Criminal Procedure

When a person is taken into custody by lawful authority, for the purpose of holding him in order to answer for a criminal charge. Must have probable cause.

When the individual, in the presence of a law enforcement officer, is not free to leave, and thus deprived of his freedom of action in a significant way.

1. Looking from the vantage point of a trained officer.
2. Looking at the totality of the circumstances.
3. Whether a reasonable person could find that a crime has been committed and this person committed the crime.

When dealing with Terry, was there criminal activity afoot, and there was an indication of danger. A traffic violation constitutes criminal activity afoot.

1. With a warrant issued by a judge based on probably cause.
2. An officer can arrest without a warrant for a felony that did not occur in his presence.
3. Without a warrrant for a misdemeanor or felony that has occurred in his presence.

If you can show that the officer arrested without probable cause (legal authority), then the arrest is illegal. Court still has jurisdiction and defendant may still be subject to trial.

No, but a civil action may still lie.

-The vantage point of a trained officer
-Looking at the totality of the circumstances
-Whether a reasonable person can find that a crime has been committed.
-The evidence of the crime is in the place that I want to search
-Can only search if arrest is legal
No warrant needed, but must have at least probable cause.

-When a person would reasonably by physical force feel that their freedom of movement is restrained. Either when the police use physical force or when you halt to a police's command.

Exclusionary Rule- Any evidence obtained from an invalid arrest will be excluded from trial. It can be used in grand jury hearing, preliminary hearing, bail proceedings, and sentencing.
-Burden is on def. to show that the gov't had no probably cause.

Where a police officer has a reasonable articulable suspicion that a suspect is armed and dangerous, he may, without probable cause, perform a pat-down search for concealed weapons.

-Weapons only- evidence must be reasonably believe by the officer to be a possible weapon before the frisk is made.
-ID alone insufficient-an officer cannot, without probable cause to arrest, stop and frisk an individual on the street for mere failure to show identification.
-Suspicion based on hearsay sufficient-A hearsay tip from an unnamed informant may justify a weapons search by police prior to an arrest.
-investigating past criminal activity-a terry stop based on less than full probable cause is permitted where the detainee is suspected of involvement in a past crime constituting a felony or a threat to public safety.

An arrest is a long term detention-a loss of freedom for a substantial amount of time and you need probable cause

A terry stop and frisk is temporary, it can escalate to an arrest and then a search. You need a reasonable articulable suspicion.

Probable cause is a fluid concept


Reasonable Suspicion is less than probable cause. Does the concept of reasonable suspicion change from case to case or remain constant.

- an encounter which does not reach the level of a seizure within the meaning of the fourth amendment, so that the prosecution need offer no justification for the encounter at all in order to satisfy the fourth amendment. Not being seized and can lead to a terry stop
-Terry Stop requiring reasonable suspicion. Being seized but not at the level of arrest, can lead to an arrest.
-An arrest requiring full probably cause. being seized, freedom of movement deprived, taken into custody

-fruits of the crime (money from bank robbery)
-instrumentalities of the crime ( 5rob somebody with gun)
-contraband (unlawful to possess)
-evidence incriminating of the offense embarrassed

A person without a warrant, for a misdemeanor and a felony if occurred in the presence of police officer

A person for a felony

-Based on time limit
-Staleness can negate probable cause
-Probable cause is based on the location of where the item may be

The right of the people to be secure in their own persons, houses, papers, and effects, against unreasonable searches and seizures

A court order to arrest or search a person or place. Arrest warrant must describe person and as many things we need to know about the person. With search warrant, must list place being searched and what is being looked for. Must have signed affidavit.

Needed for a warrant. Only information within the 4 corners of affidavit will be used to determine whether or not officer has probable cause. Is a sworn statement, must be signed by judge and have supporting facts

Reliability is often established by an allegation in the affidavit that on a specified number of occasions the tipster gave information to the police about criminal activity, which was true. Is usually a criminal and given payment, concession or revenge against the subject.

Ordinary citizen who reports a crime which has been committed is evaluated from the nature of her report, her opportunity to hear and see the matters reported and the extent to which it can be verified by independent police investigation

When an officer receives a report from an out of court declarant. Declarant tells officer what he saw and the officer has no first hand knowledge and he relies on the information orally or written.

