Criminal Procedure

  1. Fourth Amendment
    • Reasonableness clause. “The right of
    • the people to be secure in their persons, houses, papers, and effects, against
    • unreasonable searches and seizures, shall not be violated”

    • Warrant clause. “No Warrants
    • shall issue, but upon probable cause, supported by Oath or affirmation, and
    • particularly describing the place to be searched, and the persons or things to
    • be seized.”
  2. Reasonable Expectation of Privacy Test
    • Actual
    • expectation of privacy. A person must possess
    • an expectation of privacy in the place that police officers plan to search
    • - And –
    • Reasonable
    • expectation of privacy. A person must be able
    • to demonstrate that their privacy expectation is one society is prepared to
    • recognize as reasonable.
  3. Aguilar-Spinelli Test
    1. Basis of the Knowledge

    -- First hand observation

    -- Self verifying detail

    and Police


    2. Veracity
  4. The Gates Test
    “Totality of the Circumstances”
    • 1. Basis of the Knowledge
    • -- First hand observation
    • -- Self verifying detail
    • OR? Police
    • Corroboration
    • 2. Veracity
  5. The Knock And Announce Rule
    • Rule: Before entering a residence, police officers
    • must knock and announce their presence.
  6. Knock and Announce Rule Exceptions
    • Physical violence
    • Pursuit of escaped prisoners
    • Threat of the destruction of
    • evidence
    • Catch-all. “Other circumstances may make an unannounced
    • entry reasonable.”
  7. Arrests in Public
    • Police officers need probable cause. They don’t
    • need a warrant.
  8. In The Suspect’s Residence
    Ordinarily,police officers may enter a suspect’s residence lawfully only if they possess either a search warrant or an arrest warrant. (Payton v. New York)
  9. Arrests In A Third-Party’s Residence
    • To arrest a person in a third-party’s residence, police officers must possess a search warrant. An arrest warrant for the suspect is not adequate. (Steagald v.
    • United States)
  10. Misdeameanor Arrests
    The Fourth Amendment permits misdemeanor arrests, where such arrests are authorized by federal, state, or local laws.
  11. Search Incident To Arrest
    General Principle
    • --- Lawful
    • arrest. The search must accompany a lawful arrest.
    • --- Immediate
    • control. Officers only may search an area within a
    • suspect’s immediate control.
    • -- Substantially
    • contemporaneous. The search must be substantially
    • contemporaneous with the arrest.
  12. Search Incident to Arrest: Person
    United States v. Robison
  13. Outer Clothing. When a police officer lawfully arrests a suspect, the officer may conduct a warrantless search of the suspect’s outer clothing.
    Containers. The officer may seize and open any containers that the officer finds on the suspect’s person.
  14. Search Incident to Arrest
    Autos: Belton
    • Where an officer lawfully arrests anyone riding in a car, the officer may:
    • ---Search the passenger
    • compartment of the car.
    • ---Seize and open any
    • containers he finds.
    • ---Remove the driver and any
    • passengers from the car.
    • -- IMPORTANT NOTE: Arizona v. Gant imposes some limits search
    • incident to of cars.
  15. Search Incident to Arrest
    Autos: Thornton
    • The Belton rules apply as long as the
    • person lawfully arrested was a “recent occupant” of an automobile.
    • It does not matter whether the police officer first
    • encounters the suspect in the automobile, or outside of the automobile.
    • Like Belton, the Thornton decision may have been modified in Arizona v. Gant.
  16. Arizona v. Gant
    Two-Part Test
    • Warrantless searches incident to arrest of autos are lawful only if:
    • 1) The suspect is within reaching distance of the vehicle.
    • -- or
    • --
    • 2) It is reasonable to believe the vehicle
    • contains evidence of the offense of arrest.
  17. Search Incident To Arrest (Autos) After Gant: 2 Step Approach
    Step 1: Apply Belton and Thornton

    • Police may conduct a warrantless search incident to arrest of the passenger compartment of a car if:
    • 1) The defendant was in the
    • car at the time of a lawful arrest (Belton) OR
    • 2) The defendant a “recent occupant” of the car at the time of a lawful arrest (Thornton)

