Crim Pro Checklist

7/30/2019 Crim Pro Checklist

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CRIMINAL PROCEDURE CHECKLIST

FOURTH AMENDMENT

I. GENERAL

a. The governmental search and seizure of persons, houses, papers, and effects must be reasonable

b. Warrants shall have probable cause supported by oath/affirmation describing the searches and/or

seizures

c. Fourth Amendment applies when a government of the United States searches or seizes a person inthe United States

d. State action is required

e. The Fourth Amendment has been incorporated through the Fourteenth Amendment and applies to

the states

f. The Federal Constitution is a floor that grants only minimal rightsg. State Constitutions can grant more protection than the Federal Constitution

II. SEARCH

a. Actual subjective expectation of privacy AND reasonable expectation of privacy (recognized bysociety as legitimate)

b. Reasonable expectation of privacyi. "Plain Feel Searches" if "probing tactile examination" of property

ii. Thermal Detection Devices detecting heat from inside the home1. Where technology allows police to view in the home, consider the availability of the

technology to the general public (eyeglasses v. night vision gogglesmore available

to society = less likely a search)

c. No reasonable expectation of privacy

i. Search in an open field is not a search UNLESS

1. Curtilage proximity to the home, enclosures, use of area within curtilage, stepstaken to protect from passers-by

ii. Assumption of Risk

1. Consensual electronic surveillance is not a search because one "assumes the risk"

that another will relay communication to the police

2. Where police request bank records

3. Where police request pen registers

4. Numbers left on pagers by callers BUT

a. Owner of pager has reasonable expectation of privacysimilar to address

book

iii. No reasonable expectation of privacy in trash UNLESS

1. In the curtilage

iv. Public Areas

1. Homeless persons have a reasonable expectation of privacy in their belongings

placed on public property BUT NOT stuff on private property

2. No reasonable expectation of privacy in a bathroom stall where anyone could

observe from outside the stall

v. No reasonable expectation of privacy under aerial surveillance UNLESS

1. Overflight disturbs property

vi. Police dog sniffing is not a search if all it reveals is the presence of an illegal substance BUT

cannot be grounds by itself for opening the container

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III. SEIZURE (WHENA SEIZURETAKESPLACE)

a. Interference with property rights

b. Interference with personal freedom (Arrest)

c. Forcible Stop is a seizure if individual is not "free to leave" under the circumstances

d. If the individual is "free to leave" under the circumstances, it is a mere encounter

IV. PROBABLE CAUSE

a. Search : Probable cause to believe there is evidence of a crime thereinb. Seize : Probable cause to believe the item(s) is evidence of a crime

c. Arrest : Probable cause to believe the individual is guilty of a crime

d. Probable Cause for a Warrant to be Issued:

i. Totality of the Circumstances

ii. Persons giving information as basis for probable cause

1. Veracity and reliability of the Information

a. Citizens presumed truthfulb. Officers presumed truthful

c. Hearsay is O.K. unless it's the only basis for probable cause

d. Police Follow-Up Investigation to corroborate information

iii. Neutral and detached magistrate must find a fair probability that evidence of a crime will

be found/fair probability that the individual committed the crime

iv. Reviewing court must find a substantial basis for magistrate's conclusion that probablecause existed

V. INFORMATIONINTHE WARRANT

a. Place to be searched whether the officer made a good faith effort to accurately describe the

place to be searched

b. Things to be seized places that could reasonably hold the "thing" to be seized

c. Execution must be reasonable

d. Federal Rules of Criminal Procedure

i. Issuance Federal magistrate or state court within district

ii. Things Seized contraband, property, instrumentalities, fruits of a crime

iii. Staleness 10-day-limit on the life of the warrant

iv. Daytime Before 10:00 PM

v. Copy and receipt for property seized

vi. Remediesmotion to return unlawfully seized property or motion to suppress

VI. ARRESTS (NO WARRANTTO SEIZE PERSON)

a. Arrests in the home require a warrant UNLESS exigent circumstances exist

i. Inside the door and voluntarily opened

ii. Consider: Home

Apartment

Hotel

Office

Public (Warrant

No warrant)iii. Policy sanctity of the home

b. Felony or misdemeanor in the presence of the officer does not require a warrant

c. Where there is probable cause to believe a felony has been committed, no warrant required toarrest

d. Where a misdemeanor-fine only offense is committed in the presence of an officer, no warrantrequired to arrest

