Criminal Procedure Outline

Prof. Quick Criminal Procedure Summer 2011
4TH AMENDMENT
 
EXCLUSIONARY RULE – Evidence suppressed if impropriety in the process of gathering it – evidence obtained by an illegal search or seizure is not admissible at a criminal trial as proof of guilt.
Mapp v. Ohio
·   Application of the exclusionary rule to the states through Fourteenth Amendment incorporation of the Fourth A.
·   D refused to let police in w/o SW; forcibly opened door and would not let lawyer in or see her; showed a “warrant” (not valid) and arrested her; discovered lewd materials
o Exclusionary rule applies to the states via Weeks despite Wolf
o Rule ensures (1) judicial integrity and (2) specific and general deterrence
Scope of exclusionary rule
1) Covers indirect (the “fruits”) and direct invasions  (the “poisonous tree”)
2) Cannot subpoena what was illegally seen
3) Suppresses physical evidence, indicia and “mere evidence”
4) Suppresses verbal statements made by suspects
5) Suppresses what police observe or overhear (verbal statements made by suspects)
6) Derivative evidence– all evidence derived from violation of D’s rights must be suppressed
7) Ds physical presence for trial and punishment is never the excludable fruit of improper law enforcement conduct. D is not excluded.
Fruit of the poisonous tree doctrine
Courts will suppress evidence illegally seized and any evidence derived from it (derivative evidence)
Once D establishes a violation of constitutional rights, he is entitled to suppression of all fruit of that poisonous tree
ID of a person can be a “fruit”, but D’s presence at trial is never a “fruit”, does not matter if illegal arrest or not, actual case does not have to be dismissed (unless not enough evidence); any statements or evidence seized from person would be suppressible but not D
Whether the evidence being objected to was obtained through exploitation of illegally obtained evidence or “instead, by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun
Evidence illegally obtained as a direct result of improper police conduct is subject to exclusion; and
Evidence obtained directly or indirectly as a result of illegally obtained evidence may also be subject to exclusion if the evidence is closely tied to the initial illegal activity. Secondary evidence may be admissible if there is a break in the causal chain from the illegal activity to the evidence, such as the Ds own voluntary act, consultation with counsel, etc.
EXCEPTIONS TO THE “FRUITS” RULE (exclusionary remedy does NOT apply)
Attenuation of the Taint
·   Connection between lawless conduct of police and discovery of the evidence had become so attenuated as to dissipate the taint
o    Factors per Brown v. Illinois (affirmed in ND case State v. Gay):
§  Miranda warning given – determining whether the confession is obtained by exploitation of an illegal arrest
§  Temporal proximity of statements/illegal conduct
§  Good faith or flagrancy of police officers
§  Intervening circumstances or events making the act free will
·   Where police have PC to arrest suspect, exclusionary rule does not bar State’s use of a statement made by D outside of his home, even though the statement is taken after an arrest made in the home in violation of 4th A – New York v. Harris.
 
