Criminal Procedure

Question 1

Fourth Amendment Right

Answer 1

• Under the 4th Amendment of the U.S. Constitution, a person is granted protection from unlawful government searches and seizures. Acts by private individuals are NOT protected by the 4th Amendment.
• In order to challenge a search or seizure, the challenging party MUST have standing. To have standing, the challenger must have a reasonable expectation of privacy regarding the item or place searched. Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess. The U.S. Supreme Court has extended this doctrine to permit an overnight guest to challenge a warrantless search in a home in which he was staying. o However, courts have held that people DO NOT have a reasonable expectation of privacy in the following: (1) a paint scrapping taken from one’s car; (2) a person’s bank account records; (3) anything visible from public airspace; (4) garbage left on the curb; (5) the sound of one’s voice; (6) odors coming from one’s property; (7) one’s handwriting; and (8) anything that can be seen in or across areas outside one’s home

Question 2

Lawful Arrests

Answer 2

• Under the 4th Amendment of the U.S. Constitution, a person has the right to be free from unlawful searches and seizures by the government. Seizure under the 4th Amendment includes arrests.
• For an arrest to be proper, the police officer MUST have probable cause. Probable cause arises when the circumstances give a police officer (1) reasonable suspicion to believe, (2) that a crime has occurred. If a police officer has probable cause to believe that a person has committed even a very minor criminal offense in his presence, he may arrest that person without violating the 4th Amendment. A police officer DOES NOT need firsthand knowledge to have probable cause; it may be based on the firsthand knowledge of another (i.e. an informant).
• If an arrest is conducted in a public place, probable cause is all that is required. However, a warrant is required if a police officer arrests someone in or at their home (unless exigent circumstances exist).

Question 3

Request for Information, Stop and Inquire, & Stop and Frisk

Answer 3

• Under the 4th Amendment of the U.S. Constitution, a person is granted protection from unlawful government searches and seizures. A seizure occurs when a reasonable person would have believed that he was not free to leave.
• The police may make a request for information anytime except on “whim or caprice.”
• A police officer may stop and inquire if the police officer (1) has reasonable articulable suspicion, (2) that criminal activity is afoot. A stop and inquire allows only a brief detention for questioning, after which the suspect must be released.
• A police officer may only stop and frisk a person if the police officer (1) has reasonable articulable suspicion, (2) that criminal activity is afoot, AND (3) that the person has a weapon. Under the plain feel doctrine, a police officer may only seize items he or she reasonably believes is contraband or a weapon during the frisk.
• Reasonable suspicion is defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand. Courts use a sliding scale based on the particular factual circumstances to determine whether reasonable suspicion was present

Question 4

Warrant Requirement

Answer 4

• The 4th Amendment of the U.S. Constitution provides that everyone should be free from unreasonable searches and seizures. Thus, a police officer will need a warrant to conduct a search and to seize items, unless a valid exception applies.
• In order for a search warrant to be valid: (1) there must have been probable cause (reliable information that it is likely that evidence of illegality will be found at a particular location); (2) the warrant must state with particularity the place to be searched and the items to be seized; AND (3) it must be issued by a neutral and detached magistrate.
• Evidence obtained without a valid warrant should be excluded unless it falls under the exceptions that permit a warrantless search and seizure

Question 5

Government Use of Sensory Enhancement Technology

Answer 5

• Whether government/police use of sensory enhancement technology constitutes a search depends on (1) the type of surveillance; (2) the type of information accessed; (3) the nature of the property; AND (4) the availability of the technology used.
• The use of sensory enhancement technology is deemed a search if (1) the technology is NOT in general public use; AND (2) the police obtain information about activities inside the home. The use of dogs to sniff out drugs is constitutional when used around an automobile, but is NOT constitutional when used around the home and surrounding property (the curtilage).

