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Criminal Procedure: Investigation
University of Toledo School of Law
Carr, James G.

Official Outline
Judge Carr – Fall 2010
Big Picture to Criminal Procedure-Investigations: revolves around the justification for the government to act. The course deals with different requirements and levels of justification in order for police to intrude upon citizens’ rights. If the requisite level of justification is lacking, there is an unconstitutional infringement upon a citizen’s rights.
4th Amendment Analysis Template:
i.         Do the 4th Amendment protections apply? (Only applies to government/state action, not to private parties, unless they are agents of the state).
1.        Standing?
a.        Does the person have a legitimate expectation to privacy (Rakas)?
2.        If yes: is X a 4th Amendment search and seizure?
a.        Search: Katz test: reasonable expectation of privacy (subjective + objective)? Or
b.       Seizure: Mendenhall test: whether a reasonable person would have believed that s/he was not free to leave under the circumstances.
c.        Arrest
3.        If yes: was there a warrant?
a.        If yes: then the search/seizure was presumptively proper, assuming
                                                                                                   i.      Apply Spinelli & Gates Tests to find PC
                                                                                                  ii.      Particularization (the place and things to be seized)
                                                                                                iii.      Oath and Affirmation
                                                                                                iv.      Detached Judge/magistrate
b.       Unless:
                                                                                                   i.      Deficient warrant? (Lacking 4 requirements; Franks test)
1.        If so: was there a Leon Good faith exception?
2.        Inevitable discovery? Independent source?
                                                                                                  ii.      Exceeded scope of the warrant? If so, was there:
1.        Exigent Circumstances
2.        Plain View
3.        Consent or 3P Consent
                                                                                                iii.      If not, then only the items seized within the scope of the warrant will be admissible, and the items outside the scope will be suppressed.
4.        If no: does a PC exception apply (PC required for each)?
a.        Traffic violation
b.       Automobile search (must have PC of contraband in vehicle; cannot use an incident to arrest search)
c.        Exigent Circumstances (PC + Exigent Circumstance)
d.       Search incident to arrest (PC needed for the arrest; no justification needed for the search of the area w/ immediate control)
e.        Direct Observance of Officer
f.         Non-Human (Dog Sniff)
g.        Plain View (Lawful vantage point + PC when viewing contraband)
5.        If no: is there an exception to the rule requiring PC?
a.        Stop and Frisk (RS)
b.       Protective sweep (RS)
c.        Consent (no warrant, PC, or RS necessary)
d.       Administrative searches (no warrant, PC, RS, or consent necessary)
e.        Terry Stop (RS)
5th Amendment Applicable to interrogation
1)       Was he in custody?
a.        Apply objective test: would a reasonable person believe he is under arrest or his functional equivalent—based on the totality of the circumstances
                                                               i.      Says you are under arrest
                                                              ii.      Sufficient restraint of freedom of movement; of a degree that a reasonable person would associate with a formal arrest. Does it have the attributes of being strongly enough in custody?
1.        Just a simple detention?
2.        Custody in Miranda terms:
a.        Who initiated it?
b.       Location
                                                                                                                                       i.      Generally: in home or roadside in traffic stop= not custody
c.        Purpose
d.       Conduct/manner
e.        Duration
f.         Restraint of freedom
g.        Asked to leave?
h.       Age
i.         Subject to manipulation?
                                                            iii.      If no, end of discussion, in terms of the Miranda issue. Even if he didn’t get them, it doesn’t matter.
b.       IF yes?
2)       Interrogation?
a.        Innis test: words or actions that officers know, or should know, would lead someone to elicit an incriminating response?
                                                               i.      Shotgun case
                                                              ii.      Christian burial case
3)       Voluntary?
4)       Did they give the warnings? If so, were they complete?
a.        Were they timely
5)       3 Exceptions:
a.        Public Safety: where is the gun?
b.       Booking
c.        Blurted Out
6)       Were the Miranda warnings waived voluntarily?
a.        Did he say what he said voluntarily?
