joshua dressler

7/30/2019 Joshua Dressler

1/15

1

CRIMINAL PROCEDURE

Sum & Substance

Professor Joshua Dressler

I. INTRODUCTION: STUDY POINTS

Criminal procedure is about police practices and the methods by which the police go about

investigating crime. It deals with the limitations that the Constitution places on the police. In

short, it is a course in constitutional procedure.

There are two competing concerns in criminal procedure:

Crime.

Fear of governmental abuse.

Study Tip Criminal procedure is almost exclusively made up of United States Supreme Court

cases. For this reason, the following strategies may be helpful for the study of criminal procedure:

Learn case names.

Read concurring and dissenting opinions.

Notice the vote breakdown in the Courts opinion.

Notice who the justices are and how each typically votes.

II. GENERAL CONSTITUTIONAL DOCTRINES

There are three, relevant constitutional law doctrines: Retroactivity, Harmless Error, andIncorporation.

A. Retroactivity Doctrine.

1. New constitutional rules only apply to cases before a conviction is final.

2. Two exceptions:

a. If announced rule places entire course of conduct outside of the reach

of the criminal law.

b. If the new rule requires the observance of a watershed rule of criminalprocedure.

B. Harmless Error Doctrine. On appeal, a conviction will not be overturned simply on

the basis that a trial error occurred. It must be shown that the error was prejudicial to

ones rights.

1. Distinguish Between Constitutional and Nonconstitutional Errors.


2/15

2

2. Two Constitutional Errors:

a. Constitutional trial error: Apply Chapman Doctrine. The prosecutor

must prove beyond a reasonable doubt that the error was harmless.

b. Structural defect in the trial mechanism: Per se rule/conclusively

presumed prejudicial.

C. Incorporation Doctrine.

1. Bill of Rights places no limit on states. But, Fourteenth Amendment imposes

certain limits on state governments.

2. Fundamental Rights Doctrine: Most rights in criminal procedure are

fundamental rights and therefore apply to states.

III. FOURTH AMENDMENT

A. Overview. The Fourth Amendment guarantees protection in only four areas: Persons,houses, papers and effects.

1. Applies only to searches and seizures of protected interests.

2. Requires reasonableness.

3. Warrant Requirements:

a. Probable cause to obtain warrant.

b. Reliability through oath and affirmation requirement.

c. Particularity of place to be searched and items to be seized.

4. Additional Considerations:

a. Rights must have remedy (here, Exclusionary Rule).

b. Wrongdoer must be a governmental agent.

B. To What Does Fourth Amendment Protection Apply?

1. Persons.

2. Houses, including any place people live even temporarily.

3. Papers.

4. Effects. Virtually anything else, but does not include real property.


3/15

3

C. What Is a Search?

1. Katz v. US.

a. Fourth Amendment protects people, not places.

b. What a person knowingly exposes to the public, even at home or in theoffice, is not subject to the Fourth Amendment protection.

c. The Fourth Amendment is invoked if information is sought from one

who has tried to keep something confidential.

d. Harlans critical concurring opinion: A search is an intrusion on onesreasonable expectation of privacy.

i. Subjective expectation of privacy.

ii. Expectation must be both legitimate and reasonable.

2. Surveillance of Conversations.

A person does not have a reasonable expectation of privacy when he discloses

information to another person who may be a false friend, and it is similarly nota search if the false friend records or transmits the information to law

enforcement.

3. Open Fields Doctrine.

House and curtilage protected. No Fourth Amendment protection if he search

occurs in an open field.

a. Curtilage: Land surrounding and associated with the home.

b. Look to four factors:

i. Proximity.

ii. Whether an enclosure surrounds the house.

iii. Nature of use of the property.

iv. Steps taken by resident to ensure privacy.

4. No Expectation of Privacy In:

a. Financial information provided to the bank.

b. Phone numbers you dial.

c. Activities within curtilage that can be unintrusively observed from

public navigable airspace.