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VII. PROCEDUREAFTER WARRANTLESS ARREST(DUE PROCESS)

a. Must be made within 48 hours after arresti. If so, presumed constitutional

ii. must prove no delay was necessary or police tried to collect evidence within that timeb. If not made within 48 hours after arrest

i. Presumed unconstitutional

ii. Police must prove they could not give a hearing within 48 hoursc. Evidence obtained within the 48 hour span is not suppressed even if the hearing was not given

within 48 hours UNLESS the delay caused the evidence to be obtained

VIII. STOPAND FRISK (TERRY) (NO WARRANTSTOP PERSONAND SEARCH PERSONFOR WEAPONS)

a. Stop : Reasonable suspicion that criminal activity is afoot

i. Based on a reasonably prudent officer with similar experience

1. Profiling may be used to supply the "experience"ii. Specific and articulable facts that justify the stop (connect experience with facts)

b. Frisk : Reasonable suspicion that the individual poses a danger to the officeri. Pat down for weapons

c. Stop and frisk after a tip from an informant was reasonabled. Stop and frisk after an anonymous caller was unreasonable

e. Stop and frisk by officer after pulling over for a moving violationi. Reasonable suspicion of a traffic violation

ii. Reasonable suspicion of danger to the officer

f. Encounters do not trigger the Fourth Amendment if, under the totality of the circumstances, the

individual has a reasonable belief that he is free to leave

g. Policy OFFICER SAFETY

IX. SEARCH INCIDENTTO ARREST(NO WARRANTTO SEARCH PERSONAND GRAB AREA)

a. First, police must have probable cause to arrest

b. Generally : After an arrest, officer can search area within the arrestee's immediate physical

control, or the "grab area" at the time of the arrest for protection and preserving evidence

i. Officers can also secure the premises by "sweeping" the area for protection

c. Automobiles : After an arrest, officers can automatically search the interior of the cari. Reachable from the interior (NOT the trunk)

ii. Panels IF no damage doneiii. Containers in the interior

d. Search after issuance of a traffic ticket is NOT an automatic justification to search the interiorof the car

e. Search after a Patrol Stop : Once officer has probable cause to believe a person has committed a

traffic offense, officer can pull the car over regardless of motive.f. Policy OFFICER SAFETY AND PREVENT DESTRUCTION OF EVIDENCE

X. PLAIN VIEW DOCTRINE (NO WARRANTTO SEIZE EVIDENCE)

a. Police must be in the area lawfully AND

b. Police must have probable cause to believe that the evidence in plain view is evidence of a crimei. BEFORE the evidence is seized

XI. PLAIN TOUCH DOCTRINE (NO WARRANTTO SEIZE EVIDENCE)

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a. Police must be lawfully conducting a stop and frisk AND

b. If probable cause is established during such frisk, (the item is evidence of a crime) police may seize

the article UNLESS

i. The frisk is grossly intrusive

c. If the item is a container, the police can seize the container but must obtain a warrant to open the

container

XII. AUTOMOBILE EXCEPTION (NO WARRANTTO SEARCH CAR)

a. Police may search the entire automobile if they have probable cause to believe there is evidence ofa crime in the car

b. Once police have probable cause to believe there is evidence of a crime in an automobile, the police

can search containers in the automobile if they have probable cause to believe there is evidence ofa crime in the container

XIII. EXIGENTCIRCUMSTANCES (NO WARRANTOR PROBABLE CAUSE REQUIREMENTS)

a. Escape : Totality of the circumstances

b. Danger to the Public: adequate basis to justify the emergency situation

c. Evidence

i. Drugs : Totality of the circumstances

ii. Crime Scene : consent initial entry = no warrant when police return, must have awarrant

iii. Police may forbid entry into a home to preserve evidence while a warrant is obtained if donereasonably (reasonable in time and scope)

XIV. CONSENT(NO WARRANTOR PROBABLE CAUSE REQUIREMENTS)

a. Voluntary under the totality of the circumstancesb. Undercover Operations

i. Consensual conversation while officer or other party is recording is NOT a search

ii. Scope of consent limits undercover officer's ability to search

XV. INVENTORY SEARCHES (NO WARRANTOR PROBABLE CAUSE)

a. Property (Cars, containers, or person) is lawfully taken into custody ANDb. Carried out for caretaking functions pursuant to neutral guidelines or universal practice

i. (1) Protection of officers; (2) Protection of owners; (3) Prevent lawsuits against police forlosing property

c. Containers can be searched if the purpose for the search is a caretaking function, NOT search for

evidence

XVI. ROADBLOCKS (NO WARRANTOR PROBABLE CAUSE REQUIREMENTS)

a. Where police are primarily enforcing public safety, not criminal law, no warrant or probable cause

requirements are necessary

i. Balance government interests with private interestsii. Make sure there is a police policy that takes away officer discretion to stop (exevery

third car is stopped)iii. Minimize level of intrusion

b. Mixed motives are permissible

c. Pretextual roadblocks have been held unreasonable

d. Drug checkpoint alone is unreasonable because the primary purpose is enforcing criminal law