7)       Did The D unambiguously invoke the right to counsel?
a.        If yes: all questioning must cease
                                                               i.      Is whatever the officers after the invocation, constitute an interrogation?
b.       If no: no duty to ease questioning
8)       Post Invocation
a.        Right to Counsel: Edwards test—officers cannot renew conversation unless the attorney is present, or if the D initiates further conversation or contact.
                                                               i.      Shelf Life: two weeks
b.       Right to silence: not a permanent barrier
                                                               i.      Did they scrupulously honor? I.e. after he invoked, did they leave him alone?
1.        The longer the gap, provided the new conversation has Miranda warnings, the less likely to find it was not scrupulously honored.
2.        Run through analysis upon second round of questioning
c.        Upon invocation
                                                               i.      Officers can then inquire about a different crime.
9)       Only consequence of not giving warnings,
a.        Suppression of confession in the CASE IN CHIEF. Prosecutor cannot offer the confession.
b.       If D takes the stand, a confession that is violative of Miranda, Edwards, Massiah, can be introduced to impeach.
6th Amendment
1)       Once 6th Amendment attaches (right to counsel), it attaches at the commencement of adversarial proceedings: copy of complaint told charges are addressed to him that is where the attorney is appointed.
2)       Massiah: government and state cannot undertake to interrogate the Defendant, if it does, any statement he gives are admissible in the case-in-chief.
3)       Montejo (loophole): police officers known by the D to be a police officer, can go to the D,
a.        If in custody: give Miranda
b.       If out of custody: still have to give Miranda
c.        Lawyer doesn’t have to be told, doesn’t have to be present
d.       If D is given the warnings adequately, waives his rights voluntarily, he can be questioned without his counsel.
4)       Then was the waiver voluntary, was the statement voluntary?
Test notes:
Exam: know the current and supreme court doctrine. Focus on the stuff covered in class and the materials put together. Do not have to memorize rules or statutes.
–          Request: essay questions. Either a jump essay or a smaller essay.
–          Essay question: double space the answers.
–          Write—
o    Issue“ issue:” ex: apparent authority.
o    Rule/Doctrine: A person who has authority may consent to the premises, officer may rely on apparent authority, however, scope cannot exceed the area to which the consent applies.
o    Apply the doctrine to the facts.
o    Conclusion: there won’t be a definite one; it will be on the line.
WRITE SHORT PARAGRAPHS!!!!! It’s a lot easier to read.
i.      Criminal Procedure: the actions of police officers, prosecutors, defense attorneys, judges, and other government officials.
Ø Criminal Procedure limits the way the government can interact with citizens, suspects, defendants, convicted offenders, and victims.  
ii.    A society’s vision of ordinary and desirable police behavior determines the “border” of criminal procedure—that is, the point where the law, in the form of rules from whatever source, comes to guide and limit police activity.
A. Police as community caregivers
i.      Community Caretaker: Involves police-initiated actions that pursue some purpose other than enforcing the criminal law—actions often referred to as the “community caretaker” function of police.
ii.    Rule: exception to the general requirement that officers may not enter private premises without a search warrant.
iii.  Analysis: requires the court to look at the function performed by a police officer
iv.  Examples of Community Caretaker function of police:
Right to enter or remain on premises of another if it reasonable appears necessary
1)    Prevent serious harm to person or property
2)    Render aid to injured or ill persons
3)    Locate missing persons
Right to stop or redirect traffic or aid motorists when action appears necessary to
1) Prevent serious harm to any person or property
2) Render aid to injured or ill persons; or
3) Locate missing persons
v.    Rule and analysis of Community Caretaker:
i.      Plain sight: When an officer is lawfully on the premises for an emergency, observations made by means of his natural senses from his natural vantage point, do not constitute a search for Fourth Amendment purposes; however,
ii.    Continued presence: continued presence and further searches after the emergency, is unlawful unless justified by one of the exceptions to the warrant requirement.