Wong Sun v. US:
(1) Since the statements made by Toy in his bedroom when arrested were not a sufficient act of free will to purge the primary taint of the unlawful intrusion, INADMISSIBLE
(2) Since the narcotics were come at by the exploitation of illegality, they may not be used against Toy but can be used against Sun because, as surrendered by Yee, it did not invade Sun’s right of privacy (NO TAINTED RELATIONSHIP)
(3) Toy’s statement was given a few days after and was ADMISSIBLE
(4) Sun’s unsigned confession was NOT the fruit of the arrest and was properly admitted as it was attenuated from the taint. 
Independent Source Rule
·   Rule providing – as an exception to the Fruit of the Poisonous Tree Doctrine – that evidence obtained by illegal means may nonetheless be admissible if that evidence is also obtained by legal means unrelated to the original illegal conduct.
·   If evidence is obtained by police after they violated Ds rights but not as a consequence of that violation, the evidence is of an independent source and is admissible despite the officer’s intrusion upon Ds rights.
·   Murray v. US: had PC facts to get SW that was not part of the original “sneak and peek”
o    Police initially discovered evidence during an illegal “sneak and peek” of a warehouse, but subsequently discover the same evidence during a valid search, hence the evidence is admissible. To avoid the exclusionary rule, the second search must be totally independent of the first, illegal search.
·         If search pursuant to warrant was independent of 1st search, evidence is admissible
·         If police obtained evidence from an independent source not connected to the illegal search or seizure, evidence is admissible.
·         Good faith not required for Independent Source Rule.
Inevitable Discovery
·   When the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus between the error and the evidence sufficient to provide a taint and the evidence is admissible. Nix v. Williams
·   The burden is on the govt to demonstrate by a preponderance of evidence that the item the prosecution is seeking to introduce ultimately would have been discovered by lawful means.
·   Supreme Court does not require good faith, but ND does (State v. Phelps, State v. Johnson; State v. Gregg)
Impeachment of testifying D
·   Even if suppressed during govt’s case, suppressed evidence may be available to impeach if D testifies inconsistent w/ suppressed evidence; Harris v. NY
·   Evidence obtained in violation of Ds 4th Amend rights can be used, if D takes the witness stand at trial, to impeach the Ds credibility. It may even be used to contradict answers given by a testifying D on cross examination as long as the testimony is in response to questions plainly within the scope of the Ds direct examination. A confession obtained in a manner rendering it involuntary cannot be used to impeach the D if he testifies at trial. It is not reliable and violates due process.
·   Test: whether the questions on cross examination would have been suggested to a reasonable competent cross-examiner by direct
o    But if statement suppressed b/c involuntary, not usable for impeachment b/c feared to be unreliable
o    Only applies to Ds, not non-defendant witnesses
Good Faith
·   If Police can act on objective good faith search warrant – Court will still allow illegally seized evidence. Exclusionary Rule is not constitutionally required under Leon.
·   US v. Leon: after observing drug dealers, facially valid SW was issued and the ensuing searches produced drugs. There was not Probable Cause for the SW.
o Exclusionary rule is not constitutionally required, but is judicially created remedy
o Exclusionary rule does not bar evidence that officers acting in reasonable reliance on a SW issued by a detached and neutral magistrate but ultimately found to be unsupported by PC
Reliance on statutes – The Exclusionary Rule does not apply when police rely in objective good faith on a facially valid statute as it exists – even if the law is later declared unconstitutional, and even if the law purports to authorize a warrantless search which is later unconstitutional.
·         Michigan v. DeFillippo: D was arrested for violating “Stop and Identify” ordinance later unconstitutional; arrest found valid
·         Illinois v. Krull: warrantless inspection of junkyard per statute later found invalid also upheld but obj. reasonable reliance found
·         Exception to the exception: Statute cannot support objectively reasonable reliance, if the legislature abandoned its obligations
 
Mistaken perception for 1) court clerk error and 2) police mistake does NOT lead to suppression of evidence
o Arizona v. Evans: AW turned up in computer database so police pulled over D, arrested him. A search revealed meth. Warrant had been recalled months earlier. Clerical errors by court employees – does not require suppression of evidence.
o Herring v. US: Good faith exception applies if officer reasonably believes there is outstanding warrant, but would NOT apply if a systemic error or reckless disregard. “Evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge that the search was unconstitutional under the 4th A.”
 
Exceptions to good faith reliance – Police cannot get the benefit of the Good Faith Exception if:
1) Affiant knew or should have known information was false (Franks v. Delaware)
2) Issuing judge abandons judicial role (Lo-Ji Sales v. NY)
3) Warrant was facially deficient; did not particularize place searched or thing seized
4) SW was so lacking in indicia of PC as to render official belief in its existence entirely unreasonable
 
Burden of Proof
D seeking exclusion of evidence must prove:
1.       Illegality sufficient to trigger exclusionary sanction
2.       Standing (Ds right to invoke the sanction)
3.       Fruit of the poisonous tree (the challenged evidence was obtained as a factual result of the illegality)
 
·         Prosecution bears burden of persuasion for “exception” – by a preponderance of the evidence – Matlock
 
NOTES:
·         Balancing test for exclusionary rule expansion: rule objectives v. costs of expanding
·         Supervisory power – gives S Ct and state cts authority to require exclusion of evidence obtained in violation of nonconstitutional legal requirements
·         Standing – D’s own constitutional rights have to be infringed in order to object
 
o    Does NOT apply to the following criminal and non criminal proceedings other than trial:
o    Grand jury
o    Federal h