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Criminal Procedure
University of Denver School of Law
McDaniel-Miccio, Rabbi Kris

Criminal Procedure
Fall 2010
o   Under the 4th amendment, what is a search & what is a seizure?
o   For the 4th to apply, it must be a state officer, i.e. police officers, federal parks officers, postal masters. (any officer of the state)
o   Warrants – given by independent magistrate when there is probable cause
o   Probable cause à when it is more likely than not that the item/person/home in question is evidence of breaking the law
o   Affirmation à “I affirm under the penalty of perjury” signed
o   Oath à sworn statement
o   Predicate has to be there before the seizure
o   Remember, Arrest and Terry get 4th amendment protections
o   6th amendment
o   speedy and public trial
o   applies only to criminal prosecution
o   public à courtroom proceedings are not to be secret
o   charges have to be laid where the crime took place
o   jury of peers à very generic term, though a lot of litigation has taken place on the subject
§  cannot exclude on the basis of race or gender
o   bail hearing – certain amounts asked for by the prosecutor to make sure the defendant doesn’t run – not a form of preventative detention
§  can also remand or give RoR (PR) Bond
o   confrontation clause
o   right to counsel
o   distinction between felonies and misdemeanors à felonies generally if carries jailtime exceeds a year
State Courts are bound by the decisions of the US Supreme Court in Federal Constitutional Law.  In state law, may not be more narrow than constitutional law, but can be broader.  Supreme Court decisions are the floor of state law, they are not the ceiling.
I.       What is a seizure?
·         California v. Hodari
o   Issue: Whether a showing of authority (telling someone to stop/halt) and not physical force is a seizure.
o   Facts: When officer approaches ∆ for a “stop & inquire,” ∆ runs & discards cocaine – he is then tackled to the ground and arrested him. 
o   Rule:
§  Absent physical force, have to demonstrate that there is a show of authority that is SUBMITTED to by the ∆ (note: some state courts do not follow this rule, hold seizure occurs when suspect is no longer free to walk away)
§  Seizure determined by citizen’s action rather than the officer’s conduct
·         United States v. Drayton (good distinguishing case)
o   Issue: Whether officers must advice bus passengers during encounters of their right not to cooperate.
o   Facts: During a routine drug and weapons interdiction effort police officers asked respondents if they could examine their bags. Then searched persons and found cocaine.
o   Rule:
§  Reasonableness- would RPP have felt free to leave
§  Consent is voluntary
§  Plain feel (smell, hear, view) doctrine
·         Have to be lawfully present and
·         It has to be immediately apparent that it is contraband
II.    Different Seizures
Overview of Seizures
State Action
∆’s rights
Probable cause (PC)
Terry stop
RASCAAF (reasonable articulable suspicion criminal activity is a foot)
Stop and inquire
Rt to refuse (officer could arrest you (this is NOT the law, but happens in practice))
Remember, Arrest and Terry get 4th amendment protections!
To determine State Action look to totality of circumstances
·         Environment
·         Verbal command & limitations
·         Purpose
·         Duration
Highway Stops as Seizures (The Sliding Scale of Suspicion)
Check for unlicensed drivers, random
DWI checkpoint
Policy/ not random
No particular suspicion
Checkpoint for drugs
9% hit rate
No particular suspicion
4th Amendment Exceptions
Probable Cause
Dual Exceptions:
Terry Stop
Terry Frisk
SIA (search incident to an arrest)
Auto exception
·         Exigency: hot pursuit, dest. of evidence, threat to safety (public welfare)
·         Plain view- gives you the lawful probable cause as long as you can see, smell, feel, lawfully present
A.    The Random Stop
·         Delaware v. Prouse
o   Issue: Whether is unreasonable seizure to stop car for purpose of checking the driver’s license and registration w/o any probable cause or reasonable suspicion that there was a legal issue. 
o   Facts: Officer to check license and registration stopped Respondent, and officer found marijuana in plain sight in the car when he approached. 
o   Rule:
o   State Action has to be reasonably related to the State’s goal
o   Randomly stopping a car to check for licenses is insufficient justification
o   Can’t interfere with privacy of individual w/o reasonable particularized suspicion or probable cause
o   Particularly where the state’s goal is being forwarded through other means à i.e. licensing system, license renewal, registration renewal, etc.
o   Interest of state has to outweigh the privacy of the individual
o   The action must be supported by a policy/pattern
B.     Roadblocks
Michigan Dep’t of State Police v. Sitz
o   Issue: Whether state’s use of DWI sobriety checkpoints is unreasonable seizures.
o   Rule:
§  Look for:
·         A State Policy
·         State action to c

ticulable suspicion criminal activity is a foot)
§  To frisk- RASPAD (reasonable articulable suspicion presently armed and dangerous) (If no RASPAD, no touch)
§  Scope of frisk- has to be confined to what is minimally intrusive, can’t go inside layer of clothes, if hit something that could be weapon then have RASCAAF à immediately apparent, can’t manipulate or go inside pocket
o   Policy:
§  We want police officer to be able to stop those about to, or who just have completed a crime
§  After Terry, Police Officer has two options, Arrest or let go.
·         Sibron v. New York à Talking to known Drug Addicts case
o   Issue: Whether evidence seized from person should be suppressed.
o   Facts: Followed ∆ into restaurant after observing him talking with drug addicts and reached into ∆’s pocket and found heroin. 
o   Rule:
o   Need RASCAAF to stop à probably has
o   Need RASPAD to frisk à doesn’t have
o   Need PC to go into the pocket à definitely doesn’t have
§  Once you get PC, can do more than frisk.
·         Peters (case within Sibron) à Burglars inside building
o   Had probable cause à performed search incident to arrest
·         Alabama v. White à 1st informants case
o   Issue: Whether an anonymous tip as corroborated by independent police work was reliable and sufficient to provide reasonable suspicion to make the stop.
o   Facts: Officers received tip by phone that ∆ was going to leave apartment and go to motel with cocaine.
o   Rule:
§  Terry stop and frisk undertaken on the basis of tip given in person by known informant carries sufficient “indica of reliability” to justify a forcible stop
§  Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to established probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
§  Need to demonstrate a special familiarity with a suspect’s affairs, corroborated by independent police work under a totality of the circumstances to justify stop.