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Criminal Procedure: Investigation
University of North Carolina School of Law
Mosteller, Robert P.

Sources of law
Constitutional law, mainly…
4th Amend (arrest, search and seizure; probable cause and warrants)
5th Amend (no compelling witness to testify against himself; no double jeopardy)
6th Amend (speedy, public trial; Confrontation Clause; right to counsel)
Due Process Clause (5th & 14th Amends; can’t be deprived of life, liberty or property w/out DP of law)
Exclusionary rule suppresses info that’s been illegally obtained; supposed to deter future wrongdoing
*Bill of Rights ONLY protects against governmental (not private) conduct, unless the private entity is acting at the express direction of a gov’t agent.
Federal Code of Criminal Procedure/State codes of criminal procedure
State constitutions
Can give more –but not less- procedural protection than the federal Constitution
Statutory law (rules of courts)
Case law (judge-made rules, evidentiary rules)
Local sources (city ordinances, municipal court rules)
Types of cases
~10% of cases are in federal court
In most states, a misdemeanor can’t be punished for >1 year in prison.
Less than 10% of state prosecutions are for felonies
Double Jeopardy doctrine doesn’t prohibit multiple prosecutions for the same act by different “sovereign” governments (federal and state).
Gap Between Law and Practice
Δ’s rights may be rarely invoked or enforced (ie- lack of evidence, incompetent but not ineffective counsel, lack of resources to pursue all potential legal arguments, waiver of rights)
6th Amend guarantees trial counsel for indigent federal Δs and state Δs only when there’s a potential jail sentence
~80% of criminals are indigent
14th Amend only guarantees indigent Δs counsel for first appeal.
Decentralized nature of prosecution systems
Police/prosecutor discretion
Stages of a Criminal Prosecution
1) Pre-Arrest Investigation
Obtain evidence that will satisfy the “probable cause” standard required for both arrest and judicial validation of a decision to charge a person w/ a crime.
Not as tough as “preponderance” standard for proving liability in civil cases
Tougher than “reasonable suspicion” standard allowed for police seizure
Generally, prosecutors’1st contact w/ case is after some police investigation or after arrest.
In most cases, police do all the investigation before prosecutor comes into the case
Prosecutors sometimes participate in/lead investigation (obtaining warrants, interviews, “sting” operations, advising police, grand jury proceedings, subpoenas)
Prosecutors are especially involved in helping police obtain search warrants
Defense counsel sometimes advises during pre-arrest
2) Arrest
Non-custodial “citation”
Probable cause
Minor crimes (ie- traffic violations)
“Full-custody” arrest
Probable cause
Forcibly detain arrestee, booking at police station, jailed or released to await prosecution’s review and decision to charge
Entitles police to perform a full search of the person (and car if arrestee is a driver).
More intrusive searches allowed for arrestees who will be jailed.
Most arrests are made w/out warrants as exceptions to the 4th Amend
Warrant requests must be supported by sworn affidavits that describe the investigation to make police believe there is probable cause
Warrantless arrests must be based upon probable cause that will be reviewed by magistrate hearing after the arrest (w/in 48 hrs acc. to Sup Ct; w/in 24 hrs in some states).
3) Booking and Jailing
Allows police to keep arrest records.
Minor crime arrests may be able to post bail and to be released on their own recognizance.
State/local law or police custom may allow arrestees to call lawyer/friend.
If not allowed, indigent arrestee might not have contact w/ defense counsel until arraignment.
4) Post-Arrest Investigation
Right to counsel doesn’t exist until the initiation of formal “adversarial judicial proceedings.”
Miranda rights are invoked b/c there is custodial interrogation.
Arrestees have no right to defense counsel presence at interrogations, but can invoke right to counsel by asking for a lawyer, precluding further interrogation in counsel’s absence.
5) Filing Complaint and Bringing Formal Charges
Can drop (b/c of lack of evidence, witness unavailability, etc.), change or add additional charges
Prosecutors/police file complaints in a magistrate’s court (arrestee now a Δ)
Complaint contains description of crime, citation to the criminal code, and police/victim signature
Misdemeanor: complaint = “charging instrument” for prosecutor, usually tried in magistrate ct
Felony: complaint replaced w/ different instrument after proceedings and case proceeds to ct where trial will occur (ie- grand jury indictment, “information”)
6) Δ’s First Court Appearance
Timing depends on custodial status and nature of the arrest.
Magistrate informs Δ of charges and describes Δ’s rights, determines whether Δ is indigent and wishes to be represented by counsel & sets bail for Δ.
Some states allow review for probable cause for a warrantless arrest.
For misdemeanors triable by magistrate, Δ makes plea on the record.
*If misdemeanor, skip to #10
7) Preliminary Hearing by Grand Jury
May not occur for variety of reasons (prosecutor may file nolle prosequi motion to have complaint dismissed; defense counsel may advise client to plead guilty; prosecutor may seek indictment from grand jury)
Preliminary Hearing (required in non-Grand Jury states, sometimes happens anyway in Grand Jury states) provides advantages to defense counsel
§ Cross-examine “probable cause” witnesses who will testify, obtaining a record that can be used for impeachment of witnesses at trial
§ Gives insight into prosecutor’s evidence or strategy
§ Rare for magistrate to reject a complaint for lack of probable cause
Majority of states- Δ must be bound to trial ct, prosecution files “information” supplanting the complaint.