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XVII. ADMINISTRATIVE SEARCHES

a. Totality of the Circumstances ANDb. No warrant requirement

i. Balance public interests against private interests

XVIII. SPECIAL NEEDS SEARCHES

a. Students in public school

i. Reasonable individualized suspicion

ii. Balance school interests with student interestsb. Suspicionless Drug Testing

i. Balance government interests with individual privacy

XIX. EXCLUSIONARY RULE

a. Rule Evidence obtained in violation of the Fourth Amendment shall be excluded

b. Policy Deter police from violating the constitution

XX. STANDINGTO CHALLENGE FOURTH AMENDMENTVIOLATIONS

a. Search : Whether at issue had a legitimate expectation of privacy in the place searched

i. Totality of the circumstances

1. Relationship between owner and 2. Time spent at place searched

3. Sleepover rule

b. Seizure Whether at issue had an individual property or possessory interests in the thing seized

c. Causation (ILLEGALSEARCHCAUSESTHESEIZUREOFEVIDENCE OR ILLEGALARRESTCAUSESCONFESSION)

i. But for the illegality, the evidence would not have been obtained AND

ii. Illegality was the proximate cause of the evidence being obtained

1. Whether, considering the totality of the circumstances, the independent free wil

of the OR an intervening event broke the chain of causation

a. Miranda warnings alone do not cure the illegality

d. Exceptions (WHEREAVIOLATIONOFTHE 4TH AMENDMENTHASBEENESTABLISHED AND THEILLEGALITYWASTHECAUSEOFTHEEVIDENCEBEINGOBTAINED)

i. Independent Source Doctrine If the search or seizure was independent from any violation

of the Fourth Amendment, the evidence is admissible

1. Illegality NOT used to establish probable cause for warrant

2. Exceptionillegality used to establish probable cause AND grossly intrusive police

behavior3. Problemsopens the door to confirmatory searches BUT is not happening in practice

(officers do not try to violate the Fourth Amendment)

ii. Inevitable Discovery Doctrine IF the evidence would have inevitably been discovered

absent the violation of the Fourth Amendment, the evidence is admissible

1. Preponderance of the evidence that

a. Officers would inevitably discovered the evidence linking to the crime

b. Officers were already looking in the place where the evidence was

iii. Good Faith Exception1. Good faith, reasonable reliance, on a defective warrant issued by a neutra

magistrate, the exclusionary rule does not apply2. Exceptions

a. Misleading evidence

b. Magistrate is not neutral

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c. Police submit clearly insufficient affidavit

d. Warrant is facially deficient

3. Policy only apply exclusionary rule for police misconduct, not magistrates mistakes

FIFTH AMENDMENT

I. GENERAL

a. No person shall be compelled in a criminal case to be a witness against himself

II. ELEMENTS

A. "PERSONS"

i. Fifth Amendment is a personal right. One cannot rely on the Fifth Amendment for other

peopleii. Privilege does not extend to corporations, partnerships, or other types of legal business

entities EXCEPT sole proprietorships

B. "COMPELLED"

i. State's use of contempt power is compulsion because it poses substantial punishment on

person who claims the privilegepresents the witness with the cruel trilemma of choosing

between self-accusation, contempt, and perjuryeach of which could lead to imprisonment

C. "WITNESSAGAINSTHIMSELF"

i. The Fifth Amendment protects only against compelled disclosure of testimonialevidenceIf evidence is non-testimonial, the Government can compel its production

1. Express or implied assertion of fact that could be true or false subjects a witness

to the cruel trilemma of punishment for truth, falsity, or silence2. Witness can be compelled to produce

a. DNA evidence, photo lineups, fingerprints, handwriting samples, blood, and

speech comparisons IFb. Probative effect of comparisons must be the comparison, NOT the actua

words spoken

D. "CRIMINAL CASE"

i. Prohibits the Government from compelling individuals to provide incriminating testimony in

any proceeding if their answers might tend to incriminate them in an ongoing or future

criminal proceeding

ii. Silence cannot be used as evidence against in a criminal case BUT

iii. Silence can be used as evidence against in a civil case

iv. Fact finder can draw "any reasonable inference" from the 's silence in a civil case

