Criminal Procedure Exam Checklist

Call of the Question?

Is there an 4A issue?
The 4th Amendment (4A) provides that people should be secure in their persons from
unreasonable search and seizures, and that no warrant shall issue, but upon probably cause,
supported by an affidavit, particularly describing the place to be searched, and the persons or
things to be seized.
Does the 4A apply?
If so, did the police violate it?
If so, will the evidence be excluded?
 Rule: As a general matter, the 4A demands a warrant prior to a search or seizure, subject
to certain exceptions.
o “legitimate expectation of privacy:” Those things
 That a person tries to keep private
 Which society recognizes as being the proper subject of privacy.
o “open fields” doctrine
 Police entry into an open field does not implicate the 4A.
 Any unoccupied or undeveloped area outside the curtilage of a home
 Not a person, paper, or effects
o What may be seized?
 Contraband: evidence that may not be lawfully possessed by a private
party.
 Fruits of a crime
 Instrumentalities used in a crime.
 “mere evidence” of a crime.
o What is a seizure?
 Of property: occurs when there is “meaningful interference with an
individuals possessory interest in that property.”
 Of persons: occurs “when an officer, by means of physical force or show
of authority, has in some way restrained the liberty of a person.”
o Probable Cause
 Is a quantum of reasonably trustworthy information that would warrant a
person of reasonable caution in the belief that an offense has, been, or is
being committed.
 Or in case of a seizure, that evidence subject to seizure will be found in the
place to be searched.
  The Aguilar-Spinelli Test
 When judging information acquired from third-parties, we engage
in a two-prong test:
o 1. We look to the veracity, or probable truthfulness, of the
information.
 In the case of a citizen-informant, by veracity we
mean credibility.
 In the case of a “snitch”- a regularly paid informant-
by veracity we mean reliability.
o 2. We look to the “basis of knowledge” of the information.
 Elements of a Valid Warrant
o A warrant must be issued by a neutral and detached magistrate.
o A warrant must be particularized-as particular as the police can manage under the
circumstances.
 Exigence Exception
 Generally, “exigence” or “exigent circumstances” will justify a
warrantless entry into a house:
o When required to provide emergency aid;
o When in the course of “hot” pursuit; and
o To prevent the imminent destruction of evidence.
 Search Incident to Arrest
 Generally, incident to a lawful arrest, the police may make a
warrantless search of the arrestee.
 The reach of a Search Incident to Arrest is the arestee’s person and
the area within their immediate control-commonly referred to as
‘wingspan,’ and being the area from which they might gain
possession of a weapon or destructible evidence (Chimel)
 Entire passenger compartment of a car is within the “reach” of the
occupants and may be searched incident to arrest of an occupant
(Chimel & Belton).
o After the arrestee has been secured, the search may only
extend to those areas of the passenger compartment where
evidence of the offense of the arrest might be found (Gant).
o Automobile exception
 When there is probable cause to search a car, the
car-and any containers therein which may reveal the
object of the search—may be searched without a
warrant.
 The exigence created by the “mobility” of a
car, and the diminished expectation of
privacy we have therein.
 Containers Within Cars
  Bright-line rule. California v. Acevedo—
closed containers within an car may be
searched if there is probable cause to search
the car, whether or not the probable cause is
centered on the container.
 Inventory Exception
o The police may, consistent with the 4A, conduct a
warrantless inventory of property taken into their custody,
assuming that the search is conducted pursuant to a
“standardized procedure”—and that it is reasonable.
 Plain View
 The police may search or seize evidence of a crime (or contraband,
fruits, instrumentalitiles) upon probable cause and without a
warrant if it is found in “plain view” by an officer who is in a place
they are allowed to be.
o This is not a search, as the items are not being kept private.
o It is a “seizure,” but the court finds it reasonable, assuming
that the seizure can be accomplished without an
independent 4A violation.
 Consent
 A search conducted pursuant to “consent” is reasonable under the
4A.
 Consent must be voluntary; it cannot be the product of “overborne
will” or “mere submission of authority.”
 At the same time, there doesn’t need to be an affirmative,
“knowing and intelligent” giving up of some known right.
 Terry Stop
 An officer may on the basis on “reasonable suspicion” briefly
detain an individual, and pat down the out layers of their clothing
in an attempt to discover weapons.
 The facts forming the basis of the reasonable suspicion must be
articulable.
 Protective Sweeps
 Incident to a lawful arrest in a home, officers, could—as a
precautionary matter and without any particular suspicion—look in
closets and other spaces “immediately adjoining” the place of
arrest from which an attack could be launched.
 Beyond the above, any further search must state articulable facts
which would warrant a reasonably prudent officer in believing that
the area to be swept harbors a dangerous individual.
 “Special Needs” Searches
 Administrative or Regulatory in character.
  Based not on individual suspicion, but on “reasonable” grounds for
generalized search, such as airports, border crossings, commercial
kitchens, etc.
 NOT for purposes of ferreting out criminal activity—DUI
checkpoints OK, narcotic checkpoints not.
 Exclusionary Rule: As a general matter, evidence obtained in violation of the 4A is
suppressed “excluded” at trial.
o The individual must have standing.
o Does not apply to civil trials, grand jury proceedings, sentencing, probation or
parole hearings, or to attempts to impeach testimony.
 “tainted” evidence is derived from evidence found through a 4A violation,
it is generally excluded as “fruit of the poisonous tree”
 Evidence obtained from an “independent source” may be used, despite it
being a fruit.
 Government may claim that evidence in question is “attenuated” that is
arrived at by means of ‘sufficiently distinguishable to be purged of the
primary taint’
 What factors inform whether evidence is attenuated?
o Length of time between the illegality and the seizure of the
fruit
o The ‘flagrancy’ of deliberateness of the initial misconduct
o The existence of absence of intervening causes of the
seizure of the fruit.
o The presence of absence of an act of free will by the
defendant resulting in the seizure.
o Leon “Good Faith” Exception
 The exclusionary rule need not be applied when officers have conducted a
search acting in reasonable reliance on a search warrant later found to be
unsupported by probable cause.
 Standing: One may only assert their own 4A interests. The defendant may raise their own
violation claims in seeking suppression of evidence.