A. Aguilar and Spenelli (old test) 1. How does informant know the information. Need to be satisfied that informant has first hand personal knowledge or informant has really specific details. 2. Why is this person or information reliable? Goes to credibility of informant (has been used before, has a good track record)

B. Gates test (new test) Judge looks at the totality of the circumstances

-Knock on the door
-Announce that you are police
-Wait a reasonable time to see if you would be let in
-if no refusal you can use reasonable force to let yourself in and you can seize any evidence that can be used to convict (refusal not restricted to a negative refusal)
-warrant has to be signed and dated
-list all seized items
-in most jurisdictions, every use of force is reasonable.

Finding that the warrant was invalid because it is not supported by probable cause will not entitle a defendant to exclude the evidence obtained under the warrant, evidence obtained by police in reasonable reliance in a facially valid warrant will not be suppressed.

When one part of the warrant is valid and another is not, the court may sever the warrant allowing evidence seized from the valid portion of the warrant to be introduced as evidence and disallows evidence from the invalid part.

-Search incident to a lawful arrest
-stop and frisk (terry stop)
-Plain view
-Automobile exception
-consent
-hot pursuit
-exigent circumstances

A. Protective Sweep (incident to arrest/execution if arrest warrant) quick look at the premises for the safety of the officers (looking for people that could harm

B. Protective Search (done during a terry stop) A non-invasive search, done only for safety

C. Full search (incident to arrest/execution of arrest warrant) You need probable cause, a full seizure of the person, can include cavity and strip searches.

- Reasons for search (destruction of evidence, escape of arrestee, protection of an officer)
-Arrestee's person
-Arrestee's wingspan, lunging area, or grabbing area. Wingspan includes car and if arrested in home, room arrested in including closets and other spaces immediately adjoining place of arrest from which an attack could be launched. (exception to warrant clause in 4th amendment)
-once you take a person out of the car or room, there is no right to do search. You must get a warrant and come back.
-companion searched only for safety
-person subject to lawful arrest may be suject to search even if no contraband in hand (exigent circumstances)
-Burden is on prosecution to justify warrantless search

-search after arrest- search must

-a search incident to arrest must, in time and place, be substantially proximate to arrest

Delayed/Second Searches
Rule that the search must be substantially contemporaneous with the arrest has not been applied rigorously. Searches conducted during transport to police station and at the station have been upheld

Warrant needed to admit to evidence
-applies to person that has been lawfully arrested or a vehicle that has been lawfully impounded
-take an inventory of everything found on person or in car (what officer sees)
-for safety and liability
-done by law enforcement officers when a person is taken into custody or a car is impounded (including locked components) and they have to give person a copy of what they have taken
-Done to preserve property, guard against claims of theft/vandalism/police negligence, avert danger to police and others, police need not give person opportunity to make other arrangements

-intended to serve some governmental regulatory purpose or special need other than the capture of criminals or discovery and seizure of evidence for use in a criminal trial
-done to everybody usually done for protection, ie airport, courthouse
-reasonableness requirement of 4th amendment sometimes demands they be carried out with prior judicial approval.

-no warrant needed to search
-search and seizure ramifications
-if person puts articles in public domain, they have given up right to privacy

_searches at the scene: police officer can conduct an immediate warrantless search of auto that he has probable cause to believe has contraband, fruits, evidence, or instrumentalities of crime if stops car on highway or is readily capable of use on the highway

-away from the scene- may seize a car w/o searching it, move to another site and search w/o warrant up to a few days later

-if there is probable cause for vehicle, whole vehicle may be searched
-Not dependent on search warrant
-if parked in public place, may be sniffed by police dogs
-car in driveway may be searched/in garage you need warrant

If item cannot be found in that container, you cannot search that container.
-if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal object of search

-if person gives consent voluntarily, it is deemed reasonable under the 4th amendment
-If officers come across an item they have probable cause to beliee is contraband or evidence of the crime in an area they have the right to inspect, they can seize the item.

-landlord cannot consent for tenants apt. to be searched, but an adult living at home and mom still cleans room, mom may give consent
-motel owner can't give consent
-employer can't give consent over an employee's private storage area
-school officials may search student under their authority upon showing reasonableness under circumstances.

-Was there voluntary consent
-did consenting party have sufficient authority to make it reasonable for officers to search based on his or her consent.

-if there is no party who has sufficient authority to grant consent, search of property is illegal as to all persons who have a reasonable expectation of privacy as to the place searched
-one or more persons have an interest in real or personal property and a warrantless search is valid if based on consent of one of the persons that possesses common authority.
-ask whether it was reasonable to conduct a search under his consent.

