Criminal Procedure Outline - Bar Exam Prep

Criminal Procedure

·      Most civil procedure questions on the bar exam will involve the 4^th Amendment

·      Does the 4^th Amendment apply?

o   If no, analysis done.

o   No expectation of privacy

§  If you are only a paragraph in, “But if the court determines that there was a contract…”

·      If Yes:

o   Need warrant or exception

o   Warrant will take you one way and exception will take you another

o   Remember, probable cause does not mean you do not need a warrant

§  Remember that exceptions can build

·      Something you see in the vehicle gives rise to vehicle exception

·      Step-by-step

o   Build in order

·      Do not start with the piece of evidence

Kaplan

·      Introduction to Criminal Procedure

·      Constitutional Protections

·      State provides the ceiling

o   Can provide more rights

o   Cannot take rights away

·      U.S. Constitution

o   Living breathing document

o   Bill of Rights – First 10 Amendments

o   14^th Amendment

§  Extends the Bill of Rights to the States

·      Who is protected

·      Fourth Amendment

o   The right of the people to be secure in their person, 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…

·      (State) Government Action

o   Government, most often police, TSA, private security

o   Individuals working with, or sent on behalf of police (CI)

o   Acting under the direction of the government (jail cell)

·      Seizure

o   Occurs when a state actor uses physical force to restrain a suspect

o   Test is whether the reasonable person would feel free to leave or terminate the encounter (objective std)

o   Arrest is a seizure

·      Levels of encounter

o   Mere encounter

§  No level of suspicion

o   Reasonable suspicion

§  Terry Stop

§  Brief investigatory detention is allowed to confirm or deny the suspicion (beyond hunch) the officer has concerning the individual and his connection to a crime

§  Factors to consider are scope and duration

§  A limited pat down of the outer clothing is permitted

§  No further inspection “manipulation” is allowed as the search is for weapons

§  Reasoning – Officer safety

o   Probable cause

§  Would the facts and circumstances indicate to a reasonable person that an individual has committed a crime, or

§  That specific items related to criminal activity could be found at/in a particular place

§  Totality of the circumstances

·      Observations, eyewitness accounts, forensic evidence, other tests

§  Even tips from informants and anonymous persons

§  Required for arrest, search

·      Search

o   Occurs when

§  1. A person expects privacy in the thing searched and

§  2. Society believes that expectation is reasonable

·      Standing

o   Defendant must have a possessory interest in the place/premises searched or in the items seized

·      Reasonable Expectation of Privacy

o   If there is a REP, then police intrusion constitutes a search

o   If there is no REP, then police intrusion is not a search

o   Is the thing held out to the public? (Car)

o   Has the individual willingly exposed the item, communication (phone booth)

·      No reasonable expectation of privacy (therefore no search)

o   Sound of one’s voice

o   Handwriting exemplars

o   Bank records vs. personal banking records

o   Phone records (Pen register)

o   Open fields beyond the curtilage

§  State provides the floor, federal government provide the ceiling

·      Warrant Requirements

o   Search warrants require probable cause, oath or affirmation and a particular description of the place and object of the search to meet constitutional requirements

o   A sworn statement of facts showing probable cause to search a particular place for particular items

o   The standard for probable cause is objective, meaning that there is sufficient information to persuade a reasonable person that a certain place contains evidence of a crime

o   A search warrant may be issued by neutral disinterested magistrate

·      Requirements for a valid search

o   Probable cause and a

o   Valid warrant, unless an exception applies

§  Stop and frisk

·      Terry stop

·      A brief investigatory detention is allowed to confirm or deny the suspicion that the officer has concerning the individual

·      Reasonable and articulable suspicion

·      A limited pat down of the outer clothing is permitted

·      No further inspection is allowed

§  Search incident to lawful arrest

·      Once a lawful arrest has been made, the defendant may be searched for weapons and contraband

·      The search is not limited to outer clothing and may be more intrusive than a stop and frisk

·      Police are taking custody of the defendant and preservation of evidence and officer safety are the primary concerns

·      Can occur in a vehicle and extend to the interior passenger compartment as well as locked containers

·      Protective Sweep

o   A sweep of the area immediately around the arrestee, and the path or hallways directly to and from him and the entrance to the residence, (and rooms he enters)

o   The purpose is to ensure the security of officers

o   The protective sweep must be limited to a cursory inspection of places where a person may hide, and last no longer than is necessary to dispel the reasonable suspicion of danger

o   Not automatic

·      Plain view

o   An officer is justified in seizing evidence that is automatically apparent to be illegal as long as the officer is viewing the evidence from a lawful vantage point

o   Look at where the officer is, and how he got there

o   Look at the item

·      Automobile Exception

o   There is a reduced reasonable expectation of privacy in a vehicle, and due to the inherent mobility of vehicles, an automobile exception is justified

o   As long as police have probable cause to believe that contraband is inside the vehicle, police may search anywhere they feel the evidence may be found

·      Consent

o   As long as the person providing consent displays actual or apparent authority to the officer, consent is valid without any level of suspicion

o   It is limited in scope to the consenter’s status and desire

o   It must be voluntarily given (no threat of returning)

·      Consent search

o   Consent extends to all areas where a person with an apparent equal right to use or occupy the property would have joint access or control

§  Co-habitant?

§  Shared area?

·      Hot pursuit

o   Police may enter a dwelling in hot pursuit of the fleeing suspect without a warrant

o   Crosses over with plain view quite often

·      Exigent circumstances

o   Justify warrantless search related to a serious offense under the following circumstances:

§  Flush

§  Flee

§  Fear: Risk of harm to the police or others

·      Inventory Search

o   Routine search to protect the arrestee’s personal items and to safeguard the police from any claims of theft

o   This should happen at the station, not at scene

·      Dog Sniff (general NOT a search)

o   Dog sniff of the exterior of a lawfully stopped vehicle does not constitute a search

o   A positive canine alert provides probable cause to search

·      Electronic Surveillance

o   FLEER technology

o   Fly-overs

·      Curtilage

o   The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated “open fields beyond”

·      Open Fields Doctrine

o   Refers to the area beyond the curtilage

o   No reasonable expectation of privacy

o   No 4^th Amendment protection

·      Approach to Criminal Procedure

o   State action – is there government actor/action involved?

o   Standing