Is there a fifth amendment issue?

The 5th Amendment (5A) provides people the privilege of compulsory self-incrimination,
and the prohibition of double jeopardy.
 What is the scope of the privilege against Self-incrimination?
o The privilege against self-incrimination is the privilege against testimonial self-
incrimination (Schmerber).
o The nature of the protection is that any communication on the part of an accused
be “voluntary.”
o Miranda clarifies that a “voluntary” waiver of the right to remain silent is on
which is “knowingly and intelligently” given.
o Miranda is implicated when one is in custody and is subject to interrogation.
o In and of itself, the mere fact of a prior unmirandized statement doesn’t prevent
the admission of a proper, Mirandized statement.
o If, however, the former statement was coercively obtained, or creates a “coercive
impact” on the very basis of having been made, the Court considers whether the
later statement is free of taint using the Wong-Sun type factors:
 The completeness and detail of the questions in the first round of
interrogations;
 The overlapping content of the two statements;
 The timing and setting of the first and second statements;
 The continuity of police personnel;
 The degree to which the interrogator’s questions threatened the second
round of questioning as continuous of the first.
o Miranda is triggered by “custodial interrogation.” What is “custody?”
 “Custody” is that condition where a person is ‘deprived if their freedom of
action in any significant way.’
 It can also be said that “custody” is ‘that circumstance where a reasonable
person would not feel free to desist the encounter.’
 A ‘brief roadside detention’ of a motorist is not “custody” for Miranda
purposes, although such a condition is surely ‘detention.’
o Miranda is triggered by “custodial interrogation.” What is interrogation?
 “Interrogation” is not limited to express questioning.
 “interrogation” includes any ‘words or actions on the part of the police
that they should know are likely to elicit an ‘incriminating response’ from
the suspect.”
 Don’t read the ‘incriminating response’ prong too narrowly—most
responses are incriminating!
 Routine booking questions are not considered to be interrogation.
o The privilege against self-incrimination protects only what would be called
“testimonial” answers, that which communicates information for use in a
courtroom, things like slurred speech or appearance are not testimonial, and thus
not the subject of Miranda protections.
o Miranda Invocation and Waiver
 A Miranda waiver must be more than ‘voluntary’ such waivers must be
knowing and intelligent.
 Miranda is not crime-specific. A person who invokes Miranda can’t be
questioned about other things.
 Miranda waivers are personal.
  Miranda is not age-specific.
 Miranda implicates two different rights—the right to be silent and the
right to counsel, either of which can be invoked together or separately.
 When one invokes the right to counsel, one may not be questioned
by the police until counsel has been made available to them.
o Edwards allows that the accused may themselves “initiate”
discussion; the contours of this rule have not been fully
fleshed out.
o Under Maryland v Schatzer, the court determines that the
invocation isn’t eternal, and that after a two-week break in
custody the police may “try again.”
 All invocations must be unambiguous.

Is there a sixth amendment issue?

The 6th Amendment (6A) provides people a speedy, public trial with a jury. It allows
defendants to confront witnesses and the assistance of counsel in felony cases and misdemeanor
cases in which imprisonment is imposed.
 One has a right to counsel once charges have been initiated—once one has been arraigned
(Messiah).
 Post-arraignment—when one has an attorney—any police questioning or ‘eliciting’ of
information from the Defendant violates this 6A right to counsel.
 This applies whether or not the Defendant knows they are speaking to a government
agent.
 Post-charge, any in-person “line-up” can only occur in the presence of the Defendant’s
attorney, for 6A reasons.
 Preliminary Hearing
o A hearing before a judge for the purposes of determining probable cause to
continue charging a felony;
o A “critical stage” of the proceedings for which counsel must be appointed;
o An adversarial proceeding at which each side is allowed to call and examine
witnesses.
 The Right to Counsel
o Available anytime a criminal defendant may be sentenced to a term of
imprisonment.
o The Right to Counsel also implies the right to self-representation.
o The Right to Counsel is the right to effective assistance of counsel. What is
effective counsel?
 Counsel which committed serious errors; and
 Counsel which prejudiced the Defendant in the sense of producing an
“unreliable” trial.
  The Right to a Jury
o The right to a jury attaches to any offense where more than 6 months
imprisonment may be given.
o Multiple counts of offenses carrying terms of less than 6 months which together
add up to a term longer than 6 months do NOT entitle the defendant to a jury.
o Juries as small as 6 are Constitutional; non-unanimous verdicts as low as 9-3 are
constitutional.

Miranda and Messiah

 Both are personally waivable by a defendant.
 Miranda is a 5A protection.
 Messiah is a 6A protection
 Miranda is triggered by a custodial interrogation. Massiah is triggered by charging.
 Miranda is not offensive specific. Massiah is. As a partial consequence of this, the police
may “try again” after a Miranda right is invoked, given the passage of 14 days; under
Massiah, the issue is whether one has invoked the right to counsel or simply been
appointed one; if the former, there can be no more questioning about that crime, if the
latter questioning can continue until the “right” is invoked.
 Miranda has no “fruit of the poisonous tree” issues but examines violations for
taintedness.
 Massiah is subject to the “fruit of the posious tree” issues.
 Miranda-violative statements may still be used to impeach.

Is there an eight-amendment issue?

 Cruel and unusual punishment: