Crim Pro Outline FOURTH AMENDMENT ISSUE ONE: IS THE SEARCH/SEIZURE GOVERNED BY THE FOURTH AM. ? I.

WAS THE SEARCH OR SEIZURE EXCUTED BY A GOVT AGENT? if the answer is yes, move to question two. 1. Important Categories of Govt Agents: Publicly paid POs AND private citizens if they are acting @ direction of police. 2. Additional Categories of Govt Agents Private Security Guards- only if they can arrest (like UP) Public School Admins- yes. II. WAS THERE A REASONABLE EXPECTATION OF PRIVACY IN AREA SEARCHED/ITEMS SEIZED BY GOVT AGENT? 1. Protected Areas Persons- like bodies Houses- including hotel rooms, and curtilage (fenced in area/porch/etc) Papers Effects- purses, bags, etc. 2. P Must Have Reasonable Expectation of Privacy in the Protected Area Individual must have actual/subjective expectation of privacy AND Society must recognize the expectation as reasonable. Police search is presumptively unreasonable if it uses devices to search that are not in public use to explore house w/o physical intrusion- like the thermal imaging device. 3. Unprotected Items- sufficiently public, no privacy interest so can be searched/seized w/ no problem b/c they have knowing exposure to 3rd parties Paint scrapings, account records of banks, airspace (above home, ex), garbage, voice recordings, odors (like fr. Car/luggage), handwriting, Open fields- like can be in home but not curtilage. If purse is just chillin there, part of open field. 4. Challenging the Search/Seizure- must actually have privacy right in thing searched/seized. If you own/live on premises searched- always have standing Overnight guests- yes, to areas they have access to (not like owners closet). Using premises for business purposes- like just there bagging cocaine, thats it. no authority to challenge! If they own property seized- yes if they have expectation or privacy in area where the property is. EX- drugs in gfs bag, no b/c no expectation of privacy in GFs bag. Passengers in car- only if they have reasonable expectation of privacy in area searched (like if it was passengers coat). EX- drug w/ passengers name on it under seat, no espec of privacy.

 NY- passengers can challenge posesh of weapons if posesh is attributed to them. ISSUE TWO: IS THE WARRANT PROPER?- three sub Qs to ask I. DID WARRANT HAVE PROBABLE CAUSE? 1. Majority Test- requires fair probability that evidence of crime will be found pursuant to preponderance of evidence standard. Hearsay- may be used Informants tips- yes, even if anonymous, so long as the info provided would give PO common sense practical determination that PC exists by corroboration 2. New York- stricter test for informants- govt must est. Informants basis of knowledge AND Informants veracity/reliability EX- anonymous letter, PO corroborates all. Ok under majority, not under NY b/c no basis of knowledge/reliavlity. II. WAS THE WARRANT SUFFICIENTLY PARTICULAR? 1. Standard: must specify: place to be searched AND items to be seized- cant just say look in entire apt. must only lok in places it would be found- cant look for gun in match box. III. EVEN IF WARRANT IS DEFFECTIVE, DID OFFICER HAVE GOOD FAITH? 1. Rule- Good faith can overcome defects in PC and particularity! Exceptions Warrant is egregiously lacking in PC so that no reasonable PO would rely on it- like affidavit was just like oh yeah its there. Good info. Warrant is facially deficient in particularity. EX- like search all papers for this one document, not particular enough. Free reigh. Affidavit contains knowing/reckless falsehoods- if just negligent, its ok. Magistrate is not neutral. 2. NEW YORK- Does not recognize this doctrine! So if lacking in pc/particularity, thats it! no good faith! ISSUE THREE: WAS THE SEARCH WARRANT PROPERLY EXECUTED? 2 aspects I. DID OFFICES COMPLY W/ TERMS OF WARRANT- Like if warrant is like, you are looking for IPads, cant look in a wallet for them. Must stay with scope of warrant II. DID OFFICERS COMPLY WITH KNOCK AND ANNOUNCE RULE1. Rule- must knock and announce before forcibly entering when u have warrant, unless: Officer reasonably believes that K&A would be futile or dangerous OR Officer reasonably believes that it would inhibit investigation EX- like where guy has violent history, weapons in home v. guy w/ no criminal history or risk of destructure of evidence WARRANTLESS SEARCHES- THE EXCEPTIONS (8) I. EXIGENT CIRCUMSTANCES 1. Risk of Losing Evi- if evidence will dissipate/disappear in time it would take to get warrant, dont have to get one.

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Extracting blood- can even do this, but not in NY 2. Hot Pursuit of Fleeing Felon- if, in hot pursuit, D goes in anyones home, PO can follow. Evidence found in plain view in searching for subject is admissible. 3. Emergency Aid Exception- PO can go in w/o warrant if person is in need of mergency aid to address/prevent injury! SEARCH INCIDENT TO ARREST- arrest must be lawful. 1. Justifications- officer safety and need to preserve evidence! 2. Timing- must be contemporaneous in both time and place w/ arrest 3. Geographic Scope of Search- the wingspan of party! Includes: body, clothing, containers, anything in immediate control (regardless of what the offense was, can always search). 4. New York- can only search containers in the wingspan if- PO believes suspect is armed! EX- pull over guy for DUI. Arrest him, search his persn, find cigg box w/ coke in it. this is ok under federal law b/c w/in immediate control. Not ok in NY b/c container and no belief D was armed. 5. Automobiles searched incident to custody arrest Permissible scope- everything, including closed containers, but not trunk Location of suspect- If officer has secured arrestee (like cuffing, in the car), then can only look in vehicle if: PO has reason to believe vehicle would contain evidence relating to crime for which arrest was made. NEW YORK- Once occupant is out of the car, PO cannot search containers/bags to look for weapons/evi EX- D pulled over for driving w/o license. D is outside car with hands on hood. PO searches car and looks in purse, seizes pot Federal/MBE- this is ok b/c D wasnt secured so can look in car, if she was secured, it wouldnt be ok b/cwouldnt find evidence for driving w/o license in car NY- no b/c outside of car CONSENT 1. Standard: consent must be voluntary and intelligent. PO need not telling D right ot refuse. 2. Scope of Consent- scope is in hands of D. Can say- you can search right pocket, not left and then PO cant search left. Consent to search extends to all areas which reasonable officer would believe such consent reaches. 3. Apparent Authority- if PO obtains consent from sometone they reasonably believe to have authority to give consent, thats OK. EX- gf gives consent to search house, but didnt live there. BUT- even if owner of the house consents to search, PO must believe the consenting party has a right to occupy everything searched. EX- mom lets cops look in sons locked trunk, mom probs doesnt have consent over that b/c he is only one with key.

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4. Shared Premises Common Areas- any or all of the ppl who live there can give consent to search common area. However- if one objects, must comply w/ objecting party. Cops can search private areas of consenting parties if they say, though. AUTOMOBILE1. Standard- police need PC to believe that contraband or evidence of a crime will be found in the vehicle. 2. Where can POs search- the entire car, AND they may open any package, luggage, or any other container where evidence for which they have PC to search may reasonably be found. EX- im looking for a stolen TV in the car, cant look in backpack, b/c looking for TV! 3. Traffic Stops and Auto Searches- PO does NOT need PC to search car when he pulls it over, but must acquire it during the stop. EX- pulls guy over for speeding, checks plate, linked to drug trafficking- could search now, but wouldnt be able to just fr. Speeding. PLAIN VIEW1. Requirements PO must have lawful access to place where item can be seen PO must have lawful access to item itself The criminality of the item must be readily apparent New York: plain view seizure of obscene material requires prior judicial auth. 2. EX- chase guy in hot pursuit into house, look in closet for him (thats ok), but then look in backpack and find drugs. No ok! no lawful access to look for felon in bag, drugs not in plain view. INVENTORY SEARCHES1. Can Occur in Two Contexts Arrestees- can happen when they are booked. Vehicles- can inventory search when they are impounded. 2. PO Made Regulations- inventory searches are constitutional provided: Regulations governing them are reasonable in scope The search itself must comply w/ the regulations The search must be conducted in good faith- motivated by need to safeguard owner possession/ensure officer safety (as per Pos subjective need for safety) SPECIAL NEEDS- an interest beyond law enforcement 1. Random Drug Testing RR employees- following accident Customs agents- who are responsible for drug stuff Public School Children- who participate in extracurriculars Suspicionless drug tets are not permitted where the primary purpose is to gather criminal evidence- must be about SAFETY (EX- IN drug stop v. sobriety tests).