Question 6

Plain View Doctrine

Answer 6

• Under the Plain View Doctrine, the police may seize evidence without a warrant if (1) it is observed in plain view (with any of the five senses), (2) from a place the officer is lawfully permitted to be, AND (3) probable cause exists to believe that the items are evidence of a crime or contraband

Question 7

Exigent Circumstances

Answer 7

• Exigent circumstances exist if: (a) the evidence is evanescent (the evidence would dissipate or disappear in the time it would take to obtain a warrant); (b) it’s necessary to prevent the imminent destruction of evidence; (c) the police are in hot pursuit of a felon and the evidence is in plain view; OR (d) the emergency aid exception applies – to render emergency assistance to an injured person or to protect a person from imminent injury

Question 8

Search Incident to Arrest

Answer 8

• A police officer who has probable cause to make an arrest can make a warrantless search incident to a lawful arrest. In this regard, he can search not only the suspect’s person, but also areas within the suspect’s “wingspan”. If the suspect is arrested in an automobile, the “wingspan” includes the passenger’s compartment. In addition, pursuant to a lawful arrest, a police officer can make a warrantless search of an automobile (or any containers found in the car) if he has reason to believe it contains contraband

Question 9

Consent

Answer 9

• Consent is an exception to the warrant requirement if it is given freely, voluntarily, and intelligently. A third person with possessory rights of the property may consent to a search, but that person must have authority. If the police have reason to know that the person consenting might not have authority, and they continue the search, the search is unlawful.
• When two or more people share common authority over the residence or premises, any one of them may consent to a lawful search. However, a police officer may only search common areas of the residence and private areas of the person providing the consent. A warrantless search of private areas (i.e. bedrooms and locked areas) of persons that did not provide consent is generally unlawful

Question 10

Administrative & Inventory Searches

Answer 10

• Administrative searches (those that serve special needs distinct from the ordinary interest in law enforcement) DO NOT require a warrant.
• These include routine police inventory searches of a defendant’s car or personal effects during booking procedures. To be valid, an inventory search must be both: (1) reasonable; AND (2) conducted pursuant to established police agency procedures (that are designed to meet the legitimate objectives of the search while limiting the discretion of the officer in the field)

Question 11

Checkpoints

Answer 11

• The police may stop vehicles at checkpoints if the checkpoint: (1) is conducted in a nondiscriminatory manner (people are stopped at random); (2) for a purpose other than investigation of criminal activity; AND (3) is reasonable in scope.
• Routine sobriety checkpoints are NOT considered seizures under the 4th amendment, so long as they are administered in a nondiscretionary manner and do not detain individuals for an unreasonable period of time

Question 12

Automobile Exception

Answer 12

• The automobile exception allows a warrantless search of a car where the police have probable cause that either contraband OR evidence of a crime will be found in the vehicle. If there is probable cause, the police can search the entire car AND any packages, luggage, or containers that may reasonably contain the items for which there is probable cause.
• In order to search a vehicle after a traffic stop, the police officer would need to acquire probable cause prior to searching the vehicle. A police officer DOES NOT need firsthand knowledge to have probable cause; it may be based on the first-hand knowledge of another