E. "AGAINSTHIMSELF"

i. Immunity takes away the Fifth Amendment Privilege

1. Transactional immunity is a complete bar to any future prosecution of the who is

granted immunity

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2. Use immunity is not a complete bar to any future prosecution of the who is

granted immunity, but bars the prosecution from using the immunized testimonyagainst the

III. CONFESSIONS AND DUE PROCESS CLAUSE

a. Due process clause under the Fifth Amendment is used to exclude confessions where, under the

totality of the circumstances, the involuntarily confessed

i. False documentary evidence is per se impermissible

ii. Confessions derived from promises of consideration by the police will be excluded IF1. Police have no authority to give leniency2. The leniency is unreasonable

iii. Police misconduct controls, not the 's state of mind

IV. CONFESSIONSAND MIRANDA

a. Police must advise a suspect of his rights before custodial interrogation

b. Policy Advise every suspect of his rights, assure waiver of rights is voluntary, and put every

suspect on a level playing field with the police in an inherently coercive atmosphere

C. MIRANDA RIGHTS

i. Right to remain silent (Fifth Amendment)ii. Anything said can and will be used against you in court (consequence, not a right)

iii. Right to the presence of an attorney during questioning

iv. Right to have attorney appointed if you cannot afford one (not mandatory if police know you

can afford an attorney)

D. CUSTODIAL INTERROGATIONi. Custody

1. Whether, under the totality of the circumstances, the suspect has been deprived of

his freedom of action in any significant way (free to leave)

a. Arrests generally, but NOT Terry Stops

ii. Interrogation

1. Express questioning OR

2. Functional equivalent of express questioning

a. Any words or police action which the police should know is reasonably likelyto elicit an incriminating response from THIS suspect

E. EXCEPTIONSTO MIRANDA WARNINGS

i. Public Safety/Emergency exception applies where, under the totality of the circumstances

danger to the public outweighs the 's Fifth Amendment rights

ii. More compulsion is generally tolerated in such circumstances although not freely admittedby the court

F. WAIVEROF MIRANDA WARNINGS GENERALLY

i. Knowing AND voluntary waiver of rights1. KnowingFull awareness of nature of the right AND consequences of abandoning

such right

2. Voluntaryproduct of a free and deliberate choice

ii. Focus on the suspectiii. Silence is not enough to constitute a valid waiver

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G. WAIVERAFTERINVOCATIONOF MIRANDA RIGHTS

i. Whether, under the totality of the circumstances, the police scrupulously honored 's

invocation of Miranda rights

ii. Right to Silence police may continue to interrogate UNTIL makes an express, unequivoca

statement that the right to silence is being invoked

iii. Right to an Attorney once the right to an attorney is invoked, police must stop

interrogation unless the communication is initiated by the suspect

iv. Policy right to an attorney is generally a higher right than the right to silence becauseinvoking right to counsel requires additional time before it can be exercised

V. IDENTIFICATIONS

a. Formal Charges any police lineup after formal charges have been brought requires the presence

and participation of counsel

i. Policy Prevent suggestive lineups

b. No Formal Charges balance the benefit to the individual in having counsel present WITH burdenon society to have counsel present at this identification

i. Totality of the Circumstances

c. Permissible suggestiveness

i. Early Identifications fresh in witness' mind, exonerate the accused

ii. Independent Source If witness is able to identify suspect without any suggestiveness and

from an independent ability to identify the suspect the evidence of identification isadmissible

iii. Photographic Identifications generally do NOT require the presence of an attorney

SIXTH AMENDMENT

I. GENERALa. In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel

b. The accused in felony cases have a fundamental right to counsel

c. The accused in misdemeanor cases have the right to counsel IF the benefits of providing counsel

outweigh the costs to society of providing counsel

d. The accused in other cases will have the right to counsel IF liberty is at stake, but NOT if money is

at stake

i. Gives trial judge choice between appointing counsel and being free to sentence to

imprisonment OR forego appointing counsel and be barred from sentencing to imprisonment

II. SCOPEOFTHE RIGHTTO COUNSEL

a. Right to counsel attaches at all critical stages of the proceedings

b. Right to counsel attaches to appeals as of right

c. Right to counsel does not attach to discretionary appeals

d. Right to counsel does not attach to sentencing proceedings unless issues of sentencing are disputed

e. Right to counsel does not attach to administrative parole/probation proceedings unless the issues

presented require the presence and participation of an attorney

f. Right to counsel attaches in juvenile cases

g. Right to use of experts attaches if competent representation would require the aid of experts

III. EFFECTIVE ASSISTANCEOF COUNSEL

a. Counsel must provide objectively reasonable assistance AND

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b. The outcome does not prejudicially effect the defendant

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