Criminal Procedure I Outline
Professor Peden
Summer 2004
I. Fourth Amendment Issues
a. Three overarching concepts
i. Good Faith
ii. Reasonableness
iii. Expectation of Privacy
1. Government intrusion v. expectation of privacy
b. You have a right to be secure in your person, home, papers, etc. against unreasonable searches and seizures and warrants must have probable cause.
II. Do you have a Fourth Amendment Issue?
a. Is there government activity or is it a private entity doing the apprehension or search?
i. If private entity – then no Fourth Amendment issue
ii. If government activity – then there may be a Fourth Amendment issue
b. Is there an expectation of privacy?
i. If no – then there is no FA issue
ii. If yes – then you need to see if the person has standing
1. Standing
c. Was the type of government intrusion justified?
i. If no – then there is no FA issue
ii. If yes – then you must identify the type of justification
1. Was it an arrest/search warrant
2. Was it a stop/frisk
ARREST
d. If the intrusion was an arrest, you have to make sure there was the following
i. A warrant; or
ii. Probable cause without a warrant
1. In view misdemeanor
2. Probable cause for a felony
3. Probable cause exists where the facts and circumstance within the arresting officers knowledge and of which they had reasonable trustworthy information are sufficient n themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.
iii. If there was none of the above, then the arrest was bad at this moment
e. Was the arrest in public or in a house
i. Public – was there a warrant or probable cause
ii. House – was there a warrant or hot pursuit
1. Hot Pursuit – if you are on pursuit of a felon and they enter a house you can pursue them.
a. General rule – the requirement of a warrant does not apply in an emergency or “exigent circumstances” provided that the emergency was not created or readily avoidable by official action.
f. If there was a warrant, was it sufficient? (must have all of the following)
i. Based upon a complaint alleging probable cause
1. Informants – must be credible and reliable
a. Credibility – do they know what they are talking about
b. Reliability – past performance
i. Anonymous tips don’t usually provide this
ii. If you have an anonymous tip and verification – then you may have R/S
c. Gates Test – Totality of the Circumstances
i. Look at all the circumstances to make your determination
ii. Use in federal court and state court
iii. Broader than the Aguillar/Spinelli test
d. Aguilar/Spinelli Test
i. Two Prong Test
1. Reliability
2. Veracity
ii. Issued by a neutral and detached magistrate
iii. Sworn to
g. If the arrest was without a warrant, then it must be one of the following
i. Based on probable cause; or
ii. A misdemeanor in plain view
h. If it was only a detention and not an arrest, then there only has to be reasonable suspicion and not probable cause.
i. When is someone under arrest? (Note 32 p. 55)
i. An arrest requires either physical force or where that is absent, submission to the assertion of authority.
ii. Mendenhall Test – A person has been seized within the meaning of the 4th Amendment only if, in view of all circumstance surrounding the incident, a reasonable person would have believed that he was not free to leave.
iii. Officers cannot resort to deadly force unless they have probable cause to believe that the suspect has committed a felony and poses a threat to the safety of the officers or a danger to the community if left at large.
1. If an officer does, they have “unreasonably seized” and have violated the Fourth Amendment
2. High speed chases are not unreasonable
iv. The amount of force used in an arrest or detention must be reasonable. If there is excessive force then it is a bad arrest/detention.
v. The power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.
vi. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.
j. What happens when the police overstep their boundaries while arresting?
i. Exclusion – uses motion to suppress on the part of the defense counsel. The burden is on the defendant to raise the issue of unlawful police conduct. It is granted within narrow parameters
1. If you have a possession charge, that gets dropped when the item is suppressed
2. If the crime is of another type, the charge is not necessarily dropped
3. D files a motion to dismiss if it is questionable whether the charge will be able to proceed after the evidence is suppressed.
ii. 1983 Lawsuits
iii. Tort Lawsuits
iv. Tainted Evidence
1. Wong Sun v. US
a. Tainted evidence happens after an illegal act by the police. The question is whether or not you can clean up the taint.
b. The court has held that if a person voluntarily returns, it rids the evidence of the taint.
