

• Government; not private individuals
• Actors that are agents of federal, state or local government
• Private party acting at direction of government agent or pursuant to official policy  

• Generally, no warrant required for arrest in public place
• Warrant required for nonemergency arrest of individual in own home 

• In presence of law enforcement officer; not free to leave
• Effectively, deprived of freedom in significant way 

• Person in custody for commencing criminal action
• More than stop-and-frisk
• Not brief detention for questioning, even if no probable cause  

Unlawful arrest is not a defense to a subsequent conviction of crime charged

Generally, no warrant required, only probable cause

• Police observations
• Informant if specific details provided; and reliability of details and informant confirmed pre-arrest

• Arrest attempt outside home thwarted because suspect retreats from home
• Insufficient time to secure warrant because it would allow suspect to evade arrest or destroy evidence
• Officer in "hot pursuit" and with probable cause 

• Absent exigent circumstances, police must announce identity prior to entering home
• Exigent circumstances include reasonable suspicion that K&A would be dangerous, futile or inhibit investigation 

• Suspect poses risk of serious physical harm to officer or others; or
• Suspect committed crime involving infliction of harm if feasible warning was given 

• Requirement: Time of arrest
• Standard: Quantity of facts and circumstances w/in officer's knowledge that would allow reasonable person to conclude a crime was committed by arrestee
• Test: Evaluated by what officer knew at time of arrest

• Conditioned on an event occuring;
• If event occurs, there must be a fair probability that evidence will be found at particular location; and
• Probable cause that condition will occur  

• Based on articulable information;
• More than a mere hunch;
• Reasonable person standard; and
• Suspect has or is about to engage in illegal activity

• Totality of circumstances of each cause
• "Particularized and objective basis" for suspecting legal wrongdoing 

• Requirements: Can articulate reasonable suspicion that a suspect is armed and dangerous; No probable cause or warrant required
• Scope: Extends to car interior where suspect is sitting
• Standard: Object belief, not subjective; Common sense behaviors sufficient

• Defendant has standing (rights violated)
• Objects seized are not "held out to the public" 

• Ownership or possessory interest in premises
• Based on legitimate expectation of privacy; not mere ownership
• Standing not automatic when defendant possess illegal item   

• Passenger lacks standing to challange validity of search of automobile
• Car passenger has standing to challenge validity of stop 

• Overnight guests have standing
• Non overnight guests and commercial guests have no standing 

• Defendant must show legit exepectation of privace in items seized or premises searched
• Must be a fairly substantial nexus b/t defendant and place searched 

• Handwriting exemplars
• Voice exemplars
• Bank records
• Pen registers, including dialed phone numbers
• Private conversations, including eavesdropping

If gov't uses device not used by general public to explore private home, then search is presumptively unreasonable

Search without warrant presumptively invalid unless w/in explicit exception

• Issued by neutral/detached magistrate
• Adequate showing of probable cause
• Description with particularity of place to be searched and items to be seized   

• Testimony or affidavit containing facts of circumstance that are not out of date and still relevant; and
• Sufficient for a reasonbale person to conclude it is more probable than not that person/items will be found 

• Credible information;
• Reliable informant
• Police corroboration; and
• Declaration against interest   

• Only police, not private citizens, may execute warrant;
• Warrant must be executed promptly
• Knock and announce before forcible entry attempt  

Mere presence is insufficient to search person at search premises

• Searches incident to lawful arrest;
• Auto exception;
• Plain view;
• Consent;
• Searches pursuant to stop;
• Hot pursuit; or
• Exigent circumstances       

• Purpose: Protect officers and prevent evidence destruction
• Scope: Applies to person and area of immediate control (wingspan)
• In domicile: Cursory scan or protective sweep of domicile if reasonable suspicion of armed accomplice; else, warrantless search unreasonable 

• Passenger compartment only if it is reasonable to believe defendant can access and vehicle contains evidence of offense of arrest; 
• Seize and search later event without warrant
• Reasonable belief that containers have evidence or contraband; even if no probable cause to search entire car

• No random stop for checking license and registration without reasonable cause
• Can have traffic stop to check if stop is random and based on fix formula
• Border checks okay  

• Property is clearly visible in plain view
• Police are lawfully positioned; and
• Immediately apparant evidence is incriminating 

• Voluntariness based on totality of circumstances;
• Proper Scope; and
• If a third party, there is actual or apparent authority to consent 

• Evidence may be lost/destroyed before warrant can be obtained
• Reasonable body searches were loss/destruction of evidence is a concern
• Enter home if objective believe of occupant in serious harm
• No geeneral emergency exception
• Crime scene to seek other victims or remaining killer    

• Search for weapons and explosives permissible
• Passenger may avoid search by declining to board plane 

• Probable cause to show crime has been or is being committed;
• Warrant names suspects and describes particular conversation; and
• Wiretap only valid for brief period   