4/15

4

5. Advanced Technology.

Thermal imaging device used to detect heat in the home is a search, i.e., there is

a reasonable expectation of privacy.

Study Tip Factors used in determining borderline cases:

Nature of place observed.

Steps taken to enhance privacy.

How intrusive was police activity?

Degree to which surveillance requires a physical intrusion.

Nature of activity being observed.

D. What Is a Seizure? Two types: Property and Persons.

1. Seizure of Property.

a. Occurs when there is a meaningful interference with anindividuals

possessory interest in the property.

b. Police may only seize four types of property:

i. Contraband.

ii. Fruits of a crime.

iii. Instrumentalities of a crime.

iv. Mere evidence of a crime.

2. Seizure of Persons (see below under Terry v. Ohio).

E. Probable Cause.

1. Two Rules of Thumb:

a. All arrests must be supported by probable cause.

b. Searches or seizures must ordinarily be supported by probable cause,but there are many exceptions to this.

2. Probable cause: substantial basis (more than a mere suspicion).

3. What Type of Information Should a Police Officer Consider and Present to the

Judge to Ask for a Warrant?


5/15

5

a. Anything the officer personally observed is best.

b. Hearsay.

i. Appropriate under some circumstances.

ii. Two-pronged test (from theAguilar-Spinelli case, nowoverruled)

(1) Basis of knowledge of informant.

(2). Reliability of informant.

iii,Aguilar-Spinelli Today (Totality of Circumstances).

(1).Aguilar-Spinelli prongs remain critical. However,

today police do not have to present proof of both

prongs. Instead, underIllinois v. Gates, the strength

of one prong can compensate for the weakness orabsence of the other. The totality of thecircumstances of the hearsay information is key.

4. Probable Cause is an Objective Concept. The motives of the officer areirrelevant.

F. Warrant Requirement.

1. Overview.

Searches conducted without a warrant are per se unreasonable under the

Fourth Amendment, subject to specific exceptions, discussed later.

a. If there is a warrant, the defendant cannot challenge the police action

unless there is substantial evidence of three factors:

i. False statement in affidavit.

ii. Made intentionally or with reckless disregard for the truth.

iii. False statements led to the finding of probable cause.

b. Warrant must state person and property to be seized.

c. Warrant must be executed in a reasonable manner.

i. Knock and announce rule.

(1) Police must knock, announce intrusion, and request

admission.


6/15

6

(2) Three exceptions (only reasonable suspicion

required):

(a) Threat of violence.

(b) Threat of destruction of evidence.

(c) Entry in hot pursuit.

2. Arrests

a. There is no constitutional need for an arrest warrant if the arrest is

made in a public place.

b. An arrest warrant is required for nonconsensual entry into a personshome to complete a routine felony arrest. A doorway is public. If the

suspect retreats into house, entry is justified by hot pursuitexception.

c. To arrest in a third-persons home, police need an arrest warrant andasearch warrant.

G. Search Warrant Exceptions.

1. Exigent Circumstances.

2. SILA: Search Incident to Lawful Arrest.

a. For this warrant exception to apply, person must be taken into

custodynot just a traffic citation.

b. Scope:

i. Police may search the arrestee and the area surrounding

arrestee (the grabbing area).

ii. Purpose of search: to seize weapons and criminal

evidence that may otherwise be destroyed.

c. Variation: In a search incident to lawful arrest of an occupant, or

recent occupant, of a car, the police may contemporaneously search

arrestees person AND entire passenger compartment ofvehicle, and

all containers therein, whether open or closed, if the arrestee is withingrabbing area or, if he is not, the police have reason to believe the

vehicle contains evidence of the offense of arrest.

3. Motor Vehicle Exception.

a. For a search of a motor vehicle not incident to arrest, an officer may

conduct a warrantless search of the car if there is probable cause.


7/15

7

b. Motor home: Treated as a car if it is readily capable of use as a vehicle

and not in a place regularly used for residential purposes.

