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Criminal Procedure
Stetson University School of Law
McCoun, Thomas Bullitt

Criminal Procedure

Talk about facts, issue, holding, rationale.

Rights we study in this course are individual rights, they are intended to restrict what the government can do to individuals

McCoun presents it from the defense perspective

Chapter 1: Probable Cause
– 4th Amendment: The 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 place to be searched, and the person or things to be seized.

4th Amendment doesn’t require a warrant for there to be search and seizure, but that if a warrant is issued certain requirements are met
it allows for searches and seizures that are not warrant-based
when talking about seizure, that term can apply to taking of evidence and the arrest of an individual (arrest is seizure of person)

14th Amendment Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws…

United States v. Draper(1959)
Facts: Marsh (federal narcotic agent w/ 29 years experience, Denver)
Hereford (special employee of Bureau of Narcotics, 6 months). Hereford gave Marsh information, and was paid small sum of money, information always accurate and reliable.
– Hereford told Marsh that Draper had taken up abode in Denver and was peddling narcotics to several addicts.
– 4 days later, Hereford told Marsh that Draper had gone to Chicago by train on Sept. 6, and he was going to bring back 3 ounces of heroin and return on either Sept. 8 or 9.
– Gave Marsh a physical description, what he would be wearing, carrying a tan zipper bag, and habitually walked fast.
– Sept. 8, police officer went to train station and kept watch, but didn’t see anyone
– Repeated process on Sept. 9; saw person matching description identically. They arrested Draper. They searched him and found two envelopes containing heroine and syringe.
– Hereford died four days after the arrest.
– Draper convicted of knowingly concealing and transporting narcotics. Conviction based on use in evidence of two envelopes containing 865 grams of heroin and a hypodermic syringe that had been taken from his person, after arrest by the arresting officer.
– Before trial, he moved to suppress evidence as having been secured through an unlawful search and seizure.
– arresting officer had probable cause to arrest petitioner without warrant and subsequent search and seizure were therefore incident to lawful arrest.

difference in what is required to prove guilt at criminal trial and what is required to prove probable cause for arrest (hearsay may be considered in probable cause equation, b/c not the same requirement as for admissibility- there are no rules of evidence in pre-trial)

considerations that require use to exclude hearsay in criminal trial don’t come into play when determining probable cause

no need to prove guilt in order to establish probable cause
even though the information could be hearsay, because it came from one paid to do that and it was normally accurate, Marsh would have been derelict in his duties if he hadn’t followed up on the information
Because Marsh personally verified all information given to him by Hereford, Marsh had reasonable grounds to believe that the remaining unverified information (3 ounces) would be true
probable cause deals with probabilities- they aren’t technical, but are factual and practical considerations of everyday life on which reasonable and prudent men act
Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which they had reasonable 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- Brinegar v. United States

What facts do cops know?
What circumstances do cops know?
What other information do they have that is reasonably trustworthy?
probable cause is amount of information that police officer has that causes him to believe he can make an arrest or conduct a search (measure of amount of information- sets a ceiling below which police can’t go if they want to arrest or search someone)

Procedural remedy that most defendants will use in a case where they think they have a bad arrest/search is to file motion to suppress
rationale is important b/c it sets out 2 aspects that reviewing courts look at

reliable source of information, who provided specific information about future conduct
which was entirely corroborated by police officer – everything he told police turned out to be correct, and police corroborated it- therefore reasonable person in the situation would believe that defendant was carrying heroine

Aguilar v. Texas(1964)
Facts: 2 Houston police officers applied for a warrant to search for narcotics in petitioner’s home. Officers submitted affidavit (p. 10). The search warrant was issued. Executing warrant along with federal officers, announced at door that they were police w/ warrant. Heard commotion in house, officers forced way in and seized Aguilar in act of attempting to dispose of a packet of narcotics. At trial, attorney objected to introduction of evidence obtained as result of search warrant- but evidence was admitted.

Holding: Search warrant should not have been issued b/c affidavit did not provide a sufficient basis for finding of probable cause and that the evidence obtained as a result was inadmissible

Ker v. CA: 4th Amendment proscriptions are enforced against the State through 14th Amendment, and standards of reasonableness is same under 4th and 14th.
Evaluation of constitutionality of search warrant

informed and deliberate determinations of magistrates empowered to issue warrants are to be preferred over the hurried action of officers who may happen to make arrests
when search is based on magistrate’s, rather than police officer’s, determination of probable cause, reviewing court will accept evidence of less judicially competent or persuasive character than it would have if officer acted w/o warrant and will sustain judicial determination so long as there was substantial basis for magistrate to conclude that narcotics were probable present

the affidavit doesn’t contain personal knowledge b/c affiant spoke with confidential informant
magistrate couldn’t judge for himself the persuasiveness of facts relied on to show probable cause
although an affidavit may be based on hearsay and need not reflect the direct personal observation of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some underlying circumstances from which the officer concluded that the informant was credible or the information reliable (credibility/reliability)
in order to grant search warrant, judge must determine all facts to be entirely true
must provide some amount of facts about underlying circumstances that informant is relying upon to form conclusion so judge can weigh facts
no facts or circumstances provided to judge to allow him to evaluate for himself underlying circumstances- nor

said this is nonsense
p. 23 – if informant is known for particular unusual reliability of his predictions of certain types of criminal activities in a locality, his failure should not serve as an absolute bar to finding probable cause based on his tips
TODAY we use totality of circumstances approach in determining if probable cause exists

Cunha v. Superior Court (CA Supreme Court 1970)
Facts: 4:25 pm on 7/23/69, plain clothed police officers took seats at window of hot dog stand. They were observing pedestrians who walked by. One officer had participated in 15-20 narcotic arrests in 3 months, the other in 30-40 arrests in 6 months. In ½ hour, they observed 10-20 people walk by the window, and they suspected 4-6 of these might possibly be dealing or something like that- but disregarded soon after they passed from the officer’s view. Officer observed Cunha and companion walk up sidewalk talking, and looking around, looking back and to the side as to see if anyone was watching. Officers watched them pass, and observed Cunha and companion walk 40-50 feet east of hot dog stand and stop. View somewhat obscured by chain-link fence, officer saw suspects continue to look around, and observed them reach into pant’s pocket. Companion extracted an object (couldn’t see what he pulled out) and petitioner extracted what appeared to be money. Two placed hands together in apparent exchange. Officers left hot dog stand and approached the suspects. Asked “were you two dealing?” After receiving a negative reply, order suspects to return to site of the suspected transaction and placed them under arrest to determine whether or not a narcotic transaction had been made. Officer reached into Cunha’s pocket and pulled out balloons (subsequently determined to contain heroin, shoved balloons back in pocket and handcuffed him. Other officer found $110 on companion. Searches were begun 15-20 seconds after officers identified themselves.
Issue: Did police officers lack probable cause to search Cunha? Yes, writ of prohibition issued

circumstances short of probable cause may justify stopping a pedestrian for further investigation, but before an officer detains an individual for questioning by means of physical force or a show of authority, he must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant that intrusion
pat down is an additional intrusion, and can be justified only by speculation and articulation of facts supporting a reasonable suspicion that the individual detained is armed, further intrusion into person’s clothes requires similar showing of reasonable belief
if as a result of detention or otherwise, the officer becomes aware of circumstances which provide probable cause for arrest, he may arrest the suspect and conduct and an incident search for weapons and destructible evidence
officers didn’t detain but immediately arrested- no indication that officers believed suspects to be armed- didn’t conduct a pat-down but immediately went into pockets
search may not be upheld as incident to an arrest