    • Step 2. Now add the additional Gant requirements in
    • addition to the
    • Belton/Thornton test:
    • 1) At the time of the arrest, the suspect is within reaching distance
    • of the vehicle.
    • --or
    • 2) It is reasonable to believe the vehicle contains evidence of the offense of arrest.
  18. Exigent Circumstances Test
    To come within this exception, officers must demonstrate that the delay resulting from a warrant application would pose an unusually serious risk to law enforcement interests.
  19. Common Exigent Circumstances Examples
    • Hot pursuit.
    • Imminent violence.
    • Destruction of evidence.
  20. The Automobile Exception
    In all or almost all situations, law enforcement officers do not need a warrant to search an automobile.
  21. Auto Exception: Probable Cause
    • Under the automobile exception, law enforcement officers may search an automobile only if the officers have probable cause.
    • NOTE. Officers often can use an exception other than the auto exception to search a car.
  22. Container Searches
    • Law enforcement officers may seize a container with probable cause.
    • Law enforcement officers cannot open the container without a warrant.
    • IMPORTANT NOTE: These rules apply only to
    • containers outside of cars. The rules that apply to
    • containers in cars are different.
  23. Containers In Cars: Probable Cause With Respect to the Car
    In these cases, police officers have probable cause to believe that evidence of crime is somewhere in the car, but they don’t know where it is (probable cause with respect to the car)
  24. Probable Cause With Respect To Car Rule
    In these cases, the auto exception authorizes police officers to search the entire car, and open any containers they find without a warrant
  25. Containers In Cars: Probable Cause With Respect to a
    In these cases, police officers only have probable cause that a particular container has evidence of a crime. Police have no reason to believe that evidence of a crime is located elsewhere in the car.

    This case held that a warrantless search of a green suitcase in a taxi cab violated the Fourth Amedment.

    In these cases, officers now may seize the container in the car, and may open the container without a warrant.

    However, the officers cannot search the rest of the car without a warrant.
  26. Differences: Probable Cause With Respect To Car -- And
    Probable car with respect to the car (Ross). Police officers may search the entire car, and open any containers they find without a warrant.

    Probable cause with respect to a container (Acevedo). Officers may seize the container in the car, and may open the container without a warrant. However, the officers cannot search the rest of the car without a warrant.
  27. Inventory Searches: Policies
    Protection of the owner’s property from theft.

    Protection of the police from the owner’s claims of “lost” property.

    Protection of the police from potential danger.
  28. Inventory Searches
    • A warrantless inventory search is lawful if it satisfied two requirements:
    • 1) Standard police practices: The inventory search must be part of routine
    • or standard procedures employed by a police department.

    2) Not a pretext: The police cannot conduct an inventory search for the sole purpose of a criminal investigation.
  29. Consent Searches
    Rule: Voluntary. For a lawful consent search, the defendant must voluntarily consent to the search. A person’s consent to search waivers their Fourth Amendment rights.
  30. Consent Need Not Be Knowing and
    In consent searches, whether a person understands that they have a right to consent is irrelevant.

    A person may voluntarily consent to a search, even if they unaware that they have a right to refuse.

    • There is no need to give warnings about a right to refuse, similar to Miranda warnings in confession
    • cases.
  31. Voluntariness: Totality of the Circumstances
    In consent cases, voluntariness is determined from the totality of the circumstances.

    Use of force or threatened use of force by police officers usually is inconsistent with voluntary threat.

    Trickery and deceit also may be inconsistent with voluntary consent, if police conduct “shocks the conscience.”
  32. Common Authority
    Common authority to authorize a consent search rests “on mutual use of the property by persons generally having joint access or control for most purpose.” United States v. Matlock
  33. Common Authority Factors
    The following factors that a person has common authority to permit a search:

    The right to enter, or the right of accesspremises

    The right to invite, or the right to permit an inspection

    The right to exclude, or the right to refuse an inspection
  34. Apparent Authority
    • Rule: Police officers may conduct a consent search
    • based on the permission of someone who does not possess common authority,
    • if the officers reasonably believed that the person possessed common authority.
  35. Consent Search: Veto Rights
    Anyone with common authority may veto a consent search.