4. Car or arrest inventory search.

a. Legitimate reasons to inventory without warrant or probable cause:

i. To protect car owner or arrestee against theft of property.

ii. To protect police against false claims of theft.

iii. The right to look for dangerous instrumentalities that could

endanger police or others.

b. Warrant exception only applies when there is some existing written

inventory procedure.

5. Plain View, Plain Touch Doctrines.

a. Justifies only warrantless seizures, not searches.

b. Three conditions must be met:

i. Officer observed object from lawful vantage point.

ii. Officer had access to the object from lawful vantage point.

iii. Officer had probable cause to seize.

6. Validly Obtained Consent.

a. In these questions, ask:

i. Was consent voluntary? Based on totality-of-circumstances.

Knowledge of the right to refuse consent is not a prerequisite.

ii. Did officers actions exceed scope of consent given? If so,search invalid.

iii. May a third person consent? Yes, if the third person hasjoint possessory interest in the property in question and the

other person is not present to object.

iv. What if mistaken about persons ability to consent? Apparentauthority doctrine: If a person has no right to consent (they do

not have a possessory interest in property), consent is still

valid if officer reasonably believed person had authority to

grant consent.


8/15


9/15

9

ii. The search is not too intrusive in light of the age and sex of

the child and offense investigated.

d. Drug and alcohol testing without warrant or suspicion is sometimes

allowed. Factors to consider:

i. Testing is done in an occupation pervasively regulated by the

government.

ii. There is a strong connection between the job requirement (or

the school activity) and employers or schools concern.

iii. Testing is done randomly.

iv. Empirical evidence of the need for such testing.

v. Measures taken to ensure dignity of person tested.

IV. STANDING

A. When Can a Person Make a Fourth Amendment Challenge?Does an individual

seeking to have evidence excluded have standing to challenge the police conduct?

B. Only If He Is a Victim.

1. One is a victim if he has a legitimate expectation of privacy in the invaded

place.

2. Ownership of the property seizeddoes not entitle one to standing to contest the

search resulting in the seizure, unless the person has a legitimate expectationof privacy in the area searched.

3. A person has standing to contest a search if he is an overnight guest in another

persons home.

4. A person may have standing to contest a search, even if not an overnight

guest, if he has a substantial connection to the home.

V. EXCLUSIONARY RULE

A. Two Purposes:

1. Judicial integrity. No longer applicable.

2. Deter police Fourth Amendment violations.

B. Rule. In purest form, it provides that evidence directly obtained as a result of a Fourth

Amendment violation, as well secondary evidence that are fruits of the poisonous tree

are inadmissible at the defendants trial. But, this rule is subject to limitations.


10/15

10

1. The rule only applies to evidence introduced in theprosecutors case-in-chief,i.e., the exclusionary rule does not apply for purposes of impeachment.

2. Also, if a warrant is obtained, the exclusionary rule does not apply, although

the warrant was invalid, if the police acted on the basis of an objective good

faith belief that the warrant was valid.

3. The rule does not apply to evidence obtained by means of a valid warrant,

although the warrant was executed unconstitutionally, in violation of the

knock-and-announce rule. This is because the purpose of the latter rule is not

to help a citizen shield information from the government.

4. UnderHerring, mistakes by the police that are the result of mere isolated

negligence, rather than systemic error, reckless disregard of constitutional

requirements, or intentional misconduct, will not result in suppression of

evidence, even in non-warrant cases.

C. Fruit of the Poisonous Tree.

1. Exclusionary rule, when applicable, extends to direct and indirect products of

the violation.

2. Exceptions:

a. Independent source doctrine: if the secondary evidence was actually

obtained as a result of an untainted source.

b. Inevitable discovery rule: if the prosecutor proves by preponderance

of evidence that the police would have discovered the evidence even if

they had not violated the Fourth Amendment.

c. Attenuated connection doctrine/Wong Sun Rule. If the secondary

evidence is no longer tainted by the original violation. There are

factors to consider in this regard.

i. Temporal proximity/length of causal chain.

ii. Subsequent acts of free will.

iii. Flagrancy of violation.

iv. Totality of the circumstances.

