Criminal Procedure (Arcabascio 2005) Summary of Rules I. Standing a.

In order to contest the alleged illegal seizure, one must have a legitimate expectation of privacy in the place that was searched i. Absent that, does not have standing to challenge the seizure b. Right to raise standing is linked to the Possessory Interest i. Cant be 3rd party c. Overnight guests have a legitimate interest 4th Amend a. Right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, AND no warrants shall issue BUT upon probable cause supported by oath or affirmation and particularly describing the places to be searched and the person or things to be seized b. 4th Amend protects people, not places i. Reasonable expectation of privacy 1. Must have two prongs a. Person had exhibited a subjective expectation of privacy (Is there an actual subjective expectation of privacy?), AND b. The expectation of privacy is one that society is prepared to recognize as reasonable (Is it one that society is prepared to recognize as reasonable?) c. Officer must be in a place he may LAWFULLY be to make the observation BEFORE any 4th Amend test/analysis should be applied d. Seaches without warrants are PER SE unreasonable i. Warrants must be particular and based on probable cause, and signed off by a neutral and detached magistrate ii. Reasonable mistakes do not invalidate the warrant 1. EX: Two apartments on one floor of a building when police believed there to be only one e. Warrantless seizures are PER SE unreasonable f. 4th Amend rights extend within the curtilage of the home i. Cannot arrest someone in their home without a warrant 1. The home is still almost inviolate absent the probable cause to obtain a warrant ii. Person CAN be arrested for felony outside of their home without a warrant iii. 4th Amend does NOT prohibit warrantless arrests for a minor criminal offense, such as misdemeanor seatbelt violation punishable only by a fine g. Open Field Doctrine NO expectation of privacy i. Outside the curtilage of the home ii. Factors for determining curtilage 1. Proximity to the home 2. Existence of an enclosure around the area (like a fence) 3. Nature of the use of the area 4. Precautions taken to exclude others from the area h. Knock and Announce i. Unless there are exigent circumstances, police are required to knock and announce their presence before breaking into a home

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ii. How long they have to wait is based on totality of the circumstances (longer for larger properties) 1. Exigent circumstances a. Police have reasonable suspicion that knocking would be dangerous or futile, or that the investigation would be hindered through destruction of evidence i. Equipment that is not generally available to the public and obtained intimate information is a physical intrusion (Kyllo) j. No reasonable expectation of privacy in garbage left in such a manner that it is accessible to the public k. Probable Cause Establishment i. Rules 1. Probable cause to arrest exists where the facts and circumstances within the officers knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrest 2. Probable cause to search exists if the facts and circumstances within the officers knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an item subject to seizure is will be found in the place to be searched ii. Make sure information presented is not STALE l. Informants as basis for probable cause i. Test: Totality of the Circumstances 1. Fair probability that the items will be in the place alleged a. Based on basis of knowledge, reliability/credibility, and corroboration m. Pretextual traffic stops are acceptable including any subsequent visual searches Exceptions to Warrants a. SILA Search Incident to Lawful Arrest i. Limited to area within the immediate control of the suspect and suspect himself grabbable area 1. Remains with the person wingspan ii. MUST arrest to conduct search iii. MUST be contemporaneous with the arrest iv. In conjunction with vehicles 1. SILA includes all containers (including open/closed glove compartments, consoles, luggage, boxes, bags, clothing) ANYWHERE in the passenger compartment 2. Can be conducted even AFTER the suspect is removed from the vehicle and is standing several feet away 3. Search can be done at the station if the search WOULD have been allowed when the person was detained (does not have to be done roadside) b. Exigent Circumstances i. Absent exigent circumstances, the threshold of the house CANNOT be crossed without a warrant ii. Do not have time to go get a warrant 1. Societys need to invade ones home must outweight the persons right to privacy iii. Exigent circumstances CANNOT be caused by the police iv. EX: Hot pursuit or destruction of evidence

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Automobile Exceptions i. Extends exigent circumstances since a car can speed away & evidence will be lost ii. Requires Probable Cause iii. Vehicles are those that are readily mobile (EX: motorhome) iv. Can search the trunk IF officers have probable cause to believe contraband is present d. Inventory Searches i. If police have policy/procedure in place prior to conducting the search, they may search stuff/car/passenger compartment/trunk ii. There is NO standard necessary 1. They are only conducting an inventory to protect themselves and the suspects possessions e. Consent i. Consent to search must be voluntary 1. Voluntary is tested as was s will overborne look at Totality of the Circumstances (not coercive) a. Police do not have to tell person they have the right to refuse rd ii. 3 party consent 1. Valid IF a. Whether the person giving consent has authority to give consent to commonly shared area (mutual use), OR b. Do the police have a reasonable belief that the person consenting has mutual control over the location and can consent f. Plain View i. Something openly being viewed that is readily apparent that it is contraband 1. Cannot MOVE things to get a better look without probable cause g. Stops/Frisks (Terry-type stops) i. Stop (is a Seizure) 1. Need reasonable suspicion that criminal activity is afoot, based on articulable and specific facts a. A suspect fleeing raises hunches to reasonable suspicion (mere presence in high crime area does not) 2. An investigative stop must be temporary and last no longer than necessary to effectuate the purpose a. Transportation to police station is NOT allowed 3. Test: Whether a reasonable person would feel free to decline the officers request or otherwise terminate the encounter a. Not seized merely if police show their authority; need to have suspect submit to that authority ii. Frisk (is a Search) 1. Need reasonable suspicion that the person stopped is armed and presently dangerous 2. Dog sniffs are NOT searches 3. Officers can frisk a non-arrested suspect for their protection can ALSO frisk passenger compartment of vehicle IF a. Reasonable belief, based on specific and articulable facts, that suspect is dangerous and may gain immediate control of weapons if they are in the car, AND