Question 13

5th Amendment Privilege

Answer 13

• Under the 5th Amendment Privilege Against SelfIncrimination, a person has a right to not incriminate himself and MUST be given Miranda warnings during a custodial interrogation.
• Miranda warnings inform suspects that: (1) they have the right to remain silent; (2) anything they say can be used against them in court; (3) they have the right to talk to an attorney and have one present when they are questioned; AND (4) if they cannot afford an attorney, an attorney will be provided to them. • Under the Public Safety Exception, limited interrogation without Miranda warnings IS ALLOWED when police officers ask questions reasonably prompted by a concern for public safety OR the safety of the officer (i.e. to secure a weapon).
• Miranda rights attach when there is a custodial interrogation of a suspect. If a person is not subject to a custodial interrogation, no Miranda warnings need to be given. o A person is in custody when they reasonably believe they are not free to leave. o A person is subject to interrogation when the police knew or should have known that their conduct was likely to elicit an incriminating response.
• Miranda rights only protect statements or acts that are communicative or testimonial in nature. In order to be testimonial, an accused’s communication must (explicitly or implicitly) relate to a factual assertion or disclose information. Crying is NOT considered a testimonial communication. Additionally, Miranda rights DO NOT apply to any spontaneous statements made by a person.
• When invoking a Miranda right, it MUST be clear and unambiguous. For example, merely stating “I think I need a lawyer” or “maybe I should talk to a lawyer” is insufficient. The police have no obligation to stop questioning a suspect if the request is not clear and unambiguous.
o Once the right to remain silent is invoked, the police may later question the suspect if they first scrupulously honor his right to remain silent. Additionally, if the right is invoked, the defendant’s silence CANNOT be commented on by the prosecution or be used to incriminate him at trial. o Once the right to counsel is invoked, the police must stop questioning the suspect on ANY crime until the suspect has spoken with an attorney. However, a custodial interrogation may be reinitiated if: (1) the suspect has been re-advised of his Miranda rights; (2) has provided a knowing and voluntary waiver; AND (3) either (a) counsel is present, (b) the suspect initiates the communication, or (c) at least 14 days have passed since the suspect was released from custody. A suspect’s statements that clearly indicate a willingness to speak about matters relating to the investigation are treated as initiation of communication, but questions or comments relating to routine incidents of being in custody (“booking questions”) will not.
• A defendant/suspect’s statements made in violation of his Miranda rights are subject to the Exclusionary Rule

Question 14

Waiver of Miranda Rights

Answer 14

• A suspect may waive his Miranda rights. A valid waiver must be: (1) voluntary (it is the product of the defendant’s free will); AND (2) knowing and intelligent (the defendant must understand the nature of the right being waived and the consequences for waiving it)

Question 15

6th Amendment

Answer 15

• Under the 6th Amendment of the U.S. Constitution, the accused has the right to counsel in all criminal prosecutions that carry a substantial risk of jail time (more than 1 year), including at trial. The right to counsel attaches once formal adversarial judicial proceedings have been commenced (i.e. formal charge, preliminary hearing, indictment, or arraignment). o The 6th Amendment right to counsel is offensespecific. Thus, it only applies to the offenses the defendant has formally been charged with, and DOES NOT prevent the police from questioning the defendant about unrelated offenses without an attorney. Once a suspect’s right to counsel has attached, any attempts to deliberately elicit statements from him in the absence of his attorney violate the 6th Amendment. • The 6th Amendment also includes the right to have effective assistance of counsel, which includes the effective aid in the preparation and trial of the case. In order to prove ineffective assistance of counsel in violation of the Sixth Amendment, the defendant must show that: (1) his counsel’s performance was deficient; AND (2) but for the counsel’s errors, the result of the trial would have been different. If ineffective assistance of counsel is shown at trial, then the verdict must be reversed and the defendant is entitled to a new trial

Question 16

Waiver of 6th Amendment

Answer 16

• The 6th Amendment right to counsel may be waived. A valid waiver must be: (1) voluntary (it is the product of the defendant’s free will); AND (2) knowing and intelligent (the defendant must understand the nature of the right being waived and the consequences for waiving it)

Question 17

Right to Testify

Answer 17

• Under the 6th Amendment of the U.S. Constitution, a defendant has the right to testify on his own behalf

Question 18

Right to Self-Representation

Answer 18

• Under the 6th Amendment of the U.S. Constitution, a defendant has the right to right to represent himself at trial. HOWEVER, the right must be assumed knowingly AND intelligently. A judge may deny the right to selfrepresentation if the defendant: (a) lacks the competence to stand trial; OR (b) validly waives the right to counsel

Question 19

Right to Speedy Trial

Answer 19

• Under the 6th Amendment of the U.S. Constitution, a defendant has the right to a speedy trial. To determine whether this right was violated, a court will consider the following: (1) the reason for the delay; (2) whether the defendant objected to the delay; (3) the length of the delay; and (4) any prejudice the defendant suffered