-subject to some exceptions, officers are generally allowed to seize criminal evidence or contraband which they spot in plain view
-does not require search warrant if officer has right to be there, where there is authority to seize or there is probable cause.
-does not allow officer to go into someone's home unless exigent circumstances

-pre-intrusive-refers to items that are seen w/o the benefit of a search

-post-intrusive-follows 4th amendment activity

extends to smell, hear and feel

-plain view observations and seizures are unlawful if vantage point for observation was gained thru intrusion that violates 4th amendment
-may be lawful, but if further intrusion (entering house) is necessary before items can be seized intrusion is not justified.
-items seen in plain view can't be seized and carried away absent probable cause to believe the items are contraband or evidence of a crime
-is impermissible if the original viewing violated a reasonable expectation of privacy even if there was no trespass.
(overheard convo in hotel hallway violates no reasonable expectation of privacy, same as police looking thru undraped window while standing in parking lot
-flashlights are an exception
-intercepting a cordless phone call is not a search/no reasonable expectation of privacy

-can justify a warrantless entry of a home to make a felony arrest or conduct a search related to a serious offense under the the following circumstances: hot pursuit of a fleeing felon, imminent destruction of evidence, the need to prevent a felon's escape or risk of harm to police or others.

Held that officers must have a warrant to enter a dwelling to arrest a person, but the decision to specifically excluded exigent circumstances.


Factors to be considered: relative peacefulness of entry, time of day or night when entry is made (important depending on facts of case), seriousness of the crime, probability that suspect is armed, danger of flight, delay which would be occasioned by application for a warrant, probability beyond min. requirement of probable cause that def. is guilty, probability that suspect is within the home which is to be entered

4th amendment prohibits police, absent exigent circumstances, from making warrantless/nonconsensual entry into a suspect's home to make a routine felony arrest

A warrantless search is lawful when police are pursuing a dangerous suspect to apprehend him and they may seize mere evidence as well as any contraband found

may enter and search a private dwelling while in reasonable pursuit

-Initial hearing
-Custodial interrogation (based on 5th and 6th) amendmend
-post-indictment lineups
-preliminary hearing
-arraignment
-pre-trial motions
-felony trials
-misdemeanors where imprisonment is actually imposed (probation revocation hearing)
-sentencing
-appeals as a matter of right

-preliminary identification procedures
-gerstein hearing (has to be asked for)
-police lineups prior to indictment
-non-adversarial detention hearing
-grand jury proceedings
-discretionary appeals
-probation and parole revocation
-habeas corpus proceedings

Statement that involves incriminating statements regarding the totality of the acts constituting a crime (admitting you did it) Can be oral, gesture, written, videoed or audioed.

Must be voluntary and authentic.

Statements that involve a slice of incriminating incidents that constitutes a crime. (not admitting you did it, but is admitting that you were present, know who did it, etc)

It came before Miranda
Whether under the totality of circumstances a reasonable person would believe consent was voluntarily granted.
-in order for some statements to be admitted into court, some judge had to rule statement was voluntary

When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way, he must be warned prior to any questioning that he has the right to remain silent, anything he says can be used against him in the court of law, right to presence of an attorney, an attorney will be appointed prior to questioning if he cannot afford one and he may waive these rights.

Unless a knowing and intelligent waiver of rights are demonstrated by the prosecution, no evidence obtained as a result of a subsequent interrogation can be admitted against an accused.

Terry stop does not require Miranda rights.

When an individually is physically confronted by police or judicial authority where their rights may be affected, such that a lawyer is required.

critical stage
where police know or should reasonably know that their actions or inquiries are reasonably likely to elicit an incriminating response from the suspect.
Place of interrogation is vital, usually police station is custodial
-interrogation at suspect's place of business, home usually considered non-custodial because of familiarity
Also look at time of interrogation, persons present at the interrogation, and indicia of arrest
Questions asked during booking of suspects by the booking officer are usually held to be non-interrogative
must be given warning and must give waiver

1. Voluntariness approach- to be admissible a statement must be voluntarily made based on the totality of the circumstances (5th and 14th amendment)
2. Miranda Standard-statements made during custodial interrogation are inadmissible in the absence of Miranda warnings-5th amendment priv. against self-incrimination
3. Right to Counsel Approach- statements made during any critical stage of a criminal proceeding are inadmissible unless the def. is afforded the right to counsel- 6th amendment right to counsel
4. Fruits of Illegal conduct- even vol. statements obtained as fruits of prior illegal searches and seizures are inadmissible- 4th amendment exclusionary rule

When you are under arrest

Any lineup, showup, photo id, 2nd sighting, or court id will be inadmissible as violative of due process where the id is unnecessarily suggestive and conductive to irreparable mistaken id.