    “A physically present inhabitant’s express refusal of consent is dispositive as to him, regardless of the consent of a fellow occupant.”
  36. Plain View Defined
    "Where police officers are lawfully in a place, the plain view exception allows the officers to seize apparently incriminating evidence.”
  37. 3 Requirements For A Lawful Plain View Search
    Prior Lawful Justification. A police officer must have a prior lawful justification that allowed the officer to be in a particular place.

    Evidence In Plain View. During the search, the officer seized evidence that was in plain view.

    Incriminating Nature Of The Evidence Immediately Apparent. The incriminating nature of the evidence must be immediately apparent.
  38. Inadvertence Not Required
    For the plain exception to apply, the incriminating nature of the evidence must have been immediately apparent.
  39. Terry v. Ohio: Reasonable Suspicion Standard
    Where police officers possess reasonable reasonable suspicion, the officers may conduct a limited stop and frisk of a suspect’s outer clothing.
  40. Terry v. Ohio: Establishing Reasonable Suspicion
    Reasonable suspicion is satisfied by a two-part test:

    1) Articulable fact. Some articulable, objective fact that justified the officer’s suspicion.

    - and –

    • 2) Training
    • and experience. Based on the officer’s training and
    • experience, they had reason to be suspicious.
  41. “Mere Questioning” (No Seizure)
    Mendenhall and Bostick
    Free to leave: If a person is free to leave, police officers have not engaged in a Fourth Amendment seizure, and the amendment does not apply. (Mendenhall)

    • Free to ignore: If a person is free to ignore the police officers, the officers have not engaged in a Fourth Amendment seizure, and the amendment does
    • not apply. (Bostick)
  42. Illinois v. Wardlow
    A suspect’s flight from police officers – by itself – does not rise to the level of reasonable suspicion.

    • However, a defendant’s presence in a high crime area,
    • together with his flight from police officers, can be enough to satisfy the Terry reasonable suspicion
    • standard.
  43. White and Place
    Police can stop a car based on “reasonable suspicion.” But they can’t ordinarily search the car with less than probable cause. (White)

    Police can briefly detain a suitcase with “reasonable suspicion. (Place)

    A canine sniff is not a search or seizure, and is not covered by the Fourth Amendment. (Place)
  44. Maryland v. Buie
    Police who enter a house to make an arrest may do a “protective sweep” of the house, even after making the arrest.

    Police must possess “specific and articulable facts that the house harbors a dangerous person."

    • The protective sweep “may extend only to a cursory inspection of those places where a person may be
    • found.”

    The sweep may last “no longer than it takes to complete the arrest and depart the premises.”
  45. Entrapment, Subjective Test:
    (Majority Rule)
    1. Government inducement. The defendant was induced by a governmentagent.

    2. No predisposition. The defendant was not predisposed to commit the crime.

    3. Intent to prosecute. The government induced the defendant with the intent to prosecute the defendant.
  46. Evidence Used to Prove Predisposition
    Non-hesitancy. The defendant did not hesitate to commit the crime.

    Knowledge of how to commit the crime.

    Statement and conduct.

    • Reputation in the community –
    • character evidence (otherwise inadmissible)
  47. Entrapment: Objective Test
    (Minority Rule)
    • A defendant can establish an entrapment defense if
    • government conduct would induce a reasonable person not otherwise predisposed to commit the crime to engage in criminal misconduct.

    • Difference from the subjective test – Here, the
    • predisposition (or lack of predisposition) of the defendant is irrelevant. The inquiry focuses on how government conduct would effect the “reasonable person.”
  48. Regulation Of Confessions
    Three Provisions
    Due Process Clause – 5th Amendment (federal gov’t) and 14th Amendment (states)

    Self Incrimination Clause – 5th Amendment

    Right to Counsel – 6th Amendment
  49. Due Process Clause
    No Involuntary Confessions
    The Due Process Clause prohibits “involuntary” or coerced confessions.
  50. Miranda v. Arizona
    Basic Principle
    The Supreme Court concluded that an interrogation of a suspect in custody is inherently coercive.