2. Govt Employees Desks and Files- warrantless search ok to investigate work related misconduct 3. Students Effects- yes if against school rules. 4. Border Searches- no rights @ border w/ respect to routine searches of persons TERRY- WARANTLESS SEARCHES I. TERRY STOP- a brief detention or seizure for the purpose of investigating suspicious conduct. It can take place anywhere. 1. When are you seized for 4th Am. Purposes?- When individual believes he is not free to leave/decline officers request for Qs. Factors: brandishing of weapon, officers tone or demeanor, if officer tells individual he can refuse Normal encounters are not seizures even tho most ppl would feel no right to refuse. 2. Police Pursuit and Seizure Federal- you are seized only if you submit to PO or are physically restrained (tackling). EX- if victim trips and falls during chase, not seizure. NY- PO pursit is seizure in and of itself! 3. Seizure and Traffic Stops- both driver and passenger are seized and have standing to challenge stop. Dog Sniffs- NOT A SEIZURE. So you can use them during any stop so long as they do not unreasonably prolong stop. EX- using dog to sniff car while PO checks out license on computer. II. TERRY FRISKS- a pat down of body/clothing for weapons if belief D is armed and dangerous 1. What Can you Seize in Terry Frisk?- if search was incident to arrest can bring in almost everything. Majority- can always seize weapons. But if officer finds contraband without manipulation, that also can be seized. Like feel crack pipe but dont manipulate it. NY- can seize item only if it feels like a weapon. So it feels like crack pipe, no dice. 2. Car Frisks- when conducting traffic stop if officer believes suspect is dangerous PO can look in passenger cabin, but ONLY areas where weapons would be. 3. Protective Sweeps- in an in-home arrest, can make sweep of house to look for other criminals who may threaten safety III. EVIDENTIARY STANDARDS 1. Standards for Terry Stops and Frisks- only reasonable suspicion! Application to STOPS: rquires specific and articulable facts to form belief that criminal activity is present. This is objective. Application to FRISKS: specific facts that D is armed, its all aobut officer safety. EX- PO sees teens at 2am pushing baby carriage in desolate area. Yes to stop, no to frisk unless facts as to armed and dangerous. 2. Evidentiary Standard for Protective Sweeps- need reasonable suspicion that another person is present

Area- immediately around place of arrest, can look in whole house.

EXCLUSIONARY RULE I. FOURTH AM. LIMITS ON EXCLUSIONARY RULE 1. Case in Chief v. Cross-Exam- unconstitutionally obtained evidence may not be used by Pros, but can be used to impeach on cross-exam. 2. Knock and Announce Violations- dont get exclusionary rule 3. Police Misconduct- in order to get exclusionary rule, PO misconduct must be deliberate, reckless, or grossly negligent EX- book keeping error that results in wrongful arrest is not egregious unless over long time and they knew 4. Officers Reasonable Mistakes- doesnt get exclusionary rule. EX- PO goes into apt with warrant to search apt on 2nd floor. Two doors on 2nd floor, thought it was same apt, but its not finds drugs in one not supposd to be in. thats ok. II. FRUIT OF THE POISONOUS TREE- evidence you get as a result of a 4th Am. Violation. Inadmissible at case-in-chief. 1. Admitting Tainted Fruit- must be some break in causal link btwn original 4th am violation and evidence obtained. Independent Source- where discovery of evidence is distinct from original violation. EX- if other officers got evidence thru legal means Inevitable Discovery- if evidence would have been discovered anyway. EX- looking for dead girls body anyway when they got unlawful confession Attenuation- if there is passage of time and intervening events that purged taint and restored Ds free will. EX- illegal arrest, guy released, comes back anyway to confess. WIRETAPPING AND EAVESDROPPING AND ARRESTS I. WIRETAPPING- four requirements to do it 1. Suspected Persons- warrant must name the suspected persons whose convos are to be overheard 2. Crime- must be PC that a specific crime has been committed 3. Conversations- warrant must describe which convos specifically can be heard 4. Time- must only be for limited time period. NY time period- 30 days. II. EAVESDROPPING- if someone wears a wire, too bad, you assume risk by telling ppl info III. LAW OF ARREST- can arrest for any crime, even if punishable by fine. 1. When does Arrest Occur- when someone is taken into custody, against their will for prosecution or interrogation De Facto Arrest- if you are compelled to come to station for questioning or fingerprinting 2. Standard of Proof to Arrest- PC! 3. Warrants and Arrests- you DONT need them if arresting in PUBLIC PLACE Homes- need warrant, absent emergency

