Criminal Procedure
Procedures To Know:
Pre-trial motion to suppress—exclusionary rule
Throws out evidence illegally obtained
Unless it was would have been inevitably discovered
Must file the motion in order for evidence to be excluded; if you don’t you lose it.
Direct Appeal—State courts have automatic appeals; in order to appeal to US Supreme Court you must file a writ of certarori
Writ of Habeus Corpus—used by those who have been convicted to challenge incarceration
Fourth Amendment and Seizure of the Person
Due process clause was made to tell states they cannot deprive citizens of life, liberty, or property.
States can give you greater protection than the federal government, but they cannot give you less.
The Fourth Amendment can be broken down like this:
Minor League Search and Seizures—Terry Searches and SeizuresàReasonable suspicion
Major League Search and Seizures—Arrests, equivalent of arrest, full-blown criminal searchesàProbable Cause and Warrant or Warrant Exception
Administrative Searches and Seizures
First thing—figure out if it’s a search or a seizure. Don’t need to tell him, just figure it out. Is there a government actor? Does the D have standing? Most of the time the answer to these will be yes.
If it’s a search was a reasonable expectation of privacy violated? Was the D’s reasonable expectation of privacy violated?
Was there a warrant
In order to talk about fruit of the poisonous tree there must be a 4th amendment violation and the evidence that is going to be suppressed must have been received by a 4th amendment violation. But for the 4th amendment violation, they wouldn’t have found the evidence.
Real Stuff
Fourth Amendment
Terry Seizures of the Person—Terry Case—Minor League Seizures—physical force and show of authority—when movement is restrained or when a reasonable person wouldn’t fell free to walk away or wouldn’t feel free to not cooperate—they’ve been seized. Did they grab the D? Did they yell stop and you stop? These are seizures.
1. Hodari Case—A show of authority is not enough for a seizure, you must also have submission; you must submit to the show of authority.
2. Refusal to give consent, without more, is not grounds for probable cause.
ii. Seizures short of an arrest—Brief investigative detention (like what happened in Terry)
1. Seizures are separate from searches.
2. Time Limit—Extended detentions are OK if reasonable. It’s reasonable if the police act as diligently as they could have (the case where the police pull over two cars and they have to gather the information in order to question the other guy so he was “seized” for twenty minutes and it was OK. However, when the police, took over an hour to get drug-sniffing dogs to LaGuardia it wasn’t alright b/c they knew the man was coming and they could have had the dogs there already—they were not diligent enough.
3. A high-crime area and an unprovoked flight can be grounds for reasonable suspicion of criminal activity—Totality of the Circumstances—unprovoked flight alone is not enough for RS
4. There’s no fourth amendment issues if there’s not a search or a seizure
5. What is reasonable? There is a balancing test. Weigh the Degree of Intrusion versus the Governmental Interest. (DI v. GI)
a. Degree of Intrusion—Was it a brief detention or were they held for hours?
b. Governmental Interest—Will this prevent crime? Is it an issue of officer safety?
6. In order to seize someone you must have reasonable suspicion of a fair possibility of criminal activity (Substantially less than a preponderance of the evidence needed for probable cause).
a. Must be more than a hunch.
b. Must have specific and articulable facts inferred from the situation.
c. The totality of the circumstances must equal reasonable suspicion.
Terry Search of the Person—The rationale the officer must have for a search is a reasonable suspicion of a fair possibility (substantially less than a preponderance of the evidence) the person is armed and dangerous. You couldn’t frisk someone you thought was involved with check fraud—it’s not likely they would have a gun.
i. TERRY Frisk
1. Limited frisk (minor league search)—if reasonable suspicion that suspect is armed and presently dangerous
2. Terry frisk is for weapons only—external pat down
3. Reasonable suspicion must be individualized to person involved—not a “group” (Cortez)
ii. You Can only look for weapons with a brief pat-down of the outer clothing—including crotch
iii. Can only last long enough to ver
protective sweep, they must have reasonable suspicion there is someone there who’s a danger to the officers, armed and dangerous (anyone who you believe could cause harm, you can look for)
Seizures other than Terry
i. SummersàCops tell Summers he can’t leave while cops search for drugs. This is a minor intrusion, but not the same as Terry, so the court looked at the balancing test. Is the personal intrusion greater than the governmental interest? No he was on his own couch, in his own home, with his own TV. The governmental interest was not that high. There was a slight risk of harm, there was a risk of flight, but it was good for him to be there so he could help with the search (open a locked chest rather than the police breaking it).
ii. YbarraàYbarra went too far though. Cops have evidence bartender is selling heroin. Cops go to bar and search everyone in the bar. There is not individualized suspicion. The personal intrusion is greater than the governmental interest. This was a public place; if it occurred in a crack house it would be different. You have a higher expectation of privacy while at a bar compared to a crack house.
iii. Continuing detention is OK if reasonable, and the length of the detention is not caused by the cops lack of diligence.
Arrest and the equivalent—probable cause (PC) is the level of suspicion needed for a major league seizure (arrest or equivalent of an arrest).
i. DunawayàThe issue was whether it was a Terry stop or an arrest. The police picked up D without grounds for an arrest, but with reasonable suspicion for a Terry stop. They took him to the station, questioned him, and read him his Miranda rights. When the courts added all of this up they said it equaled an arrest, and therefore they needed probable cause—the evidence gained will probably be suppressed.
