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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 in the 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 rights g. State Constitutions can grant more protection than the Federal Constitution SEARCH a. Actual subjective expectation of privacy AND reasonable expectation of privacy (recognized by society as legitimate) b. Reasonable expectation of privacy i. "Plain Feel Searches" if "probing tactile examination" of property ii. Thermal Detection Devices detecting heat from inside the home 1. 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. Curtilageproximity to the home, enclosures, use of area within curtilage, steps taken 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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SEIZURE (WHEN A SEIZURE TAKES PLACE) 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 PROBABLE CAUSE a. Search: Probable cause to believe there is evidence of a crime therein b. 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 truthful b. 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 probable cause existed INFORMATION IN THE WARRANT a. Place to be searchedwhether the officer made a good faith effort to accurately describe the place to be searched b. Things to be seizedplaces that could reasonably hold the "thing" to be seized c. Executionmust be reasonable d. Federal Rules of Criminal Procedure i. IssuanceFederal magistrate or state court within district ii. Things Seizedcontraband, property, instrumentalities, fruits of a crime iii. Staleness10-day-limit on the life of the warrant iv. DaytimeBefore 10:00 PM v. Copy and receipt for property seized vi. Remediesmotion to return unlawfully seized property or motion to suppress ARRESTS (NO WARRANT TO 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. Policysanctity 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 to arrest d. Where a misdemeanor-fine only offense is committed in the presence of an officer, no warrant required to arrest

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PROCEDURE AFTER WARRANTLESS ARREST (DUE PROCESS) a. Must be made within 48 hours after arrest i. If so, presumed constitutional ii. must prove no delay was necessary or police tried to collect evidence within that time b. If not made within 48 hours after arrest i. Presumed unconstitutional ii. Police must prove they could not give a hearing within 48 hours c. 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 STOP AND FRISK (TERRY) (NO WARRANT STOP PERSON AND SEARCH PERSON FOR 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 officer i. Pat down for weapons c. Stop and frisk after a tip from an informant was reasonable d. Stop and frisk after an anonymous caller was unreasonable e. Stop and frisk by officer after pulling over for a moving violation i. 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. PolicyOFFICER SAFETY SEARCH INCIDENT TO ARREST (NO WARRANT TO SEARCH PERSON AND 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 car i. Reachable from the interior (NOT the trunk) ii. Panels IF no damage done iii. Containers in the interior d. Search after issuance of a traffic ticket is NOT an automatic justification to search the interior of 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. PolicyOFFICER SAFETY AND PREVENT DESTRUCTION OF EVIDENCE PLAIN VIEW DOCTRINE (NO WARRANT TO 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 crime i. BEFORE the evidence is seized PLAIN TOUCH DOCTRINE (NO WARRANT
TO

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XI. 3

SEIZE EVIDENCE)

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 c.
XII. the article UNLESS i. The frisk is grossly intrusive If the item is a container, the police can seize the container but must obtain a warrant to open the container

AUTOMOBILE EXCEPTION (NO WARRANT TO SEARCH CAR) a. Police may search the entire automobile if they have probable cause to believe there is evidence of a 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 of a crime in the container

