Criminal Procedure Outline

Criminal Procedure

Braverman

Spring 2012

Chapter 1- The Border of Criminal Procedure

-Criminal Procedure governs the conduct of police, prosecutors, defense attorneys, and courts in the way in which they investigate, prosecute, and sentence citizens.

-Specifically in regards to the police, criminal procedure governs much of their conduct but not all of it.

-Often the routine interactions (minus suspicion of criminal activity) between police and citizens are not regulated by law

· There’s a huge imbalance between the state and the Δ, so criminal procedure offers more protection for Δs based on their constitutional rights.

· First Questions to ask:

o Was it a search? > Katz did the person have a reasonable expectation of privacy? Was it one society will recognize?

o Was it a stop > did the person feel free to leave?

· In each scenario ask:

o Is it a search or a seizure?

o What level justification is necessary?

o At what point must the government give justification?

o Do you need a warrant?

3 Roles of Police

1) Community Caretaker

2) Enforcers of civility

3) Preventative enforcement

Police as Community Caretaker -Police devote ~ 70% of their time to “non-criminal enforcement” matters

-”Community Caretaker” Functions

-”Any lawful acts that are inherent in the duty of the peace officer to serve and protect the public” (Oregon Statute § 133.033)

-This gives the police the right to enter premises or stop traffic to prevent harm to person or property, render aid/ treat injured or ill persons, and/or locate missing persons.

-To serve and protect

State v Michael Dube (1995)

Issue – when does the role as a community caretaker end

-Dube appeals conviction of endangering welfare of a child

-Custodian enters apt with police to do emergency maintenance- fix leak/sewage

-Apt was a mess – feces/waste/dirt all around

-Custodian fixes leak then leaves

-*Initial entry into apt was OK, (Community Caretaker)

-BUT** CONTINUED PRSENECE of cops in the apt (after repair) was NOT OK

– cops brought in human services case worker with a camera for pics of the apt.

-Police needed a warrant to do further investigation! Even though waste/dirt was in plain view

-Needed higher level of justification to REMAIN in apt.

-Ds conviction was vacated, bc community caretaker function was DONE after leak fixed

-Personal places ex) house = highly protected

HOLDING: In the absence of a search warrant, there must be a special justification for entering premises

Here, special justification was to assist custodian in the repairs,

BUT Once that special justification ended, the default requirement (a warrant) returned.

State v Michael Lovegren (2002)

Defendant (Lovegren) appeals his conviction for driving under the influence.

-At 3 AM, while on patrol, Officer noticed a car pulled over on side of the highway with the motor still running

-Cop approached the car, noticed Defendant in the driver’s seat asleep.

-Cop knocked on window, D doesn’t respond, so cop opens car door

-D openly states he was drinking, had bloodshot eyes, smelled like alc

-Cop gives D sobriety tests, which he failed he also failed breathalyzer

-D argues cop did not have a particularized suspicion…[that there was criminal activity]

HOLDING: Cop did not need particularized suspicion of criminal activity

-Cop was acting in his capacity as a community caretaker by checking on Ds welfare, it was cops duty to check “officer has a duty to investigate situations in which a citizen may be in peril or need some type of assistance”

COURT GIVES 3 PART TEST to determine if cops actions are justified

1) If there are “objective, specific, and articulable facts” that would lead an experienced officer to believe that a citizen requires aid, then the officer has a right to stop and investigate

2) If in need of aid, the officer may take appropriate action to help or mitigate the danger

3) Once the danger is mitigated or help is no longer needed, any further action by the officer would implicate the 4th Amendment’s protection against unlawful seizures

Here -Court ruled cop was justified under this three part test.

After officer used community caretaker role to check on D the suspicion of Ds drinking SHIFTED cops ROLE to that of CRIMINAL ENFORCEMENT

Note- Brigham City v Stuart, (2006), upheld a warrantless entry into a home by the police because the police possessed, “an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” This falls under the community caretaking function.

Note- State v Carlile (1992) – Upheld seizure of 2 narcotic devices from residence, despite the fact that orgiginally the police were performing a non-criminal enforcement role as domestic counselors.

Police Enforcement of Civility

State v Stanley Janisczak (1990)

– Police attempt to arrest a motorist (not Defendant), for driving with a suspended license

-Guy refuses to exit vehicle, more cops get called, guy gets pulled out of car, and cuffed

-D is a spectator to this event, he goes up to cops, insults them, says Fuck You when they tell him to leave

-D is then arrested, D never made physical contact only insulted cops

-Defendant appeals conviction of obstructing government administration.

-D Argues that his actions were protected under the 1st Amendment