    The Miranda doctrine is an interpretation of the Self Incrimination Clause of the 5th Amendment.
  51. The Miranda Right
    Cut off questioning. Miranda gives a defendant the right, in certain circumstances, to cut off questioning.
  52. Miranda: Two Conditions
    • For Miranda rights to attach, the
    • following two conditions must have occurred:

    1. Custody. The suspect must be in custody.

    • 2. Interrogation. The
    • suspect must be subject to an interrogation (questioning).
  53. Miranda: Warnings
    Before interrogation of a suspect in custody, police officers must provide the followings warnings:

    1. Right to remain silent.

    • 2. Anything the suspect says
    • will be used against them.

    3. Right to attorney.

    • 4. If the suspect cannot
    • afford an attorney, the state will appoint an attorney.
  54. Public Safety Exception
    Police officers need not give Miranda warnings “in a situation posing a threat to the public safety.”

    • The public safety exception applies only to questions asked while police officers are “in the very act of
    • apprehending a suspect.”
  55. Custody
    • A person is taken in custody “if there is formal arrest or a restraint on freedom of movement of the degree
    • associated with a formal arrest. (Berkemer v.
    • McCarty)

    Absent unusual circumstances, a driver questioned at a routine traffic stop is not “in custody.” Police may question the drive without Miranda warnings. (Berkemer v.McCarty)
  56. Interrogation
    The term “interrogation” means either

    1) Express questioning


    • 2) Words or conduct
    • reasonably likely to elicit a response.
  57. Waivers Of Miranda Rights
    -- Express waiver. For example, the suspect could say: “I want to talk to you now.

    • -- An inferred waiver. Officers may
    • infer a waiver from the suspect’s statements and conduct. Example. An officer asks a question, and the suspect just keeps talking. North
    • Carolina v. Butler

    • -- Burden on the state. The state has the
    • burden of proving Miranda waiver.
  58. Resumption of Questioning:
    Right to Remain Silent
    • In Michigan v. Mosely, resumption of questioning
    • was permitted after invocation of the right to remain silent, where there was: 1) Two hour time gap in questioning; 2) New questioning was conducted by a different officer; 3) New questioning occurred at a different location; 4) New questioning occurred at a
    • different time.
  59. Resumption of Questioning:
    Right to An Attorney
    If a suspect invokes their right to counsel, police officers cannot resume questioning until counsel has been made available to the suspect. (Edwards v. Arizona)
  60. Sixth Amendment Right To Council
    • Under the Sixth Amendment right council, once judicial proceedings have been commenced against a
    • defendant, police officers cannot question the defendant unless the defendant’s attorney is present.

    Cut off questioning. Like the Miranda right, the Sixth Amendment right to council is the right to cut off questioning.
  61. Informing A Defendant of 6th Amendment
    Reading Miranda warnings is sufficient not only to inform the defendant of Miranda rights, but also to inform the defendant of their Sixth Amendment right to counsel.
  62. Miranda & Sixth Amendment
    The need for Miranda warnings is triggered by custody.

    The Sixth Amendment right to counsel is triggered by the initiation of judicial proceedings.

    Sixth Amendment rationale. Prior the initiation of judicial proceedings,the state is not in an adversary relationship with the suspect. After the initiation of judicial, the suspect needs counsel to protect their rights.
  63. Sixth Amendment: Initiation of Judicial Proceedings
    For Sixth Amendment purposes, judicial proceedings usually are initiated in one of two ways:

    1) Indictment by a grand jury.

    2) Arraignment.
  64. “Deliberate Elicitation” Prohibited
    After judicial proceedings have begun, the Sixth Amendment prohibits either:

    1) Express questioning


    • 2)
    • Deliberate elicitation of an incriminating response from the defendant.

    Note. “Deliberate elicitation” is defined differently than the Miranda interrogation.
  65. Sixth Amendment: Jailhouse Confessions
    • Where the inmate/informant was paid only if the defendant made incriminating confessions and initiated
    • conversations, there was a Sixth Amendment violation. United States v. Henry.

    Where the inmate informant did not initiate conversations, no Sixth Amendment violation occurred, even where the inmate said the defendant’s original denial of guilt “didn’t sound too good. (Kuhlmann v.Wilson.)
  66. School Searches
    A school search conducted by a school employee is justified by “reasonable grounds.”

    • Reasonable grounds is established by:
    • 1) Some articulable, objective fact that the
    • student possessed evidence of a crime, or a violation of a school rule and
    • 2) The school employee’s training and
    • experience.

    Reasonable in scope: Any search conducted by school employees must be reasonably related to the objectives of the search, and cannot be excessively intrusive.
  67. Auto Checkpoints: General Rules
    Auto checkpoints are permitted where they serve some general public safety purpose (border, sobriety, drivers license and registration).

    Checkpoints for the purpose of criminal investigation are not permissible (Indianapolis v. Edmond.

    Crime scene checkpoints are permissible (Lidster).
  68. Winston v. Lee – Bodily Intrusions
    Removing the bullet from Lee’s chest would violate the Fourth Amendment, even with a warrant.

    The surgery carried risk. The surgery was in the chest area, and was dangerous.

    The state had adequate evidence without the bullet – robbery victim Watkinson’s testimony.
  69. Blood Tests With Individualized Suspicion
    These tests are a bodily intrusion. Ordinarily, such tests require a warrant. Example: Testing blood DNA to link a suspect to a crime scene.

    • Blood tests to detect alcohol or drugs in a suspect’s
    • warrant require probable cause, but no warrant.
    • Drug/alcohol levels will decrease in the time it takes to a get warrant. Drug/alcohol blood tests fall
    • under the exigent circumstances exception. (Schmerber v.California)
  70. Random Drug Tests

    Special needs: Random drug tests are permissible only in circumstances where the state can show some special need.

    Not used for criminal prosecution: The random drug test results will not be used in a criminal prosecution.
  71. Identifications
    Identifications need regulation, because unreliable identifications can distort trial outcomes (Conversely, physical evidence challenged in Fourth Amendment cases is almost always reliable)

    However, with only a few exceptions, most identifications are admitted into evidence.
  72. Two Types Of Identifications
    • Court cases tend to focus on out-of-court identifications. These identifications include identifications at a line-up or a photo array. Such
    • identifications are powerful evidence.

    However, in court identifications are also relevant. Here, the witness points to the defendant in court, and says something like: “I saw him (or her) do it.”
  73. Identifications And Constitutional Provisions
    1) Privilege Against Self Incrimination (5th Amendment)

    • 2) Right To Due Process Of Law (5th
    • Amendment and 14th Amendment)

    • 3) Right to Counsel (6th
    • Amendment)
  74. Identifications: Privilege Against Self Incrimination
    • The Fifth Amendment Self Incrimination Clause protects against a defendant only against testimonial
    • incrimination. The clause does not apply to identification procedures, such as line-ups and photo arrays. The clause also does not apply to physical evidence – such as fingerprints, hair samples, blood tests, etc.
  75. Identifications: Sixth Amendment Right To Counsel: Two-Part Test
    The Sixth Amendment provides that a defendant has the right of access to counsel if:

    • 1) The state has initiated criminal proceedings
    • against a suspect.

    2) Proceedings are at a “critical stage.”
  76. Sixth Amendment: What Constitutes a “Critical Stage”
    Courts have recognized only two events as a “critical stage”

    1) Interrogations -- and –

    2) Line-ups

    Identifications at a photo array are not considered a critical stage. (United States v. Ash)
  77. Identifications And The Due Process Clause
    Identifications will violate the Due Process Clause if the identification process was both:

    1) Unnecessarily suggestive – and –

    • 2) Likely to result in a mistaken
    • identification.
  78. Identifications Likely to Result In A Mistaken Identification
    • Courts determine whether an identification procedure was likely to result in a mistaken identification based on a totality of the circumstances.
    • Courts often focus on the following factors: 1) Opportunity to view; 2) Degree of attention; 3) Accuracy of prior description; 4) Certainty; 5) Promptness.
  79. Exclusionary Rule
    • The Rule. Evidence obtained in violation of a
    • constitutional provision cannot be introduced against the defendant at trial.