VI. ENTRAPMENT

Not a constitutional law doctrine, but a criminal law defense; nevertheless covered in

many criminal procedure classes and texts.

A. Two Tests: Subjective and Objective.

1. Subjective (Federal and Some States).


11/15

11

When a governmental agent induces an innocent (not predisposed) person to violate the

law.

2. Objective (Some States).

Would police inducements have caused a hypothetically law-abiding citizen tocommit the crime?

VII. POLICE INTERROGATION

A. Fourteenth Amendment Due Process Clause. What form of process is a person due

when interrogated by police? Due process is violated if a statement is obtained by the

police involuntarily. Remedy: Statement is inadmissible at trial.

1. Determination of involuntariness is based on the totality-of-circumstances,

taking into consideration the conditions of the interrogation (e.g., whether

force was used, length of time, whether the suspect received or was denied

food and water, etc.) and characteristics of the suspect (e.g., age, mentalcondition, etc.).

B. Fifth Amendment Privilege Against Self-Incrimination. No person shall be

compelled to be a witness against himself.

1. This right now deemed a fundamental right, applicable to the states.

2. Although the first case in this area applied a strict test of compulsion, over

time the Supreme Court has treated this right similarly to the Due Process

Clause.

3. The Fifth Amendment is not violated unless the coercedconfession is used incourt, whereas the Due Process Clause is violated as soon as the confession

is obtained involuntarily, even if the statement is not used at trial.

4. The Fifth Amendment Exclusionary Rule is absolutethe coerced statementcannot even be used for impeachment purposes.

C.Miranda v. Arizona. Any statement obtained as a result of custodial interrogation may

not be used against the speaker unless the prosecutor proves that police used certain

procedural safeguards (the so-called Miranda warnings) to preserve the defendantsrights pursuant to the Fifth Amendment privilege against self-incrimination.

1. States are free to provide alternative guidelines, if they provide equivalentinformation.

2. Otherwise, states must followMiranda:

a. Police must state clearly and unequivocally that suspect has the right

to remain silent.


12/15

12

b. State the consequences of giving up that right (anything said can and

will be used against defendant).

c. Inform the suspect of the right to consult with a lawyer and to have

lawyer present during interrogation.

d. Inform the suspect that a lawyer will be appointed at no cost toindigent suspect.

3. Suspect may waive his rights.

4.Dickerson v. US: Despite the Supreme Courts description of theMiranda

ruling as a prophylactic rule, the Court Stated in this case thatMiranda is aconstitutional rule. Therefore, legislation seeking to overrule it was

unconstitutional. Nonetheless, a violation ofMiranda is not treated by the

Court as a per se violation of the Fifth Amendment.

5. When dealing withMiranda, ask:

a. Was the defendant in custody?

i. In custody means under arrest or tantamount tobeing under arrest.

ii. Ask: Would a reasonable person in the suspectssituation believe he is tantamount to being under arrest? The

hidden intention of an officer to take the person into custody is

not the issue.

b. Was there interrogation?

i. Express questioning constitutes interrogation.

ii. Also, the functional equivalent of interrogation qualified: any

words or conduct by police that they should know are likely to

result in an incriminating response constitute interrogation.

6. Waiver.

a. The prosecutor must prove by a preponderance of the evidence that:

i. The waiver was voluntary.

ii. Waiver was knowingly and intelligently made.

b. An express waiver is not required; the waiver may be implicit.


13/15

13

7. Effect of asserting rights.

a. If a person asserts the right to silence, police must stop asking

questions and scrupulously honor the right. No bright-line rule.

When analyzing these cases, ask:

i. For how long did policed honor silence?ii. Was suspect re-Mirandized?

iii. Did officials come back and talk about the same crime?

iv. Did different officers know about the earlier assertion of right

to be silent?

b. Invocation of right to consult with attorney. UnderEdwards v.