Question 20

Line-Ups

Answer 20

• 14th Amendment Due Process Clause: The Due Process Clause of the 14th Amendment is violated when a line-up or identification is unnecessarily suggestive resulting in a substantial likelihood of misidentification. If there is a violation, the identification is inadmissible at trial. Under the Independent Source Rule, an in-court identification is admissible at trial (even if a line-up identification is tainted) when (1) the witness identified the defendant in-court based on the witness’ previous knowledge, (2) which is trustworthy, AND (3) was obtained by the witness in a previous transaction (usually during the crime)
• 6th Amendment Right to Counsel: Under the 6th Amendment, a person has a right to counsel after being formally charged with a crime that carries a substantial risk of jail time (more than 1 year), which includes a post-charge lineup. However, the attorney cannot dictate how the line-up proceeds, and is instead merely a spectator to observe any deficiencies or due process violations to be addressed at trial. A person DOES NOT have a 6th Amendment right to counsel at a pre-charge lineup because the right has not yet attached, as the person has not been formally charged with a crime. Likewise, there is no right to counsel for a photoidentification.
• Pre-Trial Identifications & the 5th Amendment: Courts have held that pre-trial identifications (lineups, photo identifications), blood tests, fingerprints, and voice identifications are NOT testimonial in nature and fall outside 5th Amendment protection. As such, a suspect in custody after an arrest CANNOT refuse participation in a lineup

Question 21

Catch-All

Answer 21

• The Due Process Clause of the 5th and 14th Amendments may be used to challenge anything that is so unfair that it shocks the conscience.

Question 22

Exclusionary Rule/Fruit of Poisonous Tree Doctrine

Answer 22

• Under the Exclusionary Rule, evidence obtained in violation of a defendant’s 4th, 5th, or 6th Amendment rights is inadmissible in a criminal case. Additionally, all derivative evidence is inadmissible under the fruit of the poisonous tree doctrine.
• However, the exclusionary rule DOES NOT apply if: (a) it is shown that the police had an independent source for the secondary evidence (where there is a source for discovery and seizure of the evidence that is distinct from the original illegal source); (b) the discovery of evidence would have been inevitable regardless of the illegality; (c) through the attenuation doctrine (which admits evidence where a defendant’s free will has been restored through the passage of time and/or intervening events); OR (d) the police relied in good faith on a defective search warrant.
• There are four exceptions where a police officer’s good faith reliance DOES NOT excuse an invalid warrant: (1) when the warrant is so lacking in particularity that no reasonable police officer could believe in good faith that the warrant is valid; (2) when the warrant is so lacking in probable cause that no reasonable police officer could have relied on it; (3) when the magistrate judge who issued the warrant was biased; (4) when the police officer who obtained the warrant lied on the warrant application. • The exclusionary rule DOES NOT apply to grand juries or civil proceedings.

Question 23

Miranda Violations

Answer 23

• Under the Exclusionary Rule, evidence obtained in violation of a defendant’s 5th Amendment Miranda rights is inadmissible in a criminal case.
• However, there are limitations on the Exclusionary Rule as applied to Miranda violations. o Limitation #1: Failure to give Miranda warnings DOES NOT require suppression of the physical evidence found because of the statements (as long as the statements are voluntary). o Limitation #2: Subsequent statements made after Miranda warnings are admissible, UNLESS a nonMirandized previous statement was obtained through the use of inherently coercive police tactics offensive to due process. o Limitation #3: Statements obtained in violation of a suspect’s Miranda rights are inadmissible in the Prosecution’s case-in-chief. BUT, they may be used to impeach a defendant on cross examination. However, such statements CANNOT be used to impeach the testimony of third-party witnesses.
• The fruit of the poisonous tree doctrine DOES NOT apply to Miranda violations.
• Coerced statements made by the suspect are never admissible for any purpose.

Question 24

Guilty Plea Requirements

Answer 24

• A guilty plea is only valid if: (1) it is voluntary and intelligent; AND (2) the judge informs the defendant of the following at the time the plea is entered: (i) the nature of the charge; (ii) the maximum possible sentence; (iii) the mandatory minimum sentence; (iv) that the defendant has the right to a jury trial, to confront witnesses, and to be protected against self-incrimination; and (v) that those rights will be waived.