Select Page

Criminal Procedure
University of Toledo School of Law
Steinbock, Daniel J.

Fall 2006

a. Stages of the Criminal Case
i. Pre-arrest investigation
1. Two possibilities
a. Reaction to a report of a crime OR
b. Begins before crime takes place
i. Examples: stake-outs, undercover operations
ii. Arrest
1. Taking a person into custody with the purpose of charging them with a crime
iii. Booking
1. Fingerprinted, photographed, recorded
iv. Decision to charge
1. Not everyone arrested is charged with a crime
2. Decisions to charge (and what to charge) can be made by police, prosecutors, or both
v. Arraignment on the complaint
1. Complaint: charging instrument
a. Can be very brief; list crimes and who charged
2. D is brought to court
a. Given copy of compliant
b. Given Miranda warnings
c. Bail, if any, will be stated
vi. Review of the sufficiency of evidence
1. Neutral party, often a judge, will review evidence
a. Can happen two ways (one or the other, not both)
i. Preliminary hearing
1. Prosecution puts on “mini-trial”
a. Has witnesses
2. D is present and can call witnesses
3. Judge then decides if there is probable cause that a crime was committed and the D committed it
a. If charged, a new charging instrument is issued
i. Information: replaces the complaint
ii. Grand jury
1. Group of citizens who hear the prosecution’s evidence
a. Probable cause standard
2. D is not present and only prosecution presents evidence
a. Ex parte proceeding
3. If charged, grand jury issues a new charging instrument
a. Indictment: replaces the complaint
i. After filed, there will be an arraignment on the indictment and the D will formally enter a plea
vii. Pre-trial motions are filed
1. Constitutional provisions for motions to suppress
a. 4th Amendment à protections against search and seizure
b. 5th Amendment à right against self-incrimination
c. 6th Amendment à right to have assistance of counsel
viii. Trial/plea of guilty/dismissal
1. Most cases don’t go all the way to trial, they are pleaded out
a. Lesser charge, lesser sentence, take away a charge
2. Right to trial by jury
a. Can only be waived by the D
ix. Sentencing
1. Occurs if found guilty at trial
a. Judgment of conviction
b. After Trial (found guilty of felony in state court of general jurisdiction)
i. State systemàD found guilty in state courtàdirect attack on conviction
1. D appeals to the Intermediate Appellate Court
i. Court will automatically hear the appeal à do not have to persuade court to hear case
1. D gets one appeal as of right
2. Appeal of the Appellate ruling by losing party
a. Discretionary appeal à court doesn’t have to take it
3. Appeal to Supreme Court of the United States
a. Can appeal if:
i. State Supreme Court refused to hear case OR
ii. State Supreme Court did not rule in your favor
b. MUST involve a federal issue
ii. Federal systemàD found guilty in federal courtàdirect attack of conviction
1. Appeal by D of the United States District Court decision to the United States Court of Appeals
a. Appeal of right
2. Appeal to the Supreme Court à discretionary
iii. Writ of habeas corpus à collateral attack on conviction
1. Petition the federal court to challenge an allegedly unlawful custody
a. Make warden explain why it is legal for them to hold you
i. Case name
1. D versus the warden
b. If you are a state prisoner, you must allege you are being held against the United States Constitution
2. State prisoner CANNOT apply for habeas corpus relief UNLESS the prisoner has exhausted all state remedies
a. Must have raised issue in trial court, raised it on appeal in the Intermediate Court, tried to take it to the State Supreme Court
i. Only then can you file with the United States District Court (note: it is not filed with the Supreme Court)
1. If lose in the United States District Court you can appeal to the United States Court of Appeals but they do not have to take it, then you can appeal to the United States Supreme Court
a. Must work your way back up

II. Fourth Amendment
a. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures , shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized
III. Probable cause
a. All warrants need to be supported by probable cause
b. Probable Cause: at the time of arrest, the facts and circumstances within the officer’s knowledge and of which they have reasonably trustworthy information are sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense
c. Sources of Probable Cause
i. Informants
1. Discussed below
ii. Victim/witnesses
1. Often have no track record of reliable information nor can they always corroborate the crime
a. EXAMPLE: see cop on street corner and tell him the man down the street stole your purse
2. Description of crime and/or perpetrator with particular specificity is sufficient to establish probable cause
a. Probable cause to arrest: officer has probable cause to believe that a crime was committed and that the person was the perpetrator
i. If it turns out the person was not the perpetrator, it may not be enough to show it was an illegal arrest/false imprisonment
1. Must show there was no probable cause
iii. Police observations
1. Examples
a. (1) High crime neighborhood. TV show sets up camera overlooking a street corner. Guys are sitting on the corner and a pulls up to the corner periodically. A guy in the group comes up to the car and sticks his head in for 30 seconds and then returns to the stoop. Is there probable cause?
1. Looks too much like innocent activity
ii. What about if different cars pull up p

rns out a part of the affidavit is false?
1. Allegation of perjury or reckless disregard in regards to affiant’s testimony
2. Must be shown by a preponderance of the evidence
a. If D successful, the false material set aside
i. If remaining content doesn’t sustain PC
1. The warrant will be voided AND
2. Fruits of search will be excluded
a. As if the affidavit lacked probable cause from the get-go
c. Execution of the Warrant
i. Time of execution
1. Must be executed within 10 days of issuance
a. The probable cause that was relied upon to issue the warrant must still be present
2. Must be during the day time
a. Exception: judicial authority to execute at night
ii. Gaining entry
1. Knock and announce
a. One aspect of a reasonable search and seizure is that police announce their presence
b. Exception to knock and announce rule
i. When knocking and announcing would
1. Endanger the police OR
2. Result in the destruction/removal of evidence OR
3. Escape of person to be arrested
c. How long must police wait after knocking and announcing before they may enter?
i. Whether it reasonably appeared to the police that the occupant has had time to get to the door
d. If occupants refused to answer the door, the police may enter
e. Is the fact that the police caused damage to the property when they entered enough to make the no knock entry unreasonable?
i. No, the destruction of property caused by a no knock entry in no way effects the reasonableness of the no knock entry
iii. Search of persons on premises
1. Ybarra v Illinois
a. Facts
i. Police received tip that heroin was being sold from a bar and the heroin was kept behind bar that the bartender was involved
ii. Obtained search warrant and search not only the bar and the bartender but also all the patrons there at the time, including Ybarra
b. Court says
i. A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person
1. Probable cause was absent to search Ybarra was absent when warrant was issued and when it was executed
a. A search incident to arrest could have been performed if there was probable cause to arrest Ybarra on the premises
iv. Detention of persons on the premises
Detention of individuals on the premises is not a significant intrusion