Prosecutors choose this over grand jury when they can.
Other states/Federal prosecutions- Δ must be bound over to the grand jury (makes independent determination of probable cause and issues an indictment supplanting the complaint)
No defense counsel access to the secret proceedings of grand jury
8) Arraignment
Informs Δ of felony charges in the indictment/information.
Δ will be asked to enter a formal plea to the charges on the record.
Plea negotiations begin; most cases are resolved by guilty plea.
9) Pre-Trial Motions
Motions to compel disclosure of evidence, appoint expert witnesses to testify concerning a mental state defense, police/prosecution violated the constitution or statutory law, etc.
Advantageous b/c prosecution can appeal and if judge’s decision was erroneous, case can be tried w/ all the evidence.
10) Trial
Jeopardy attaches when jury is sworn or when first witness is called in a judge trial.
Federal/state statutes often require trial to occur w/in 6 months of indictment
counsel may advise Δ to waive right to a speedy trial or
case may fall w/in statutory exemption to the required deadline.
Jury Selection
Voir dire of jury by defense and prosecution (or judge in some states)
Jurors are challenged “for cause” and with “peremptory challenges”; regulated by Sup Ct precedent and statutory laws
Right to a jury trial is limited by Sup Ct precedent to cases where the max sentence is >6 months in prison; some states provide right in other cases.
Most states require unanimous jury verdicts, Sup Ct precedent allows for non-unanimous verdicts
Most states require 12 members for serious felonies/capital cases; some states use 6 for misdemeanors/less serious felonies. Ct precedent says 6 is smallest allowed for criminal trial.
11) Sentencing
For non-capital cases, Δs are sentenced by judge in most states, by jury in some states.
Jury sentences in capital cases.
12) Appeal
Constitutes waiver of Double Jeopardy rights.
Δ entitled to counsel for first appeal (constitutionally provided by DP and EP clauses).
Once case is final on appeal, you’re dealing w/ collateral attack (different standard for retroactivity).
13) “Post-Conviction” Remedies
State Δs file petition in state trial court seeking state “habeas” or “coram nobis”relief
In NC, this is called “motion for appropriate relief”
Δ can seek evidentiary hearing on such claims, some states provide right to counsel
Most requests not granted; if granted, conducted as a civil proceeding
After this, losing Δs have exhausted available post-conviction remedies in state court; may file petition for writ of habeas corpus in federal district ct to pursue federal const’l claims.

Constitutional Requirements:
1) Probable cause, supported by oath or affidavit
Probable cause- must be more probable than not and impose a focus/individualization
Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place (US v. Grubbs)
Whether, given all the circumstances set forth in the affidavit, including the “veracity” and “basis of knowledge” of persons supplying hearsay info, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (IL v. Gates)
A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.
Affidavits show that the items are in fact evidence of criminal activity and are currently (or anticipatorily) located at the premises for which the warrant is being sought.
2) Particularity (place, person/things)
A warrant is “particular” enough if the description is such that the officer w/ the search warrant can w/ reasonable effort ascertain and identify the place intended.
4th Amend particularity requirement specifies that only the place to be searched and the persons/things to be searched need to be described (US v. Grubbs)
Anticipatory warrants require the magistrate to determine: 1) that it is now probable that 2) contraband, evidence of a crime, or a fugitive will be on the described premises 3) when the warrant is executed.
FRCrP 41(d)(3) (and many states) permit magistrate judges to issue warrants based on info communicated by phone or other reliable electronic means.
Many warrants have a statutory life of 10 days.
Hasn’t been quantified, but probably somewhere a little less than 50%.
Involves an element of individualization
So even if we know a street was in a drug market and 70% of people in the area have drugs, there isn’t probable cause to search an individual’s home.
Carroll v. United States1925
The circumstances (Δs were known to transport liquor in that vehicle, were recognized by the agents, and were on a route known for illegal liquor traffic) provided sufficient probable cause to search the vehicle.
New Probable Cause Test- Whether, given all the circumstances set forth in the affidavit, including the “veracity” and “basis of knowledge” of persons supplying hearsay info, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (IL v. Gates 1983)
A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.
Better than the Aguilar-Spinelli test, which anonymous tips could rarely pass
After-the-fact scrutiny by courts of an affidavit’s sufficiency should not take the form of de novo review. Should only be reversed if there was “no substantial basis” for the magistrate’s decision.
Gates decision has been upheld as an abandonment of the Aguilar-Spinelli test for a totality-of-the-circumstances analysis. (MA v. Upton 1984)
Informer’s Privilege
Federal officers don’t need to disclose an informer’s ID in applying for an arrest or search warrant & Δ can’t successfully make a motion to have informer’s ID revealed (McCray v. IL1967)
Must balance public interest in protecting the flow of info against the individual’s right to prepare his defense. (Roviaro v. US1957)