• Police subject suspect to coercive conduct sufficient to overcome will of suspect
• Subject, case by case basis; account for particular vulnerabilities and conditions 

• Voluntariness Approach: Due Process Clause of 5th and 14th Amendment
• Right to Counsel Approach: 6th Amendment right to counsel
• Miranda Standard: 5th Amendment privilege against self-incrimination
• Fruits of Illegal Conduct: 4th Amendment Exclusionary Rule   

• Age;
• Sex;
• Education; and
• Mental/physical health  

• Unambiguous request
• Offense specific, even if factual relationship between offenses
• Counsel present for all questioning until accused waives right
• Absent waiver; deliberate eliciting of statements violates right
• No secret recordings   

• Right to remain silent
• Anything he says can be used against him in court
• Right to presence of an attorney
• If he cannot afford; attorney will be provided   

• Only to interrogation
• Volunteered, spontaneous or unsolicited statements are not interrogation
• Focus on susceptibility of sustpect
• Only official interrogation

Only statements made during custodial interrogation where defendant is deprived of freedom

• When and where
• How long
• How many officers present
• What officers adn defendant said and did
• Presence of physical restraint or equivalent
• Whether questioned as suspect or witness     

• Age, DOB, height, weight and like
• Slurred responses in drunk-driving case
• Outweighed by immediate threat to public safety  

• Lineup, show-up, or photo ID inadmissible where ID is unnecessarily suggestive and likely to produce irreparable mistaken ID
• One-on-one IDs where both suggestive an unnecessary unless reliable based on totality of circumstances

• Opportunity to view criminal at scene;
• Witness's degree of attention;
• Accuracy of witness's description
• Degree of certainty of witness; and
• Time interval between crime and ID     

• Attaches at start of adversary proceedings
• After formal charges
• Inadmissible out-of-court ID made in violation of right to counsel does not bar in-court ID if prosecution clearly and convincingly shows subsequent ID from independent source  

• Grand Jury Indictment
• Information
• Booking
• Bail Hearing
• Preliminary Hearing
• Arraignment
• Motions
• Plea Bargaining
• Collateral Attacks on Guilty Pleas after Sentencing       

Federal felony cases

• Accused may not be present, confront witnesses or intorduce evidence
• No right to counsel
• No miranda warnings to potential defendants
•    

• Written accusation of charges filed in name of state by prosecutor
• Alternative to indictment
• Preliminary hearin general allowed prior to filing but not a constiutional right 

• Crime must be law at time of the offense, prohibits the following:
• Retroactive criminal statutes
• Increasing punishment after offense committed
• Removal of viable defenses available at time offense committed
• Apply procedural rules or evidence rules retroactively that makes it easier to convict
• Extending SOL when it hasd already expired  

• To give urine samples;
• Submit to fingerprints, photography, or measurements;
• Write, speak, or wear particular clothes;
• Assume a stance or walk; or
• Make a particular gesture for identification in court 
•    

• Use immunity ensures testimony will not be used against witness
• Transactional immunity is broad and assures witness he will not be prosecuted for any crime related to entire transaction
• Testimony regarding acts where SOL is not self-incriminating
• Defendant takes stand, no self-privilege from cross-ex of that testimony
• Does not protect volunteered information    

• Right to written notice of charges
• Right to counsel
• Right to confront and cross-ex
• Privilege against self-incrimination
• Right to have guilt proved beyond reasonable doubt; and
• Right to protection from double jeopardy

• Right to jury trial;
• Right to bail
• Right to public trial  

Limited to time reasonable necessary to accomplish removal from U.S.

• No right to unionize
• Mail may be censored
• Inmates have no right to provide legal service to one another
• Cannot sue private corporation running prison facilities to violation of constitutional rights
• Vistation rights can be regulated     

• Reasonable access to courts, counsel and press
• Medical care
• Notice to forfeiture of property  

• Bifurcated trial;
• Evidence of aggravating circumstances required
• Mandatory reviw of mitigatin factors by judge (not required in jury instructions)
• Death penalty cannot be imposed unless a verdict of guilt to a lesser-offense is permitted
• Review procedure required
• Must be over the age of 18th
• Must be mentally competent      

• Defendent must prove unlawful detention by preponderance of the evidnce
• Indigents have no right to counsel
• Writ must be timely and petitioner must be in custody (includes bail, probation or parole)
• All requirements met
• State may appeal granting of writ and defendant may be retried of same offense without violating double jeopardy    

• Petitioner must show detention violates U.S. constitution
• State petitioner must have followed all state procedural rules at trial or been denied relief;
• Available state remedies must be exhausted before federal court may consider petition
• Petitioner must show clear and convincing evidence of error before federal court will review factual findings of state court
• Petitioner that had full/fair opportunity to raise 4th amendment violation in state court will nto be permitted to see a writ in federal court