b. Police as Emergency Aid
i.      Emergency aid: police may investigate without a warrant where there is an “immediate need” for police assistance “for the protection of life or property” and where the police are “primarily motivated by safety concerns, and not a desire to seize evidence.”
ii.    Rule: exception to the general requirement that officers may not enter private premises without a search warrant.
iii.  Analysis: determines an analysis of the circu

not be excessively intrusive in that the officer’s actions must be reasonably related in scope to circumstances justifying the initial interference. Once the purpose of the traffic stop is completed, a motorist cannot be further detained, UNLESS something that occurred during the stop caused the officer to have a reasonable and articulable suspicion that criminal activity was afoot.
l.      Ferman: Officer can search individual when making a custodial arrest for a traffic violation.
m.  Vehicle searches—incident to an arrest (Chimel exception, overruled Belton)
a.    Arizona v. Gant: Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is:
1.    Within reaching distance of the passenger compartment at the time of the search; or
2.    Reasonable to believe the vehicles contains evidence of the offense of arrest
n.    Search of Containers in cars: Warrantless searches are allowed of containers within automobiles so long as the police have probable cause to believe that either the car as a whole or the container itself holds contraband or evidence.
o.    Containers not in cars: for containers outside of cars, police apparently must find one of the many familiar exigencies to justify a warrantless examination of its contents. In jurisdictions that follow the federal rule, a container becomes subject to warrantless search, so long as the officer has probable cause, as soon as it is placed in a car.
p.    To exercise the automobile exception: Police must have PC to believe that the car contains evidence or contraband. If the police have probable cause, under the automobile exception they may stop the car and conduct a search. A search may be rejected if it exceeds the scope justified by objects while police, based on their finding of PC expect to discover.
How Officers can do searches of vehicles w/out warrants
1)       Michigan v. Long: if officer has RP that there may be a weapon in the vehicle, on any of the occupants, or anybody else, can present danger to the officer, officer can go on in and look for weapons. However, he cannot search in the containers in the vehicle. Does not include trunk.
2)       Automobile exception: (Ross): where an officer has PC to believe that a vehicle contains contraband or evidence of a crime, the officer can search the entire vehicle, and anything found in it. Glove compartment, containers, in and under seats, trunk, containers, lift up the tire, etc.
a.       Now you may not have PC to arrest the occupants, but PC
3)       Inventory: officers can open closed containers found in the vehicle, if:
a.       Inventory if the police agency has procedures requiring inventory of every impounded vehicle and officer follows those procedures, which allow for searching of closed containers.  If officer has discretion to inventory then it becomes more like a search and evidence will be excluded.
6 ways to lawfully search a vehicle
1: consent
2: Gant: search incident o arrest/chime
3: inventory
4: Michigan v. Long –RP for weapons
5: Carol ross PC-Automobile Exception
6: Acevedo PC to a container
Closed containers outside a car:
1)       If it is incident to the arrest and the container is in a place where the D could have reached to get a weapon (standard chimel), they can open up the brief case, the lunch bag, etc. But once the D and the container are separate. No need to search for weapons or evidence.
2)       Inventory if it accompanies the arrestee back at the station
3)       If the vehicle has PC of Contraband, then you can search the container.
4)       Warrant
d. Four types of encounters:
a.       Terry Reasonable suspicion [objective]: the police officer must be able to point to specific and articulable facts which taken together with the totality of the circumstances rational inferences [including officer’s past] from those facts, that criminal activity has, is occurring, or about to occur
1)    Empowers police to stop people based on innocent behavior that is often a precursor to more harmful criminal activity.
2)    Must be MORE than a hunch
b.       Dispatcher: When an investigative stop is made on reliance upon the information contained in a radio dispatch, the admissibility of evidence obtained after the stop turns on whether the dispatching officer possessed a reasonable suspicion to justify the stop. Hensley