CRIMINAL PROCEDURE Professor Kuo Spring 2012
EXAM Tips
ALWAYS DO ANALYSIS FOR SEARCH/SEIZURE AND ALWAYS ARGUE OTHERSIDE!!!
IF SOMETHING IS HIGHLY REGULATED LIKE A COMMERICAL BUILDING THEN USE THE ARGUMENTS FROM CARNEY THAT THERE SHOULD BE A WARRANT EXCEPTION
1. What is the law now?
2. How can we deal with it as an advocate?
3. What are the unsettled areas of law that could help my client? What should the law be?
4. What has the burden of proof? (in case of warrantless search, police have to beat the burden to prove reasonableness, with warrant, defendant has to prove unconstitutional)
Break Down the Question Into:
· Facts, Rule, Analysis Rule in comparison to facts and conclusion
· Different conclusions are ok as long as you support it with the facts
· Also, ALWAYS argue in the alternative
Process:
1. Determine Standing
2. Person, House, Paper or Effect
3. Determine whether was a search (Katz) or seizure to see if the 4th amendment is implicated before doing analysis.
4. 4th, 5th, 6th amendments apply directly to fed govt and through 14th to state govt
4th Amendment Checklist
1. Standing
2. Person, House, Paper or Effect?
3. Search/seizure
4. Search/seizure reasonable?
a. Full or Terry?
b. Grounds for search/Seizure?
i. PC/RS/special need?
c. Warrant? If so PC? If don’t have one then is warrant required?
5. Is the Exclusionary Rule Triggered?
6. Fruit of the Poisonous Tree doctrine/exceptions?
Standards of Proof- Highest to Lowest- Questionable cases may turn on the burden
· Beyond a Reasonable doubt- conviction
· Clear and Convincing Evidence- disbarment
· Preponderance of the evidence (more than 50%)- civil case
· Probable cause- warrant, arrest
· Reasonable suspicion- no-knock execution, Terry stop
· Hunch. Justifies nothing but if 4th amendment doesn’t apply then its ok. However can’t make a hunch into PC by finding evidence through illegal search and seizures like in Wong Son.
DETERMINE WHEN SEIZURE/SEARCH HAPPEN TO DETERMINE WHEN TO START 4th Analysis Terry
ALL ARRESTS REQUIRE PC which is facts and circumstances w/in the officers’ knowledge and which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that [an offense has been or is being committed/evidence subject to seizure will be found in the place to be searched
Warrant Particularity Depends on the type of search, the nature of what is being looked for and how likely something else of the same class is to be found at search site. Scrupulous exactitude needed when 1st amendment comes into play. Pg. 198
Look for Police Breaking Law to See or Search something
On Exam, when something is determined to be a search then you will argue whether or not a warrant was required or if it was proper warrantless search.
If trying to show PC using the predictive nature of an informant’s tip use the minute particularity language from Spinelli/Draper. Also see if predicts something in the future, FUTURE REFERENCE STRENGTHENS THE BASIS OF KNOWLEDGE & RELIABILITY***
Principle of Particular Justification****- An exception the warrant requirement (or circumstance making search reasonable) extends only so far as the rationale for it. Chimel. Can search immediate grabbing area to protect safety of officer and prevent destruction of evidence subject to an arrest. But search cannot be remote in time or place. Chadwick
FULL SEARCH OF PERSON AUTOMATICALLY PERMISIBLE WHEN MAKING AN ARREST. SITA IS AN EXCEPTION TO WARRANT AND PROBABLE CAUSE REQUIREMENT. Robinson
When arguing PC make factual distinctions
VALID WARRANT REQUIRES
1. Probable Cause
2. Oath or Affirmation
3. Particular Description
4. Due Process (implied)
Exceptions to Warrant Requirement****
· Exigent Circumstances
· Search incident to arrest
· Cars & Containers
· Plain-View Doctrine
· Consent
Terry Checklist- Particular Justification at each stage
1. Is there a seizure?
a. Whenever a police officer by means of physical force or show of authority has restrained the liberty of a citizen may we conclude a seizure has occurred.
2. Is the search reasonable?
a. Govt v. Private Interest
3. Did the officer has a reasonable suspicion based on specific articulable facts that his safety was in danger thus justifying the search at its inception
a. Would reasonably prudent man in situation believe that safety was in danger.
