Criminal Procedure

Week 2

U.S. CONSTITUTION

• PURPOSE

• WHICH GOVERNMENT IT REGULATES

• Bill of Rights

U.S. CONSTITUTION: DUE PROCESS

• BILL OF RIGHTS: LIMIT ON FEDERAL GOVERNMENT

• 14TH AMENDMENT: LIMIT ON STATE GOVERNMENT

INCORPORATION DOCTRINE

• RIGHTS ENUMERATED IN BILL OF RIGHTS ARE INCORPORATED INTO THE 14TH AMENDMENT CONCEPT OF DUE PROCESS AND THEREFORE APPLY TO STATES, EXCEPT FOR GRAND JURY AND BAIL

BILL OF RIGHTS AND CRIMINAL PROCEDURE

• 4TH AMEND: SEARCH AND SEIZURE

• 5TH AMEND: SELF-INCRIMINATION, DOUBLE JEOPARDY, GRAND JURY

• 6TH AMEND: COURT PROCESS

• 8TH AMEND: BAIL; CRUEL AND UNUSUAL PUNISHMENT

SUPREMACY CLAUSE

• WHERE CONFLICT BETWEEN FEDERAL AND STATE, U.S. CONSTITUTION IS SUPREME

• REMEMBER THAT 14TH AMENDMENT SETS MINIMUM STANDARD FOR POLICE

HYPOTEHTICALS

• 1. X a city police officer searches trunk of car for no reason. What laws are violated?

• 2. Y a security guard at K-mart stops a shopper because “he looked funny” and searches pockets. Finds marijuana. Can it be used in court?

HYPOTHETICALS

• U.S.Supreme Court says consent justifies a search. No prior advice of right to refuse is necessary. State X has a law that says after a traffic stop, police must advise person he has right to leave before asking for permission to search. In state X, police make traffic stop, write ticket and then ask for permission to search car. Driver says o.k. Police find drugs.

People v. Camacho

• Factual Dispute?

• Legal Issue/Question?

• Holding?

• Reasoning?

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 shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

EXCLUSIONARY RULE

• EVIDENCE OBTAINED IN VIOLATION OF CONSTITUTIONAL RIGHTS IS NOT ADMISSIBLE IN COURT (WITH SOME EXCEPTIONS)

• APPLIED TO STATES THROUGH 14TH IN CASE OF MAPP v.OHIO

EXCLUSIONARY RULE

• RESULTS FROM:• ILLEGAL SEARCH

• ILLEGAL SEIZURE OR ARREST

• ILLEGAL QUESTIONING

• ILLEGAL DENIAL OF COUNSEL

FRUIT OF POISONOUS TREE

• EVIDENCE INDIRECTLY RESULTING FROM UNCONSTITUIONAL ACTIVITY IS ALSO INADMISSIBLE

GENERAL RULE REGARDING ADMISSIBILITY OF EVIDENCE

• AS LONG AS OFFICER IS IN A PLACE WHERE HE OR SHE HAS A RIGHT TO BE, DOING WHAT THEY HAVE A RIGHT TO DO, WHATEVER EVIDENCE IS FOUND, IS ADMISSIBLE

INVESTIGATION--SEARCH AND SEIZURE

• 4TH AMENDMENT PROHIBITS UNREASONABLE SEARCHES AND SEIZURES

• 4TH AMENDMENT DOES NOT REQUIRE WARRANT BUT DOES SET STANDARDS FOR THE ISSUANCE OF A WARRANT

SEARCH AND SEIZURE

• 4TH AMENDMENT IS INCORPORATED INTO THE 14TH AND THEREFORE APPLIES TO STATES

SEARCH AND SEIZURE

• CONSENTUAL ENCOUNTERS

• DETENTION

• ARREST

• PAT DOWN OR FRISK

• FULL SEARCH OF PERSON, HOME OR PROPERTY

• TAKING PROPERTY

PROBABLE CAUSE

• REQUIRED FOR MOST SEARCHES (BUT NOT ALL)

• REQUIRED FOR ALL WARRANTS

• REQUIRED FOR ALL ARRESTS

PROBABLE CAUSE--SEARCH

• A REASONABLE PERSON, UNDER THE SAME OR SIMILAR CIRCUMSTANCES WOULD BELIEVE THAT IF HE OR SHE SEARCHES THEY WILL FIND WHAT THEY ARE LOOKING FOR

PROBABLE CAUSE--ARREST

• A REASONABLE PERSON UNDER THE SAME OR SIMILAR CIRCUMSTANCES WOULD BELIEVE THAT THE PERSON TO BE ARRESTED HAS COMMITTED THE CRIME

FACTORS TO BE CONSIDERED

• OFFICER’S OBSERVATIONS• FLIGHT• FURTIVE CONDUCT• PARTY’S STATEMENTS• FALSE OR IMPLAUSIBLE ANSWERS• ASSOC. OTHER KNOWN FELONS• PAST CRIMINAL CONDUCT• INFORMATION FROM THIRD PERSONS

OTHER MENTAL STATES

• HUNCH

• RATIONAL SUSPICION

• PREPONDERANCE OF EVIDENCE

• CLEAR AND CONVINCING EVIDENCE

• BEYOND A REASONABLE DOUBT

• BEYOND ALL DOUBT

ESTABLISHING PROBABLE CAUSE

• WARRANT: AFFIDAVIT IN SUPPORT OF WARRANT ESTABLISHES PROBABLE CAUSE

• NO WARRANT: IF QUESTIONED, OFFICER MUST JUSTIFY IN COURT THROUGH TESTIMONY

AFFIDAVIT

• STATEMENT UNDER PENALTY OF PERJURY, USUALLY IN WRITING

• MUST CONTAIN FACTS ESTABLISHING PROBABLE CAUSE

• CAN CONTAIN HEARSAY

INFORMANTS

• OFTEN FORM BASIS OR CONTRIBUTE TO ESTABLISHING PROBABLE CAUSE

• RELIABLE INFORMANTS

• UNTESTED INFORMANTS

• CONFIDENTIAL INFORMANTS

• ANONYMOUS TIPS

CONSENTUAL ENCOUNTERS

• CONTACT BETWEEN POLICE AND CITIZEN THAT IS NOT A SEIZURE OF PERSON UNDER 4TH AMEND.

• NOT A DETENTION

CONSENTUAL ENCOUNTERS

• CITIZEN IS– NOT OBLIGATED TO

COOPERATE

– FREE TO LEAVE

– BELIEVES THEY ARE FREE TO LEAVE

• EXAMPLES– INFORMING

RELATIVE OF DEATH– INTERVIEWING

WITNESSES– CASUAL

CONVERSATION

SITUATION

• MID-AFTERNOON, MIDDLE CLASS RESIDENTIAL AREA, POLICE SEE INDIVIDUAL WITH LONG HAIR, LONG BEARD, GRUBBY CLOTHES WALKING DOWN STREET. CAN THEY

• APPROACH FOR ANY REASON• ASK FOR I.D.• PAT DOWN• TAKE IN FOR QUESTIONING

SITUATION 2

• SAME SITUATION AS BEFORE, BUT POLICE HAVE RECEIVED CALLS FROM SEVERAL HOMEOWNERS THAT SOMEONE STRANGE IS IN NEIGHBORHOOD