Criminal Procedure Flashcards
GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE
Evidence obtained pursuant to an invalid warrant would not be excluded if a reasonably well-trained officer would have believed that the warrant was valid.
New York rejected the “Good Faith
Exception” in People v. Bigelow [488
N.E.2d 451 (N.Y. 1985)].
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PLAIN VIEW SEARCHES
In order for the plain view doctrine to
justify a warrantless seizure of property:
1. the police must be lawfully positioned; and
2. it must be immediately apparent
that the evidence is incriminating.
Law enforcement officers may properly seize an item in “plain view” without a warrant if: 1. they are lawfully in a position to observe the item; 2. they have lawful access to the item itself when they seize it; and 3. the incriminating character of the item is immediately apparent. New York law requires the finding of the evidence to be inadvertent. Police may be in the location legally, but if they are searching for contraband while in the location and that is their real purpose for having gained access to the location, the seizure will be invalid. Also note that the fact that evidence is clearly visible does not necessarily allow further intrusion without a warrant. For example, if police see marijuana on a table in a house through a window, they cannot simply enter and seize it; they must obtain a warrant, absent some other exception to the warrant requirement.
INFORMANTS
A warrant based on an informant’s tip
will be issued when probable cause is
established under the Illinois v. Gates
“totality of the circumstances” test.
New York continues to follow the Aguilar-Spinelli test, which requires a demonstration of veracity or reliability of the source of information and the basis of the undisclosed informant’s knowledge. Where probable cause cannot be established apart from the testimony of the arresting officer as to his communications with the informant, and the informant’s identity is an issue at the suppression hearing, New York allows the judge to conduct an in camera hearing to establish the existence of the informant and the basis for his information.
AUTOMOBILE SEARCHES
If a custodial arrest is affected while
the defendant is in a car, the police
may search the passenger compartment of the vehicle only if it is reasonable to believe that the defendant might access the vehicle at the time of the search or that the vehicle contains
evidence of the offense of arrest [Arizona v. Gant, 556 U.S. 332 (2009)].
A police officer may stop a motor vehicle on a public highway when the stop is premised upon a reasonable suspicion that the vehicle’s occupants had been, are then, or are about to be, engaged in conduct in violation of law. To achieve a level of reasonability, the police officer’s suspicion must be based upon “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion” [Terry v. Ohio, 392 U.S.1 (1968)]. Once a vehicle has been properly stopped, police may seize any contraband within plain view and may thereby obtain probable cause to search the trunk and other closed areas as well. A search of the passenger compartment and containers found therein is permissible once the police have probable cause to arrest the occupants of the car only if they have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape may be thwarted.
EXIGENT CIRCUMSTANCES A warrantless search and seizure may be permitted where evidence may be lost or destroyed before a warrant can be obtained.
New York law expands exigent circumstances to include a public safety exception. This exception requires that there be an emergency in which the police have grounds to believe (probable cause) that without their immediate action the life or property will be at risk. This allows the police to search for that which is causing the exigency and those who may be victims of the exigent circumstances.
STOP & FRISK
If, during the frisk for weapons, the officer feels items that reasonably feel like a weapon or contraband (e.g., rock cocaine), the officer may seize the items, even if they turn out to be something other than weapons or contraband.
The New York Court of Appeals has rejected the plain feel doctrine with reference to contraband and allows the officer to seize only those items found during the course of a frisk that are clearly weapons.
ARREST WITH A WARRANT
Generally any law enforcement officer
can arrest upon knowledge of an existing arrest warrant.
Under New York law, a warrant issued by a Superior Court judge sitting on a local criminal court, a district court, or the New York City Criminal Court may be used to arrest someone anywhere in the state of New York. However, if the warrant was issued by a city, town, or village court, the warrant can only be executed within that city, town, or village unless that warrant is sent to another city, town, or village where the accused might be and the local court endorses the warrant and authorizes it within that jurisdiction. A warrant of arrest issued by a city court, a town court or a village court may be executed: 1. in the county of issuance or in any adjoining county; or
2. anywhere else in the state upon the written endorsement thereon of a local criminal court of the county in which the arrest is to be made. When so endorsed, the warrant is deemed to be the process of the endorsing court as well as that of the issuing court.
WARRANTLESS ARREST
At common law, a police officer may only effect a warrantless arrest for a misdemeanor if the crime was committed in the officer’s presence and the crime amounts to a breach of the peace.
New York law allows a police officer to arrest a person without a warrant for any offense committed in his presence, or for any crime the officer has reasonable cause to believe the person committed.
