CRIMINAL PROCEDURE

- Two important categories of government agents: (1) public paid police, on or off duty and (2) private citizens, only if they are acting at direction of police (i.e. private security guards)

• - Protected areas are (1) person, (2) house and curtilege, (3) papers, (4) and affects (i.e. purses)
• - Unprotected items: (1) Paint scrapings on car, (2) Account records held by bank, (3) Airspace, (4) Garbage, (5) Voice Exemplars, (6) Odors, mostly from car/luggage. (7) Handwriting, (8) Open fields.

• (1) ALWAYS have standing if you own premises searched or reside at premises (i.e. renter)
• (2) Overnight guests have standing as to the areas they can be expected to access
• (3) If you own property seized, standing only if reasonable expectation of privacy in the area from which property was seized
• (4) Passengers in cars only if they have a reasonable expectation of privacy in the item or area searched/seized.
• (5) NEVER standing for those on premises purely for business purposes

• (1) Is the warrant supported by probable cause and particularity?
• (2) If not, did police rely on the defective warrant in good faith (MBE only)?
• (3) Was the warrant properly executed by police?

• - Requires proof of a fair probability that contraband or evidence of crime will be found in area searched.
• - Hearsay is admissible for this purpose
• - Cops can rely on information obtained thru informant tip even if anonymous. Sufficiency rests on corroboration by police of enough of tipsters's information to make a common sense practical determination that probable cause exists.
• - In NY, gov't must establish (1) informant's basis of knowledge and (2) his veracity/reliability.

- The search warrant must specify the place to be searched and the items to be seized

• - Officers good faith overcomes constitutional defect with 4 exceptions
• (1) affidavit supporting warrant is so egregiously lacking in probable cause that no reasonable officer would have relied on it.
• (2) warrant is so facially deficient in particularity that officers cannot reasonably presume it to be valid.
• (3) affidavit relied upon by magistrate contains knowing or reckless falsehoods that are necessary to probable cause finding
• (4) magistrate who issued the warrant is biased in favor of prosecution.
• - Remember a warrant that fails for particularity can still be saved by good faith on MBE

• - First, in executing the warrant, officers are allowed to search only those areas and items authorized by the language of the warrant.
• - Second, the "knock and announce rule" requires they knock and announce their presence and purpose before forcibly entering the placed to be searched, unless the officer reasonably believes that doing so would be futile, dangerous, or would inhibit the investigation.

• - Evanescent evidence: Evidence that would dissipate or disapear in time it takes to get warrant
• - Hot Pursuit: Allows cops, when looking for suspect, to enter suspect's home or that of a 3rd party's home into which he has fled. Any evidence in plain view while searching for suspect fair game.

• - Arrest must be lawful
• - Justifications are (1) officer safety and, (2) the need to preserve evidence
• - Search must be contemporaneous in time and place w/arrest.
• - Scope: Wingspan, including body, clothing and containers w/in arrestee's immediate control w/o regard to the offense for which the arrest was made (in NY, container search on if cop thinks suspect is armed)
• - Scope for cars: Interior cabin of car, including closed (not locked) containers but NOT trunk. Once suspect secured, officer can search car only if reason to believe it contains evidence relating to the crime for which arrest was made (in NY, still no search of closed containers/bags)

• - Standard: Must be voluntary and intelligent. Do not need to inform of right to refuse consent
• - Apparent Authority: If cops gets consent from someone who can't give consent, still OK as long as he reasonably believed that consenting party had actual authority
• - Shared premises: Any and all sharers can consent to search of common areas. NOTE - if one disagrees, no search allowed

• - Standard: Cops need prob cause to believe contraband or evidence or crime will be found in car
• - Scope: Entire vehicle and they may open packages/luggage/other containers that may reasonably contain items for which there is prob cause to search
• - Traffic stop: Officer doesn't need prob cause when pulling car over provided he acquires it before initiating search)

• - 3 requirements: (1) lawful access to place from which item can be plainly seen, (2) lawful access to item itself, AND (3) criminality of item must be immediately apparent.
• - NY rule: Plain view seizure of obscene material requires prior judicial authorization

• - Most commonly occur before going to jail or when car is impounded
• - Constitutional if regs governing them are reasonable in scope and the search itself must comply w/those regs.

