Crim Pro - Law of Arrests, Due Process, Confessions and the right to counsel Flashcards
When does an ARREST occur?
An ARREST occurs whenever the police take someone into (“CAPI”)
(i) CUSTODY.
(ii) AGAINST HER WILL
(iii) for PROSECUTION or
(iv) INTERROGATION
It is considered a “DE FACTO” arrest when the police compel someone to the police station for questioning or finger-printing
What standard of proof applies to ARRESTS?
PROBABLE CAUSE
For what offenses does the 4th amendment permit a CUSTODIAL ARREST?
ALL OFFENSES, even though punishable by a monetary fine only
When do you need an ARREST WARRANT?
Police officers do NOT need a warrant to arrest someone in a PUBLIC PLACE
(1) FELONIES - Officers may make a warrantless arrest when they have PROBABLE CAUSE to believe that arrestee has committed a felony
(2) MISDEMEANORS - Officers may make a warrantless arrest for any MISDEMEANOR committed in their PRESENCE
Absent an emergency, police officers need a warrant to arrest someone in his or her HOME
To arrest someone in the HOME OF A THIRD PARTY, police officers need an ARREST WARRANT AND a SEARCH WARRANT
“Common Enterprise” Theory
In a traffic stop, where a police officer discovers evidence of crime that suggests a common unlawful enterprise between the driver and his passenger(s), the officer may arrest ANY OR ALL OF THEM, based on the REASONABLE INFERENCE of shared dominion and control over the contraband
What are the Three FEDERAL Constitutional challenges that can be brought to exclude a CONFESSION?
(1) Fourteenth Amendment DUE PROCESS CLAUSE
(2) Sixth Amendment RIGHT TO COUNSEL
(3) Fifth Amendment MIRANDA DOCTRINE
** under NY Contitution** D can also challenge confession under NY’s “INDELIBLE RIGHT TO COUNSEL” which derives from the Sixth amendment of the STATE constitution
What is the standard for excluding Confession under the DUE PROCESS CLAUSE?
(“IPO”)
INVOLUNTARINESS, which means that the confession is the product of POLICE COERCION that OVERBEARS the suspect’s will
If confession was VOLUNTARY, it can be admitted under Due process
Right to Counsel under the 6th Amendment
6th AMENDMENT RIGHT TO COUNSEL
Express Constitutional Guarantee that ATTACHES when the defendant is FORMALLY CHARGED, NOT UPON ARREST!
It applies to all “critical stages” of the prosecution that take place after the filing of formal charges, including ARRAIGNMENTS, PROBABLE CAUSE HEARINGS and POLICE INTERROGATIONS
The Right is “Offense Specific” which means it applies ONLY to offenses with which the D has been FORMALLY CHARGED. It provides no protection for uncounseled interrogation for other UNCHARGED criminal activity
INCRIMINATING STATEMENTS obtained from D by law enforcement about charged offenses violates the 6th Amendment if those statements are
(i) DELIBERATELY ELICITED and
(ii) D DID NOT WAIVE - the D did not KNOWINGLY, INTELLIGENTLY, and VOLUNTARILY WAIVE his right to have his attorney present
-if want to question D about charged crime, must get a VALID WAIVER of his right to counsel
**NY’s INDELIBLE RIGHT TO COUNSEL -
when does it apply?
NY’s right to counsel, referred to as the “indelible” right to counsel, provides GREATER protection than the FEDERAL 6th amendment
Indelible right to counsel attaches
(1) NOT ONLY TO FORMAL CHARGING, but also whenever there is
(2) SIGNIFICANT JUDICIAL activity before filing an accusatory instrument such that the D may benefit from the presence of counsel (e.g. search warrant, arrest warrant)
So if D is taken into custody for questioning on a charge AND police are aware that he is represented by counsel ON THAT CHARGE, they may not question him about that charge OR any other matter without his attorney present
(additionally in NY, after invoking his right to counsel you cannot waive it without counsel present - see NY distinctions)
How can one WAIVE his INDELIBLE RIGHT TO COUNSEL in NY**
***NY INDELIBLE RIGHT TO COUNSEL
If the D is represented by Counsel, WAIVER of the indelible right to counsel must take place in the PRESENCE OF THE ATTORNEY