Reliability-where an id is both suggestive and unnecessary, it can still be admissible if it is reliable based on a totality of the circumstances: opportunity to view the criminal at the scene, witness's degree of attention, accuracy of the witness' descriptions, degree of certainty of the witness and time interval between crime and id. balanced against the degree of suggestiveness.

You may have several people in a line up, with a witness, and the witness attempts to identify the culprit. Must be 5 to 8 people.

Witness is given a number of photographs and she has to identify her assailant.

No right to counsel
When the suspected criminal is shown to the witness shortly after the crime. Only one person is show to witness. Riding by in a car to see a person handcuffed with police is a showup.

When you see a person for the second time after a crime has been committed.

When a witness identifies a person in court.

Inadmissiblity of a previous out of court id made at a lineup does not bar the witness from making an in-court id of the accused at trial where the prosecution can clearly and convincingly show that the subsequent id stemmed from an independent, purging source.

The right to counsel basis
After prosecution has begun, the defense is entitled to have counsel present because the lineup is a critical stage of the criminal proceedings.
After a def. is in custody under warrant or only upon indictment.

Lineups, fingerprints, handwriting samples, voice samples, DNA samples, the argument is all of these things when used against a suspect are really a form of self incrimination. Sup. ct says self-incrimination applies to testimonial evidence and not this.

Gov'ts last catch safety valve
You see the person repeatedly and often in other sources
Factors considered: prior opp. of witnesses to observe the criminal act, existence of a discrepancy between any pre-lineup description and the actual appearance of the accused, any id of another person prior to lineup, failure to id the accused on a prior occasion, lapse of time between the criminal act and the lineup id, prior photographic id from a large group of photographers, the acquaintance of witness with the suspect, ability and training at id, exercise of unusual care to make observations and prompt id at first confrontation

Non critical stage
-An administrative procedure recording the arrest
-At this time certain ids and evidenciary tests are performed (ie blood sampls, fingerprints, photos)
neither right to counsel nor the privilege against self-incrimination apply

critical stage
first time in court
clerk of court
-tells def. what they are charged with and gives the copy of charge sheet. Gives warnings similar to miranda, attorney retained or gov't pays for one,
bail set- no excessive bail (8th amendment) has to be reasonably fair
No right to bail Bail may have conditions and is given based on are you likely to reappear for trial or are you dangerous

Critical stage
-Adversarial procedure used to determine probable cause to prosecute
-presentation of evidence is allowed by both sides and the def. may assert ant of her defenses
-mini-trial with witnesses
-hearsay is admissible
-def. may waive right to prelim. hearing
-chain of custody-bringing evidence into court. has to show these things are the same things taken from def. and where it has been since it has been taken
-illegal search cannot be raised
-standard is probable cause that def. committed crime. if yes, hold case for Grand jury

in situations where a def. is arrested w/o a warrant or prior indictment, there exists a 4th amendment right to a hearing to determine probably cause to detain.
-arises only where significant restraints on the def.'s liberty are present
-hearsay is allowed
-informal and non-adversarial/no right to counsel
def. must ask for hearing and gov't must show probable cause.
-may be conducted in def.'s absence

Not a critical stage
-probably cause is the standard
-not really a jury
-def. attorney not present
-23 jurors and 12 must find that def. must be held for trial
witness, prosecutor and def. are present
-def. is entitled to testimony of anyone who testifies
-grand jurors can ask questions and hearsay is allowed
-where investigation starts
-can indict or leave person alone
-is secret and can be based on illegally obtained evidence
-in fed. ct you can waive grand jury except for capital crimes
-grand jury original-case originates with grand jury

Critical stage-for felony
-def. is called upon to answer the indictment, elect a trial by judge or jury and enter a plea
-felony cases- counsel for indigent defs. is usually appointed at this time.
If accused pleads not guilty or remains silent, a trial date is set
-if guilty plea, (constitutes waiver of jury trial) judge then determines if plea was voluntarily and intelligently made

When grand jury presents its indictments to judge and judge brings in def. and lets him know what he is being charges with (basically for misdemeanors)

Critical stage
the ultimate waiver, no trial, waive all defenses known and unknown
-if plead guilty, only thing left is sentencing
-judge warns def of rights, advises him of charge and max length of time, ask questions to see if they are voluntary, has to have basis for being guilty, factual basis

Nolo contendere
-def. can forego a trial without admitting guilt
-is admissible to prove both in subsequent criminal and civil cases

A defendant may enter this only with the consent of the court and based on some conditions.