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b. Police look only in those parts of the passenger compartment where weapons might be placed or hidden, including containers (but NOT the trunk) 4. If something is felt during the frisk and it is known NOT to be a weapon, it is OFF LIMITS iii. Can be done based on informants tip 1. Tip must be corroborated; quantity and quality of information provided h. Protective Sweeps i. Police can only look in places a person could hide ii. Can only last long enough to complete the arrest and depart the premises iii. Police need reasonable suspicion that there is an individual present who poses a danger to those on the arrest scene i. Checkpoints i. Valid ability to seize ii. Suspicionless Standard iii. Police must establish a valid primary purpose for the checkpoint j. Special Needs i. In highly regulated industries, goal is not crime prevention but public safety 1. EX: drug testing of train engineers ii. Schools can do random drug testing for athletes (for safety purposes) k. Higher Levels of Reasonableness i. Police cannot just shoot a fleeing suspect absent fear for themselves 1. Was unreasonable seizure ii. States can draw blood without a warrant under reasonable circumstances (EX: blood alcohol levels) iii. Can remove a bullet from a suspects body not unreasonable 5th Amend a. Confessions must be voluntary s will cannot be overborne by police action i. Voluntary confessions of mentally ill persons goes to reliability, not coercion b. Miranda rights must be given upon being placed in custody FOR interrogation purposes i. If no interrogation, then no need to give Miranda warnings ii. Can be questioned without Miranda warnings when public safety is at risk (EX: where is the gun you had? to prevent a child from finding it) c. Custody i. When a reasonable person is deprived of freedom in any significant way 1. A person going to the police station voluntarily would not be deemed to be in custody d. Interrogation i. Includes any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police show know are reasonably likely to elicit an incriminating response from the subject 1. Does not need evil intent ii. Cannot be coerced (even by another inmate) e. Waiver of Rights i. Must knowingly and voluntarily waive rights 1. Based on totality of the circumstances ii. Mere silence is NOT enough to waive rights

iii. Police need to provide a suspect with a flow of information to help him
calibrate his self-interest in deciding whether to speak or stand by his rights (EX: do not have to tell him that his attorney is on the way) f. Invocations i. Once a exercises his right to remain silent, he MAY later be interrogated on ANOTHER SUBJECT as long as reasonable time has passed AND a new warning is given ii. If invokes right to counsel, interrogation MUST stop until counsel is present, OR the initiates conversation with the police 1. Must unambiguously request counsel 2. If right to counsel was invoked as to FIRST crime, it also applies to SECOND (different from right to remain silent) 6th Amend a. Attaches at point proceedings begin against (adversarial) at all critical stages i. Usually begins at arraignment b. Right to be represented by court-appointed counsel in the event of indigence if possible jail time i. If there is NO possibility of prison term, then the accused has NO RIGHT to state furnished counsel c. Ineffectiveness of counsel standard But for the errors of the attorney, the outcome would have been different (Strickland) d. 6th Amend rights can be waived knowingly and voluntarily e. Police cannot interrogate once 6th Amend rights attach absent his counsel i. Police CAN use informants who ONLY LISTEN and do not ask questions f. Identification i. Entitled to counsel in a real physical lineup post-indictment 1. Not for show-ups on the street at the time of arrest a. Are inherently suggestive and raise Procedural Due Process Issues i. Reliability is the lynchpin based on totality of the circumstances ii. Suggestive based on: 1. Opportunity of witness to view at time of crime 2. Witness degree of attention 3. Accuracy of prior description of 4. Level of certainty demonstrated at confrontation 5. Time between crime and confrontation b. Should only be used in emergent situations 2. Not for photo arrays non-confrontational Exclusionary Rule a. Materials seized in violation of 4th Amend cannot be introduced into evidence b. Exceptions i. Independent Source 1. If police can establish probable cause completely independent of the illegality, then it is an independent source a. Material can then be re-allowed into evidence ii. Inevitable Discovery 1. If police can establish that, had the investigation continued on track without getting jumped over by the illegality, they would have

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eventually discovered the same evidence, then it is inevitable discovery a. Material can then be re-allowed into evidence iii. Good Faith Exception 1. After the search, the warrant was found to be unreasonably issued search is thus unreasonable 2. But, if officer reasonably relies upon it facially, the search will be considered valid a. TEST: (objective test) i. Magistrate had to find there is probable cause, AND ii. There really is no probable cause, AND iii. Reasonable officer would have relied upon the warrant 3. Exception will NOT apply IF a. Magistrate is not detached, OR b. Applying officer KNOWINGLY submitted false information to obtain the warrant iv. Computer Errors 1. If an officer acts in objectively reasonable reliance on an erroneous computer record and conducts an arrest, AND the court employee was responsible for the error, then any material discovered as a result would be admissible c. Fruit of the Poisonous Tree i. Evidence uncovered from an illegality (derivative evidence) is not allowed in (Wong Sun) ii. Attenuation 1. A break in the chain of fruit 2. Purges the taint from the derivative evidence 3. Can be broken by time and/or space Miranda Exclusionary Rule a. Confessions obtained in violation of Miranda are excluded against the during the s case in chief i. Can be used against for impeachment purposes IF takes the stand ii. CANNOT be used against any other witness b. If confession is obtained the first time unwarned but uncoerced, a second confession after Miranda warnings CAN be admissible c. Fruits of an unreasonable search or seizure CAN be used to contradict the veracity of a to prevent perjury