CONFESSIONS
A statement or confession is inadmissible if it is involuntary, in violation of
the Fifth Amendment privilege against
self-incrimination, in violation of the
Sixth Amendment right to counsel, or
the fruit of an illegal arrest or search.
New York additionally requires that a defendant’s confession, if admissible, be edited to eliminate references to unrelated crimes, but if such material is not redacted, the court will examine its probative value vs. its prejudicial effect when determining error. A defendant’s pretrial silence generally cannot be used to impeach his trial testimony.
RIGHT TO COUNSEL
The right to counsel had generally been interpreted as arising only upon indictment. In Brewer v. Williams, the Court declared that “the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him—‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’”
Under New York law, the right to counsel attaches upon the commencement of the criminal action against a defendant (the filing of an accusatory instrument). An order to appear in a lineup constitutes the commencement of criminal proceedings for purposes of attachment of the right to counsel. If a defendant who is in police custody requests counsel and the request is ignored, any subsequent statements are inadmissible. Once the first accusatory document is filed or an attorney enters the picture on behalf of the defendant, the right to counsel attaches and cannot be waived except in the presence of the attorney. The right to counsel attaches even if the person in custody has not been charged with a crime.
Once a defendant in custody has invoked the right to counsel, the police may not question him on related or unrelated charges. The right to counsel is so fundamental that a defendant’s failure to raise it in at trial does not foreclose it being raised for the first time on appeal.
PRE-TRIAL LINE-UP
A lineup that is both suggestive and
unnecessary may be admissible if it
is reliable based on a totality of the
circumstances approach.
Where the pretrial identification procedure is even somewhat suggestive, all
evidence of the out-of-court identification will be barred even if the procedure was not so prejudicial as to bar
in-court identification of the defendant.
Identification testimony based on pretrial lineups is properly admitted unless it is shown that the procedure was unduly suggestive. Although the prosecution has the initial burden of establishing the reasonableness of the police conduct in a pretrial identification procedure, the defendant bears the ultimate burden of proving that the procedure was unduly suggestive. If the court determines that the lineup was unduly suggestive, the prosecutor may be able to demonstrate that a source independent of the pretrial identification procedure exists for the witness’s in-court identification, and thus allow an in-court identification. The court will conduct a Wade hearing to determine suggestiveness and make that determination based upon the totality of the circumstances.
DISCOVERY OBLIGATIONS OF DEFENDANT/DEFENSE
The prosecution has a limited right to compel some disclosure of information by the defendant. In some states, the defendant may be compelled to give the prosecution advance notice of an intent to present an alibi defense.
Under New York law, the defendant must file an alibi notice indicating the place or places where the defendant claims to have been at the time in question, and the names, residential addresses, places of employment, and employment addresses of every such alibi witness upon whom he intends to rely. A defendant must also file a written notice of his intention to present psychiatric evidence and provide a proffer of any psychiatric testimony he intends to present.
Additionally, in New York the unauthorized use of a computer is illegal and notice must be given if the defense to this crime will be authorization. The defense is also required to turn over any reports of physical or mental evaluations or examinations or any scientific tests or experiments and any photographs, drawings, tapes, or electronic records the defense plans to use.
SEPARATE SOVEREIGNS DOCTRINE
The double jeopardy prohibition does
not prevent dual prosecution by separate sovereigns. Therefore, a defendant may be prosecuted for the same
criminal conduct by a federal court and
then by a state court (or vice versa), or
by two separate state courts.
N.Y. Criminal Procedure Law Section
40.30 applies double jeopardy to prosecutions in separate sovereigns, making the
“separate sovereigns doctrine” inapplicable in New York. However, this does not
preclude another jurisdiction from prosecuting following a New York prosecution,
using the “separate sovereigns doctrine.”
SIZE OF JURY
In non-capital cases, a jury of as little
as six members has been upheld as
constitutional.
In New York, a felony trial requires
12 jurors to deliberate. Local criminal
courts have jurisdiction over all unindicted misdemeanors. In local criminal
courts, the information will be tried by
a six-person jury. However, in New
York City Criminal Court, the trial will
be without a jury if the authorized term
of imprisonment is six months or less.
UNANIMITY OF VERDICT
State criminal trials having 12-member
juries need not be unanimous; 10-2
and 9-3 verdicts have been found not
to violate the Sixth Amendment.
Under New York law, a unanimous
verdict of 12 jurors is required for all
indicted cases.