• (1) Random Drug Testing for railroad employees, customs agents and public school kids. Suspicionless drugs tests no permitted where their primary purpose is to gather criminal evidence for use by cops.
• (2) Gov't Employees' Desks and Files - For work-related misconduct
• (3) Student's Effects - To investigate violations of school rules (i.e. smoking)
• (4) Border Searches - Routine searches of persons and effects OK

• - Defined: Brief detention or seizure for the purpose of investigating suspicious conduct
• - An individual is seized when, based on a totality of the circumstances, a reasonable person would not feel free leave or decline cop's request to answer question. Consider (1) whether officer shows weapon, (2) officer's tone and demeanor, and (3) if person was told she could refuse consent.
• - When pursued, person only seized if submits to cop's authority by stopping or if cop physically restrains him (in NY, police pursuit is seizure in itself).
• - During traffic stop, driver and passengers considered seized (quick dog sniffs OK)

• - Defined: Pat down of body and outer clothing for weapons that is justified by cop's belief that suspect is armed and dangerous
• - Weapon can be seized. If contraband found, it can be seized as long as it was not manipulated. (in NY, cop can seize only something that feels like a weapon).
• - Car Frisk: During traffic stop, if cop believes suspect is dangerous, he can search passenger cabin, limited to those places where a weapon may be placed/hidden.

• - Reasonable suspicion, which is less than probable cause.
• - Applied to stops, requires specific and articulable facts that inform a cop's belief that criminal activity is present
• - Applied to frisks, requires specific and articulable facts that suggest suspect is armed and dangerous

• - Exclusionary Rule: Evidence, whether physical or testimonial, that is obtained in violation of a fed statutory or constitutional provision is inadmissible in ct against person whose rights were violated
• - Unconstitutionally obtained evidence excluded from pros case-in-chief but can be introduced to impeach D's testimony on cross
• - Not complying with "knock and announce" does not require suppression of evidence later discovered
• - Exclusionary rule does not apply to evidence erroneously obtained when executing a search warrant provided cop's mistake was reasonable.
• - Fruit of poisonous tree disallowed unless pros can show break in the casual link (independent source doctrine, inevitable discovery doctrine, attenuation doctrine/passage of time restores free will)

• - 4 requirements for valid wiretap. Screen Telephone Calls Carefully ("STCC")
• (1) Suspected persons: Warrant must name those to be overheard
• (2) Time: Must be for a strictly limited time period
• (3) Crime: Must be probable cause that a specific crime as been committed
• (4) Conversations: Warrant must describe w/particularity conversations that can be overheard

Unreliable Ear Doctrine and Assumption of Risk: If you speak to someone who has agreed to a wiretap, you have no 4th amendment claim bc/ you assume risk that other party will not keep conversation private.

• - Arrest occurs when police take someone into custody against her will for prosecution or interrogation. De facto arrest when cops compel someone to come to station for questioning or fingerprints
• - Probable cause needed to make arrest
• - Custodial arrest permitted for all offenses, even those punished by fine
• - No warrant to arrest in public, arrest warrant to arrest in home, arrest and search warrant to arrest in 3rd party home.
• - Common enterprise theory in traffic stops. If you can arrest one, you can arrest all.

- Confession excluded if involuntary, meaning the product of police coercion that overbears the suspect's will.

• - Express constitutional guarantee
• - Attaches when D is formally charged, NOT upon arrest
• - Offense specific, meaning it applies only to the charges filed against suspect. Provides no protection for counseled interrogation for other uncharged criminal activity.

• - Provided greater protection that 6th Amendment
• - Attaches not only at formal charging, but also whenever there is significant judicial activity before the filing on an accusatory instrument such that the D may benefit from the presence of counsel.
• - If D in custody for questioning on a charge and cops now he lawyered up on that charge, cannot question him about the charge or any other matter w/o atty present
• - Waiver must take place in front of atty

• - "right to remain silent, anything you say can and will be used against you in ct of law, right to an atty, if you cannot afford one, an atty will be appointed for you."
• - Suspect is in custody if atmosphere, viewed objectively, is characterized by police domination and coercion such that his freedom of action is limited in a significant way
• - Interrogation is any conduct the police knew or should have known was likely to elicit an incriminating response (does not apply when statements are made spontaneously). NOTE - if interrogation is prompted by immediate concern for public safety, Miranda unnecessary

• - "Knowing and Intelligent": Suspect must understand nature of the rights and consequences of abandoning those rights
• - Voluntary: Cannot be the product of police coercion
• - NY parent/child rule: If cops use deception or concealment to keep a parent away from a child who is being interrogated, child's waiver may be deemed invalid.
• - Burden or proof: On prosecution by preponderance of evidence, silence/shoulder shrugging no good.