    Controversial. In an effort to deter police misconduct, the exclusionary rule prevents jury consideration of much probative evidence.
  80. Lack Of Standing
    For Fourth Amendment standing, a defendant must have a legitimate expectation of privacy in the place searched or the items to be seized.

    Usually, a defendant must have a property or possessory interest in the place searched or the items seized.
  81. Independent Source Rule:
    An Exclusionary Rule Exception
    Two-part test:

    1) The decision to seek a warrant was not prompted by what was seen during the initial, illegal search and

    2) Information obtained during the illegal entry was not presented to the magistrate, and did not effect the decision to issue a warrant.
  82. Inevitable Discovery Rule
  83. Rule. The government may introduce illegally
    obtained evidence at a defendant’s trial, if the government inevitably would have discovered the evidence by lawful means.
  84. Inevitable Discovery: Application
    The government must show by a preponderance of the evidence that illegally obtained evidence would have been discovered by lawful means.

    • To date, the Supreme Court has applied the inevitable
    • discovery rule only in cases involving physical evidence, not testimonial evidence.

    If the government inevitably would have discovered the evidence lawfully, any bad faith on the part of police officers is irrelevant.
  85. Fruit of the Poisonous Tree
    Under the fruit of the poisonous tree doctrine, all evidence that results from illegal police conduct must be excluded.
  86. Attenuation Doctrine
    • The fruit of the poisonous tree doctrine does not apply when the causal connection between unlawful
    • government conduct and unlawfully obtained evidence “has become so attenuated to dissipate the taint.”
  87. Bad Arrest: Confession Admissible
    Factors to consider:

    • 1) Temporal proximity of bad arrest and
    • confession;

    2) Presence of intervening circumstances;

    3) Purpose and flagrancy of official misconduct;

    • 4) Whether Miranda warnings preceded the
    • confession.
  88. Knock & Announce Rule Exception
    Where police violate the knock and announce rule, the exclusionary rule does not apply.

    • Reasons: 1) Limited privacy violation; 2) Knock and announce rule does not always
    • apply; 3) Police officers who wait to enter may be in danger; 4) Civil suits will deter violations.

    Civil suits: Will victims of knock and announce violations really bring civil suits?
  89. The Good Faith Exception
    • Rule. Where a law enforcement officer’s reliance on
    • an invalid warrant is objectively reasonable and in good faith, evidence obtained pursuant to the warrant shall not be excluded at a trial.
  90. Good Faith Exception Inapplicable
    The good faith exception does not apply, and the evidence is inadmissible where:

    1. The issuing magistrate has “wholly abandoned his judicial role.”

    2. The warrant’s lack of probable cause makes reliance unreasonable.

    3. The warrant has obvious facial defects.

    4. Officers committed fraud to obtain the warrant.
  91. Impeachment Exception
    If a defendant testifies, the prosecution may use statements obtained in violation of Miranda to impeach the defendant’s credibility. (Harris v. New York)

    The state also may us illegally obtained physical evidence to impeach a defendant’s credibility. (US v. Havens)

    • Illegally obtained evidence may be used on cross-examination, as long as the cross-examination was
    • “reasonably suggested by the scope of direct examination.”
  92. Impeachment Exception: Witneses Other Than The Defendant
    Police may use unlawfully obtained evidence to impeach a defendant, but not other witnesses.

    1) Threat of a perjury prosecution will keep other witnesses honest.

    2) Possible inability to present a defense.

    3) Would prevent the jury from hearing probative evidence.

    4) Would weaken the deterrent effect of the exclusionary rule.
Card Set
Criminal Procedure
Fourth Amendments