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Criminal Procedure
Stetson University School of Law
Flowers, Roberta K.


I. Introduction
–       4th Amendment deals with Search and Seizures
–       5th Amendment deals with Self Incrimination and due process
–       14th Amendment deals with Due Process and brought the 4th 5th and 6th amendments to the State Laws
–       To be eligible for a public defender, the accused must satisfy two requirements
o       Must be facing incarceration
o       Must be under certain income level
–       Indigent means you are under a certain income
–       All criminal defendants are not entitled to a trial by jury, it depends on if they are facing jail or not

II. 4th Amendment: Probable Cause
–       Questions to ask in determining if it is a 4th Amendment Problem
o       Is this an area protected by the 4th Amendment?
o       Has that protection been violated?
§         Is there a government actor?
§         Has the Government Actor performed a search?
§         Is there a reasonable expectation of privacy?
§         Is there a search warrant?
o       Was the Arrest Lawful?
§         Probable Cause before the arrest
·         Take a snapshot right before the arrest happens and look to see if there was probable cause before the arrest occurred. 
o       In determining probable cause, do not look at any evidence after the arrest no matter what
–       Probable Cause
o       Exists where the facts and circumstances within the arresting officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief an offense has been or is being committed
§         Quality: Trustworthy, where did the information come from
·         Police are very high quality
·         Named witnesses/victims have no quality problems
·         Named Informants with some prior reliability
·         Non-named face to face informants have some quality
·         Non-named anonymous Informants have little quality

§         Quantity: SOURCE. Is there enough information here

o       Third hand information to obtain a search warrant
§         Information must be specific
§         It cannot just be merely conclusionary statements
§         Can rely on hearsay
§         Hunches: has to be more than just a hunch…must articulate specific reasons why he made the arrest or the stop, etc.
§         Based on reasonable doubt and probabilities

o       Probable cause is the same for a magistrate as it is for a cop

o       When do you determine Probable Cause?
§         Immediately before the arrest. You ask what the cop knew immediately before he arrested the suspect.
§         Gates said that if you have an informant that can give you specific information and the police officers can corroborate on that information, then you have enough information to do the search. Future actions of 3rd parties ordinarily not easily predicted must be disclosed.

o       Race cannot be used for Probable Cause
§         If there was a description of the person, you can use race
§         Gang characteristics and certain characteristic to the gang, you can use race
§         You can use race for incongruities such as white kids driving a Mercedes in a black neighborhood where the white kids would not normally be….some courts allow this and some don’t

o       Flight can be used as a factor
§         Defense will look at each factor and say this does not prove anything wrong…the guy ran, so what? Does not mean he is guilty? But this could be used by prosecution for totality of circumstances
§         Just because somebody flees does not establish probable cause, but tied together with other things, it could show probable cause

o       Totality of Circumstances Test
§         Nature of the location (less weight), police officers experience (less weight) (years or arrests), behavior of defendant, transactions, number of events, identity of the actors, time of day, interaction of buyer and seller, flight, drug containers, statements by accused (prior to seizure), presence of weapon, dog sniff
§         Florida applies a totality of circumstances test
·         Corroboration by the police officers of specific details given to them by the informants can be enough for probable cause

o       Staleness: 
§         Must be able to say you have a quantity of information that evidence is still there
§         Must be based upon specific facts of that case

o       Quality of information in regards to informants
§         A victim can say she was raped and that is probable cause alone
§         Any information from a victim can be considered quality
§         Witnesses without any motivation, cop observations, don’t need much for trustworthiness

–       Graham: Brown paper bag ten feet away
–       Draper: Known informant informed police of person getting off the train wearing specific clothes and acting in specific demeanor
–       Cunha: Hot dog stand; A high crime area is not enough to show probable cause
–       Aguilar: Search warrant case. PC cannot be based upon conclusions or suspicions, must be based on facts
–       Gates: Flight to Florida drive back to Illinois; Future actions of 3rd parties ordinarily not easily predicted must be disclosed.

III. Exclusionary Rule
–       The exclusion of illegally seized evidence from a criminal trial
–       Must ask what is the evidence you want to exclude? 
o       Requires: Violation of Police

–       Purpose
o       To deter police conduct
o       Preserve Judicial Integrity
§         If the evidence was wrongly acquired, the plaintiff should not benefit from it

–       Balancing Test
o       Cost to society vs. Benefit to deterrent value (Criminals should not go free on a technicality)


NO evidence TAKEN, NO need to suppress                       GOOD FAITH of police officers
GRAND JURY: all evidence comes in                                PAROLE HEARING: no rights when on parole
CIVIL CASES                                                                     HABEAS CORPUS: writ to judge after conviction
IMPEACHMENT: ONLY for attacking credibility                       WITNESS testimony
STANDING: MUST violate YOUR constitutional rights

find narcotics and papers to show the owner of the home to prove that it is the person’s house you are searching that is responsible.

IV. Searches
–       4th amendment prohibits unreasonable searches
–       4th amendment protects people, not places. Includes not only tangible items but recording or oral statements as well
–       To judge if a search is reasonable, we must know when the search began
–       Ask
(1) What evidence are you keeping out?
(2) Was there a GOVERNMENT actor?
(3) Is there a SEARCH?
(4) If SEARCH, was it REASONABLE? (warrant OR PC required)
(5) Is there TAINTED evidence, FRUIT of the POISONOUS TREE?

–       POLICE officer (on or OFF duty)
o       on going police relationship
o       use of QUASI police methods
o       go beyond purely private purpose, they start acting like POLICE
–       GOVERNMENT endorses, encourage, OR participates in search
o       degree of involvement
o       purpose of government action
o       whether POLICE were just ‘standing’ by to promote safety

–       Private citizen’s (with no government connection) and turn in evidence
–       SECURITY guards

–       Katz Two Part Test to Determine if a Search and Seizure has occurred
o       The person must think he had an actual and reasonable right to an expectation of privacy
o       Society must also believe there was a reasonable right to an expectation of privacy

–       Legitimacy Test
o       Not whether the individual chooses to conceal the private activity but whether the government’s intrusion infringes upon the Personal and Societal values protected by the 4th amendment
o       When one is speaking to someone they consider a friend and the friend is bugged, it is not an illegal search because the one speaking should know that he might not be able to trust people in what he is discussing and he is not expecting privacy because he is speaking to a friend. It is not the police fault that the friend betrayed him.
§         Conversations between individuals will not have an expectation of privacy and the courts say in a brightline rule that you have no objective expectation of privacy when two friends or acquaintances, etc. converse with one another. This rule applies even if you are talking to an undercover police officer or government agent

–       Zone of Protection
o       House (Protected)