- Cops must scrupulously honor a suspect's request to remain silent. At the very least, cops can't badger suspect into talking, detectives must wait a significant period of time before re-initiating questioning AND must first obtain a valid Miranda waiver

• - Once lawyered up, all interrogation must stop unless initiated by suspect
• - Request for counsel must be sufficiently clear to a reasonable officer
• - Not offense specific
• - Request for counsel expires 14 days after released from custody

• - Incriminating statements from Miranda violations can't be used in prosecution case-in-chief but can be used to impeach D on cross but not testimony of 3rd party witness
• - Miranda violation does not require suppression of physical fruits
• - If D found guilty when Miranda violation used, verdict will stand if gov't can show beyond a reasonable doubt that the error was harmless bc/D would have been convicted w/o the tainted evidence

• - 3 types: (1) line-up, (2) show-up/one-on-one confrontation btw/witness and suspect, (3) photo array
• - 2 substantive challenges: (1) Denial of right to counsel under 6th amendment, except for photo arrays and (2) violation of due process where procedure was so unnecessarily suggestive that there is substantial likelihood of misidentification.
• - If challenge successful, in ct id is excluded unless prosecution can show id based on observations other than line-up/show-up/photo array but showing (1) witnesses opportunity to view D at crime scene, (2) the certainty of the witness's ID, and (3) the specificity of description given to cops.

• - Issue indictments
• - Proceedings are NOT public
• - States are not required to use them for the charging process
• - In NY, indictments must establish all elements of offense and provide reasonable cause to believe that the accused committed the crime

• - Standard of proof: Prob cause both to bind D over for trial and detain him in jail before trial
• - Hearing to determine prob cause unnecessary if (1) grand jury has issued indictment, OR (2) magistrate has issued an arrest warrant.
• - Soon after arrest, suspect must be brought before magistrate who will (1) advise him of his rights, (2) set bail, (3) appoint counsel if necessary.
• - Bail is immediately appealable.

• - Evidentiary disclosure: Prosecutor must disclose all material exculpatory evidence
• - Right to unbiased judge means (1) no financial stake in outcome, (2) no actual malice towards D
• - Crim D's have right to jury trial when max authorized sentence exceeds six months
• - Fewest # of jurors allowed in criminal trial is 6 (in NY 12)
• - juror pool must represent cross-section of community
• - peremptory challenges are OK as long as not excluded for race or gender
• - D is entitled to effective assistance of counsel. Not effective if performance was deficient and but for the deficiency, the outcome of the trial would have been different (RARE)

• - For guilty plea to be valid, it must be voluntary and intelligent. Judge ensures this by stating on the record the nature of the charges and the consequences of the plea.
• - D can withdrawal plea after sentencing only if (1) plea is involuntary, (2) there is a jurisdictional defect, (3) D wins on claim of ineffective assistance of counsel, prosecutor fails to fulfill his part of the bargain

• - Cruel and unusual punishment disallows criminal penalties that are grossly disproportionate to the seriousness of the offense committed
• - A death penalty statutes violates 8th amendment if it creates an automatic category for the imposition of the death penalty
• - In deciding whether to impose death penalty, jurors can consider all potentially mitigating evidence
• - No death penalty for mentally retarded, presently insane, under 18 when offense occurred.

• - Attaches...
• (1) Jury trial, when jury is sworn
• (2) Bench trial, when 1st witness is sworn
• (3) Guilty plea, when ct accepts D's plea unconditionally
• - 2 offenses are not "same offense" if each contains an element the other does not
• - In NY charge D with all offense arising out of transaction unless (1) offenses have substantially different elements, (2) each offense contains an element not in the other and they vindicate different harms, (3) one is for criminal possession and the other is for use, OR (4) each offense involved harm to a different victim.
• - Can't prosecute for greater offense and then after for lesser offense and vice versa (only one offense has element not contained in the other)
• - DJ bars retrial in same sovereign only. State and Fed not same, different states not same.
• - 4 exceptions to DJ, (1) hung jury, (2) mistrial for manifest necessity, (3) successful appeal, (4) breach of plea by D

• - Anyone can assert in any proceeding where individual testifies under oath. (In NY, can't assert in grand jury proceeding)
• - Must be asserted at first opportunity or is forever waived
• - 3 ways to eliminate privilege: (1) grant of immunity, (2) D takes the stand, (3) SOF prevents D being hurt by criminal prosecution.