Arizona, if suspect invokesMiranda right to consult with attorney, then

the suspect is not subject to further interrogation until suspect has an

attorney present, unless suspect himself initiates further discussions

about the crime.

i. This rule only applies if the suspect unambiguously asserts the

right to counsel.

ii. If the suspect is released from custody, then the police may

seek to re-interrogate the individual after 14 days.

8. Exceptions toMiranda (when statement is admissible although custodial

suspect was interrogated without warnings):

a. Public safety exception (if there is an emergency, the police may ask

questions, at least briefly, without warning the suspect).

b. Covert custodial interrogation exception (if the suspect does not know

that the person interrogating her is a police officer).

c. Routine booking exception (questions asked during booking, unless

the intention was to obtain an incriminating response).

9. What Is Scope ofMiranda Exclusionary Rule?

a.Miranda-less statement can be used for impeachment purposes.

b. A fruit of aMiranda violation may be introduced at trial, with oneexception

i. One fruit situation does invoke fruit-of-poisonous doctrine:An official purposely violatesMiranda, gets confession, then

givesMiranda gets waiver, continues interrogation until he

gets the same confession, and then seeks to introduce second

confession


14/15

14

D. Sixth Amendment right to counsel. In all criminal prosecutions, the accused has the

right to counsel in his defense.

1. Points to remember.

a. Prosecution means it is not triggered until formal judicial

proceedings begin.

b. UnlikeMiranda, there is no custody requirement. The defendant can

be out on bail or otherwise free.

c. Applies only when the police deliberately elicit an incriminating

statement.

d. UnlikeMiranda, right is crime-specific. If indicted for crime X but not

crime Y, the person can be questioned about Y without counsel.

3. Waiver.

a. Covert interrogation: No way one can waive right to counsel.

b. Overt interrogation: One may waive right to counsel.

i. If defendant asks for counsel at arraignment, the police may

still seek to interrogate the accused, as long as they obtained an

otherwise valid waiver. Valid waiver afterMiranda warnings

is sufficient to constitute waiver of both theMiranda right to

counsel andthe Sixth Amendment right to counsel.

ii. If the defendant requests counsel at the time of the police

interrogation, thenEdwards v. Arizona applies (see theMiranda discussion above).

VIII. PRETRIAL IDENTIFICATION PROCEDURES

A. Cases Involving Pretrial Identification.

1. Distinguish Between Two Constitutional Rights:

a. Sixth Amendment Right to Counsel.

b. Due Process Clause.

2. Types of Identification.

a. Corporeal (line-ups, and one-on-one identifications).

b. Non-corporeal (witnesses shown photographic displays).


15/15

15

B. Sixth Amendment Right to Counsel.

1. One has a Sixth Amendment right to counsel at any corporeal identification

procedure after indictment or arraignment.

2. No right to counsel for noncorporeal identification procedures at any stage,

and no right to counsel for corporeal ids before indictment or arraignment.

3. Defendant can waive right.

4. If there is a Sixth Amendment violation, evidence of the pre-trial identification

is not admissible at trial, and an in-court identification is also barred unless the

prosecution can prove by clear and convincing evidence that the in-court

identification is not tainted by the out-of-court identification.

C. Due Process Clause.

1. Right applies at all stages (before or after indictment), to all identification

procedures (corporeal or noncorporeal).

2. Due Process Clause is violated if the procedure was unnecessarily suggestive

and it can be shown that there identification is unreliable.

3. Remedy for Due Process violation is the same as with right-to-counselviolations.

IX. RIGHT TO COUNSEL AT TRIAL

A. Felony Cases. A defendant has a constitutional right to counsel in all felony cases.

B. Misdemeanor Cases. A defendant has a right to counsel in any misdemeanor case

where a jail sentence will in fact be imposed if a conviction occurs.

C. Right of self-representation. A defendant has an independent right to represent

himself at trial, as long as the defendant is competent to make the decision. This is not

just the right to waive counsel, but a separate constitutional right of self-

representation.

joshua dressler

Documents