When you are charged with a greater offense but chose to plead to a lesser offense because you feel you are not guilty.

As long as the def.'s admission is voluntary, he knows what he is admitting to and that it is intelligent then he can do it.
Must ask it to the court.

-def. may withdraw guilty plea and plead again where any form of error occurs during the taking of the plea. A withdrawn guilty plea is inadmissible in a subsequent civil trial
-if judge leaves out a step
-after sentencing-test is manifest injustice for allowing a person to withdraw their plea after sentencing
-before sentencing-test is fair and just

-Def. knew the risks involved before choosing to waive a jury trial, the ct. affords def. no right to collaterally attack a guilty pleas for prior constitutional violations

exceptions/permitted when: in plea bargain situation where prosecutor fails to keep his promise, where the court lacks jurisdiction, where ineffective assistance of counsel occurs
-plea bargaining-def. may agree to plead guilty to an offense in return for the prosecutor's rec. for a lesser sentence or dismissal of charge. Def. has right to have plea bargain kept once the guilty plea has been accepted

- Motion to supress- evidence obtained from searches and seizures, suppression of evidence, witness testimony, incriminating statements made by def., during questioning w/o miranda

-motion to dismiss-double jeopardy, dismissal for lack of speedy trial, dismiss the charge for failure to state a case

-motion to compel discovery

right attaches once a def. has become an accused, such as upon arrest or filing of charges. 6th amendment
-determining reasonable delay: length of delay, reason for delay (def. delay- right is waived) (prosecution delay- must be in good faith and justifiable), def. must assert right to speedy trial every time gov't delays, prejudice to def.

critical stage
-gov;t has burden or proof to prove each crime beyond a reasonable doubt and it never shits

Def. has the obligation to raise an affirmative def. and put on evidence to support it. Must raise objections immediately
If only raised on review, standard is plain error review (fundamental error of the trial)

Your starting point at trial. Def. is presumed innocent and can be rebutted by evidence. Jury may infer guilt by looking at facts

burden of proof ALWAYS on gov't
-prevents undue harassment and expense by eliminating the risk of a def. twice being punished for the same offense. 5th and 14th amendment

If def. requests a mistrial, they waive it

Non-jury trial- When the first witness is sworn and the court begins to hear the evidence jeopardy attaches

-Jury-When the jury is sworn in and impaneled.

Used with double jeopardy.
When judge stops trial because there is a very serious problem. Not double jeopardy if ct of appeals agrees judge stopped trial because of very serious problem.

Applied to determine where there are two offenses, thus avoiding double jeopardy, is to whether each requires proof of a fact which the other does not. In no, they are not the same crime and there is no double jeopardy.
-does not cover lesser included offenses

Precludes relitigation between the same parties of issues actually determined at an earlier trial, is embodied in the guarantee against double jeopardy.

-only applicable to very issue sought to be precluded in the later prosecution has been necessarily determined at earlier trial

When you are charged with the greater offense, you are also charged with the lesser offense. ie assault w/ dangerous weapon and simple assault. When all the elements of one offense are contained within another.

-once jeopardy has attached for lesser offense, retrial is barred for greater offense. If at time jeopardy attaches all elements of greater offense have not yet occurred, a later trial is permitted.

Separate crimes from one act

Separate trial and separate punishment does not violate double jeopardy and is proper where one unlawful act produces more than one separate criminal offense.

Double jeopardy provision does not prevent dual prosecution by separate sovereigns. A def. may be prosecuted for the same criminal conduct by a fed ct and then by a state court or by two separate state courts

-not considered a separate sovereign, local conviction would bar a state prosecution of the same
-where former jeopardy would bar a new trial, additional considerations arise when the prosecution entity is different from the gov't entity which brought the former prosecution.
-gov't must bring all charges arising out of same incident at same time.
-if evidence in equal balance, gov't has not met it's burden

-hung jury
-breach of an agreed plea bargain
-successful appeal by def.-if it is due to an error made at trial
-reprosecution after mistrial-based on def.s consent and manifest necessity

A jury which fails to agree on a verdict is a proper basis to find m.n. and permit retrial.

Improper conduct by def. or improper remarks by def. counsel is sufficient grounds to declare a mistrial and permit retrial.

Illness or death of the judge, juror or the def. may result in mistrial w/o double jeopardy barring retrial

Necessity cause by the prosecution may be invalid grounds for a mistrial

-fair trial
-compulsory process
-protection against double jeopardy
-jury trial
-counsel
-against self-incrimination
-confront your accuser
-speedy trial
-public trial