4. Is the search reasonably related in scope to the circumstances that justified the intrusion?
a. Minimal intrusion necessary to protect govt interests and minimalize damage to private interests.
b. Protection of officers means only search for weapons by doing a frisk
When looking at whether a stop is reasonable look to see if cops used most reasonable means or if there was an alternative and then if looking at alternatives see if it was unreasonable not to use one
New Test for Seizure***: A person has been seized within meaning of 4th Amendment only if, in view of all circumstances surrounding the incident, a reasonable person would have believed that he was not free terminate the encounter. Seizure is looked at from the suspect’s point of view. Drayton/Bostick broaden Mendenhall test which asked if felt free to leave.
Court says that if cop asks permission to search a person and the person says YES then it is strong evidence that the search is voluntary.
Indications of reasonable belief of a seizure/ FREE TO LEAVE TEST****:
· Touching of person
· Number of officers and their positioning
· Whether the subject’ path was blocked
· Was subject asked to step aside or to accompany the police
· Does officer retain subject’s
· Display of Weapon
· Language or Tone of the officer.
Absence of otherwise inoffensive contact between a member of the public and the officer then not a seizure. Regular contact is not enough. Cant just be because he’s a cop.
Important Points (Drayton)
1. Court says that if cop asks permission to search a person and the person says YES then it is strong evidence that the search is voluntary.
2. Police do not have to tell the person that the search is voluntary but it is a factor.
3. If officer had physically barred door, pull guns, or told everyone to keep their seat then probably would have been seized.
Holding/Rule: When a suspect flees, he is not seized** within the 4th unless there is: (Hodari. D.)
1. Actual Application of Force- touching or physical control
2. Submission to Police authority
Chase alone is not sufficient to constitute seizure. (Hodari D.) However if there is Ambiguity- terry recognized that the officers could detain the individuals to resolve an ambiguity. This recognizes that officers may stop innocent people. However, this is only a Terry stop need PC for more intrusive stop. (Wardlow/Terry)
Protective Sweep Rule**** (Use for searching larger area than grabbing area & to do a cursory search of the entire home on arrest): This extends both CHIMEL & TERRY.
· In all situations WITHOUT RS or PC, the police may look in closets and other spaces immediately adjoining the place of arrest from which an attack could be reasonably launched.
o Traditionally only could search gr
aution in the belief that the consenting party had authority over the premises? If yes then the search is valid.
Special Needs Search Test from Brown v. Texas 3-Part Balancing Test
1. Government’s Special Need
2. Effectiveness of the Program in Achieving this Need; and
a. The degree to which the seizure/search advances the public interest. Sitz
3. Level of Intrusion on Individual Privacy
a. Objective/Subjective Perception of Citizens Sitz
Leon/Herring Exclusionary Rule Test: To trigger the exclusionary rule,
[1] police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such
[2] deterrence is worth the price paid by the justice system.
ER serves to deter deliberate, reckless, or grossly negligent conduct, or in some cases recurring or systemic negligence. This is an OBJECTIVE test. Whether a reasonably well-trained officer would have known the search was illegal in light of all the circumstances, which include the officers knowledge and experience.
Failures of Criminal Procedure
Powell v. Alabama
· Facts: Black guys on a train throw some white kids off a train and when they got off the train 2 women also accused them of rape. They were never given counsel. The court appointed “all members of the bar” in the arraignment. At time of trial no specific attorney had been appointed.
· Holding: Court has a duty to assign counsel. And this was not done here. Presume that all defendants are innocent until proven guilty. Provided every incident necessary to a fair trial.
· Three facts that move judges to choose one permissible outcome over another
o American judges are citizens in a free democracy- balance security v. individual rights
o Federalism- balance too much and not enough supervision
o Range of choices
Incorporation Doctrine
Two Main Views
Total Incorporation (Justice Black)- everything in bill of rights was incorporated against the states with the 14th amendment.
Selective Incorporation- choose which amendments of the Bill of Rights apply to the state.
Duncan v. Louisiana – overruled Twining v. NJ which held self-incrimination was not incorporatied.
· Facts: Black teenager wanted a jury trial for simple assault but trial court say not a right.
· Holding: Court says the test for determining whether a right extended by the 5th and 6th amendments is incorporated is if it is a right among “those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. Or whether it is a basic in our system of jurisprudence.
o Selective Incorporation. Guarantees right to trial by jury in all criminal cases which if tried in a federal court would come within 6th amendment’s guarantee.
§ Look at history of this rule
· Dissent: Harlan says that the 14th amendment is a freestanding Fundamental fairness question and whether not having the right to a trial by jury would result in a trial being fundamentally unfair.
