Criminal Procedure Course Outline
Bill of Rights
· First eight Amendments to the Constitution of the United States.
· The states are bound to follow these rules based on Due Process Clause of the 14th Amendment.
· Two Exceptions:
o Right to indictment by a grand jury
o Right to reasonable bail
· The 14th Amendment incorporated many of the rights in the Bill of Rights to apply not only to the federal government but ALSO to the states rights
o These Rights include the following:
§ 4th Amendment
· Prohibition against unreasonable searches and seizures and the exclusionary rule
§ 5th Amendment
· Prohibition against compulsory self-incrimination
§ 6th Amendment
· Right to a speedy trial, a public trial, and a trial by jury, to confront witnesses, to a compulsory process, to the assistance of counsel
§ 8th Amendment
· Prohibition against cruel and unusual punishment
o The Rights DO NOT include:
§ Right to grand jury indictment; or
§ 8th Amendment prohibition against excessive bail
Constitution:
· The baseline for all criminal juris prudence
· Grants the minimum rights allowed to individuals
o However, states can grant even more rights to individuals
§ But, never less than the constitution
· Courts can review constitutional issues on appeal based on the law and de novo (based on the facts)
· When answering question on exam think about the constitutional issues
o Is it a 4th, 5th, 6th, 14th Amendment issue
Fourth Amendment
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 issued, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons to be seized
The word privacy does not appear in this amendment
– Probable Cause
o Is the existence of trustworthy facts and knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime
o TOC
– Warrants (Search and/or Seizure):
o Search Warrant Rule:
§ All searches conducted with a warrant are presumed valid, all without are presumed invalid, unless there is an specific and well delineated exception that exists (examine BOP, for the suppression hearing)
o Requirements of a Warrant:
§ Issues by a neutral and detached magistrate
· does not need to be a judge or atty, they can be issued by a non-lawyer magistrate
· the issuing magistrate cannot be one that is in anyway attached to the case
§ An Affidavit was submitted which was supported by probable cause
· Affidavit= written application for a warrant
· You cannot orally amend the affidavit, but it can be re-done and come back and try again
§ The warrant particularly describes the place to be searched and the items to be seized
· Give as much physical description of the place to be searched as possible
· Must show that the items the police want to look for will be found in the place to be searched
o This requirement limits the scope of the invasion of privacy
o “Knock & Announce” Rule
§ law enforcement officers to announce their presence and provide residents with an opportunity to open the door
· 15-20 seconds is enough
§ This requirement can be overcome if the police can show that:
· Exigent circumstances existed
· evidence would likely be destroyed if advance notice was given
· Knocking and announcing would be dangerous or futile
§ In some circumstances a court can issue a “No-Knock Warrant”
§ Policy reasons:
· The provide safety for the officers themselves
· To protect the people inside and give them the possibility of complying with the government’s request to search
o Challenging the Validity of a warrant (very difficult)
§ A Franks Hearing, alleges that the information the officer used to convince the magistrate that probable cause existed was false or perjured or showed a reckless disregard for th
D whether the D knowingly exposed the trash
o Two Typical Searches:
§ Ones conducted pursuant to a warrant
· Warrant must show probable cause
o Use of informers:
§ Totality of the Circumstances (“TOC”) test
o Going “behind the face” of the affidavit
· A search warrant will be held invalid of it meets all prongs of the following 3 prong test:
o A false statement was included in the affidavit by the affiant (officer applying for warrant)
o Affiant intentionally or recklessly included the false statement; AND
o The false statement was material to the finding of probable cause
§ Ones conducted without a Warrant subject to a valid exception (ATSPACE)
· 1.) Exigent Circumstances Exception
o G has to show that probable cause existed for the search
o The G must also show that either:
§ There was a fleeing suspect
§ Loss or destruction of evidence OR
§ someone’s safety would be at risk (community caretaking)
· reviewed on a objective basis
o The ability to search without out a warrant under this exception lasts only as long as the exigency exists
o G cannot create the exigent circumstance
o The exigent circumstance will also justify G in detaining someone briefly
· 2.) Search Incident to a Lawful Arrest (SITLA)
o Incident to a lawful arrest, police may search the person (or the area within the arm span of the person) to obtain weapons (the search must occur contemporaneously w/the arrest)
o If a person being searched is in an automobile, the search may include the entire passenger compartment of car
Including glove compartment and arm rest