XIII. EXIGENT CIRCUMSTANCES (NO WARRANT OR 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 a warrant iii. Police may forbid entry into a home to preserve evidence while a warrant is obtained if done reasonably (reasonable in time and scope) XIV. CONSENT (NO WARRANT OR PROBABLE CAUSE REQUIREMENTS) a. Voluntary under the totality of the circumstances b. 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 INVENTORY SEARCHES (NO WARRANT OR PROBABLE CAUSE) a. Property (Cars, containers, or person) is lawfully taken into custody AND b. 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 for losing property c. Containers can be searched if the purpose for the search is a caretaking function, NOT search for evidence ROADBLOCKS (NO WARRANT OR 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 interests ii. 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 AND b. 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 interests b. Suspicionless Drug Testing i. Balance government interests with individual privacy XIX. EXCLUSIONARY RULE a. RuleEvidence obtained in violation of the Fourth Amendment shall be excluded b. PolicyDeter police from violating the constitution STANDING TO CHALLENGE FOURTH AMENDMENT VIOLATIONS 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. SeizureWhether at issue had an individual property or possessory interests in the thing seized c. Causation (ILLEGAL SEARCH CAUSES THE SEIZURE OF EVIDENCE OR ILLEGAL ARREST CAUSES CONFESSION) 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 will of the OR an intervening event broke the chain of causation a. Miranda warnings alone do not cure the illegality d. Exceptions (WHERE A VIOLATION OF THE 4TH AMENDMENT HAS BEEN ESTABLISHED AND THE ILLEGALITY WAS THE CAUSE OF THE EVIDENCE BEING OBTAINED) i. Independent Source DoctrineIf 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 behavior 3. Problemsopens the door to confirmatory searches BUT is not happening in practice (officers do not try to violate the Fourth Amendment) ii. Inevitable Discovery DoctrineIF 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 Exception 1. Good faith, reasonable reliance, on a defective warrant issued by a neutral magistrate, the exclusionary rule does not apply 2. Exceptions a. Misleading evidence b. Magistrate is not neutral

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c. Police submit clearly insufficient affidavit d. Warrant is facially deficient Policyonly 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 ELEMENTS
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"PERSONS" i. Fifth Amendment is a personal right. One cannot rely on the Fifth Amendment for other people ii. Privilege does not extend to corporations, partnerships, or other types of legal business entities EXCEPT sole proprietorships "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 "WITNESS AGAINST HIMSELF" i. The Fifth Amendment protects only against compelled disclosure of testimonial evidence. If 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 silence 2. Witness can be compelled to produce a. DNA evidence, photo lineups, fingerprints, handwriting samples, blood, and speech comparisons IF b. Probative effect of comparisons must be the comparison, NOT the actual words spoken "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 "AGAINST HIMSELF" 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 testimony against 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 IF 1. Police have no authority to give leniency 2. The leniency is unreasonable iii. Police misconduct controls, not the 's state of mind CONFESSIONS AND MIRANDA a. Police must advise a suspect of his rights before custodial interrogation b. PolicyAdvise 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
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IV.

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) CUSTODIAL INTERROGATION i. 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 likely to elicit an incriminating response from THIS suspect EXCEPTIONS TO 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 admitted by the court WAIVER MIRANDA WARNINGS GENERALLY i. Knowing AND voluntary waiver of rights 1. 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 suspect iii. Silence is not enough to constitute a valid waiver
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WAIVER

AFTER INVOCATION OF

MIRANDA RIGHTS

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

ii. Right to Silencepolice may continue to interrogate UNTIL makes an express, unequivocal
statement that the right to silence is being invoked

iii. Right to an Attorneyonce the right to an attorney is invoked, police must stop
interrogation unless the communication is initiated by the suspect

iv. Policyright to an attorney is generally a higher right than the right to silence because
invoking right to counsel requires additional time before it can be exercised V. IDENTIFICATIONS a. Formal Chargesany police lineup after formal charges have been brought requires the presence and participation of counsel i. PolicyPrevent suggestive lineups b. No Formal Chargesbalance the benefit to the individual in having counsel present WITH burden on society to have counsel present at this identification i. Totality of the Circumstances c. Permissible suggestiveness i. Early Identificationsfresh in witness' mind, exonerate the accused ii. Independent SourceIf witness is able to identify suspect without any suggestiveness and from an independent ability to identify the suspect the evidence of identification is admissible iii. Photographic Identifications generally do NOT require the presence of an attorney

SIXTH AMENDMENT I. GENERAL a. 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 SCOPE OF THE RIGHT TO 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 EFFECTIVE ASSISTANCE OF COUNSEL a. Counsel must provide objectively reasonable assistance AND

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b. The outcome does not prejudicially effect the defendant