c. The Test
i. Whether the evidence was the product of a clear act of free will on part of D?
ii. Whether the evidence was the product of “deliberate exploitation” by the police
k. McNabb/Mallory Rule
i. Incriminating statements made by a D during period of unlawful detention between his arrest and presentation before a magistrate could not be used against him at trial
SEARCH
l. If the intrusion was a search it is governed by two things
i. Reasonableness Clause
ii. Warrant Clause
m. If there is a search with a warrant it needs all of the following
i. Probable cause
ii. Neutral and detached magistrate
iii. Sworn to
iv. Copy must be served/knock and announce
1. Knock and Announce Rule
a. Must knock
b. State who they are
c. State their purpose
d. Must give time to answer
e. SC has said that 30 seconds is a dotted line for a reasonable time to answer the door
f. Applies to both arrest and search warrants
g. Exception – if there is a threat of physical violence, sometimes it is justified enter without knocking and announcing in order to preserve safety.
v. Make a return on the warrant with the court and the defendant (inventory list)
n. The 4th Amendment requires a search warrant to enter the home of a third person in order to arrest a person for whom the police have an arrest warrant.
o. If there is a search without a warrant
i. They are per se unconstitutional
ii. All of the exceptions arise out of the reasonableness clause
iii. EXCEPTIONS
1. Emergency
a. Elements
i. Exigency
ii. Probable Cause
2. Incident to an arrest
a. Elements
i. Valid to an arrest
ii. Lunge Space
1. Area where D could get a weapon or destroy evidence
2. Buie Sweep – an area where someone else could attack fr
reasonable suspicion or probable cause at fixed points
2. More intrusive – need R/S
3. Most intrusive – need P/C
4. Roving patrols – treat them like regular cops as far as requirements
5. The border area includes
a. Land border checkpoints
b. All international ports of entry
c. Reasonable extended geographical areas in the immediate vicinity of an entry point
6. Strip Search – R/S
7. Patdown/search the car – nothing
8. Cavity search – P/C but not a warrant
iii. Schools
1. Searches conducted on reasonable belief or probable cause that a law or rule has been broken
2. When searches occur at the hands of someone who is not the police you must look at the scope
3. Camara
iv. Agencies
1. High regulations
2. Search limited to the agencies purpose (ex: can’t search an employees desk for weed)
6. Plain View
a. Elements
i. Must be in plain view
ii. Police must be there legally
iii. Criminality must be apparent
b. Coolidge
c. The police can not move an object in order to examine it more closely.
III. Warrant/Complaint
a. Rule 3 – the complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate
b. If the complaint does not state what the officer based his belief on, then the complaint is bad (Giardenello)
c. You must look at the complaint within the four corners of the paper and if the complaint is bad, you can not go on with the case
d. Information in a complaint alleging the commission of a crime falls into two types of categories
i. That in for which, if true, would directly I indicate the commission of the crime charged
ii. That which relates to the source of the directly incriminating information
e. The Fourth Amendment requests that a warrant be supported by oath or affirmation
f. A clerk can issue a warrant based on probable cause
g. If a valid complaint or valid warrant is issued the police do not have to execute it right away. They can wait no it but at some point the delay can become unreasonable.
IV. Exclusionary Rule
a. P can not use evidence or testimony that is gotten illegally or unconstitutionaly
b. So, if the search is bad then the evidence is out of the case
c. To determine the legality of the search, you look at the constitution
d. Remedial rule because it slaps the hands of the police
e. A seizure can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant.
f. The exclusionary rule does not bar the sue in the prosecution’s case if the evidence was obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but lacking probable cause.
V. Stop and Frisk (Terry)
a. Reasonable suspicion – articulable facts that would lead a reasonable police officer to suspect crime is going on
b. Two Steps
i. Detention – can only be long enough to confirm or dispel the suspicion
1. If an individual is moved by the police from one location to another it looks more and more like an arrest
2. If you are going to allow an officer to stop based on a suspicion of crime afoot, then you need to protect the cop.
ii. Pat-Down
1. If there is R/S for a pat down and as they pat the person down they feel what is obviously contraband/weapon then they can have it