Homes of 3rd Parties- arresting suspect in home of 3rd party need arrest AND search warrant 4. Common Enterprise Theory in Traffic Stops- if PO discovers evidence that suggest common unlawful enterprise, PO can arrest any or all of them. Like finding drugs. CONFESSIONS- have due process, sixth am right to counsel, fifth Miranda, and NYs indelible right to counsel doctrine. ONLY TESTIMONIAL I. EXCLUDING CONFESSION PURSUANT TO DUE PROCESS 1. Standard- if Ds confession was involuntary due to police coercion that overcomes suspects will. EX- so not like im crazy my confession isnt voluntary. II. RIGHT TO COUNSEL UNDER 6TH AM. express constitutional guarantee! 1. Rules Attaches when D is formally charged Applies at all critical stages (arraignment, probate hearings, interrogation) The right is offense specific- so if interrogation about uncharged matter, no right. So can interrogate all you want about uncharged crimes. 2. Violating the 6th Am If PO deliberately elicits statements AND D did not knowingly, intelligently and voluntarily waive right. Deliberiately elicts is objective EX- D has atty, PO questions anyway w/o atty present, violates b/c no waiver and dried to elicit statements III. NEW YORKS INDELIBLE RIGHT TO COUNSEL- greater than 6th Am. 1. Rule- does NOT attach only at formal charged. Attaches when: significant judicial activity where D may benefit from counsel As such- you cant interrogate about matters not formally charged for. Waiver- takes place in presence of atty. Often Tested EXs- seems to turn on whether cops know whether atty is there/retained in singifcant judicial activity Ds statement taken after atty at station, demanded access to D, D unaware of attys presence, statement held inadmissiable anyway b/c atty there D called atty, atty said dont talk. D told POs and confessed anyway. Confession not admissible b/c atty right to be there attached @ phone call. IV. FIFTH AMENDMENT MIRANDA1. Four Miranda Warnings- right to remain silent, anything can/will be used against you in Ct, have right to atty, one can be appointed to you 2. Requirements Custody- if its environment of police domination and coercion such that freedom of action is limited in significant way. Objective test. EX- go to Ds bedroom at 4am and question him throughout the night and morning. This is interrogation even tho @ Ds house Interrogation- if PO knew or should have known question is likely to elicit incriminating response. This is more subject than 6th Am

 Does NOT apply to spontaneous statements. Doesnt apply to PO informants in jail, if no formal charge, b/c no domination/coercion 3. Public Safety Exception- dont need to mirandize if you are asking qs in interst of public safety. Like- where is the gun?! If you need to find it right away b/c danger 4. Random exception- if no Miranda, and then made to speak @ a lineup, not testimonial! So its ok. 5. Conveying Miranda Rights- statements are admissible if D gives testimony so long as PO: Reasonably conveyed core of Miranda rights And obtains waiver. 6. Valid Miranda Waiver- two core requirements Knowing and Intelligent- must understand nature or rights AND consequences of abandoning them Voluntary- voluntary if no PO coercion NY- if police use deception or concealment to keep parent away from child who is being interrogate, kids waiver is invalid 7. Executing the Waiver- waiver can be IMPLIED! EX- if PO read you your rights and you give uncoerced statement, thats fine. Atty need not be there, nor must you tell D atty called. 8. Burden of Proof- Pros must prove waiver was made pursuant to preponderance of evidence. 9. Invoking Miranda: Right to Remain Silent Must be unambiguous (like I dont wanna talk). POs must scrupulously honor the invocation Cant badger Must wait significant amount of time before asking more Qs Must obtain valid Miranda waiver before reinitiating Qs. SILENCE CANNOT BE USED AGAINST A D! whether its silence to a PO or anyone else. 10. Invoking Miranda: Right to Counsel Once suspect asks for counsel all interrogation must STOP, unless initiated by D. NOT OFFENSE SPECIFIC! Cant ask about anything! Request must be sufficiently clear When suspect is released, after 14 days, PO can get valid waiver so long as : knowing, intelligent, voluntary 11. Limitations on Evidentiary Exclusion as Applied to Miranda Violationscant use in case-in-chief, can be used to impeach. Physical Fruits- NOT suppressed. If you confess you did it under violation and tell me where gun is, gun comes in, not statements. Subsequent statements- if I make Miranda violation but then I get a waiver, subsequent statements after waiver ARE admissible so long as no coercion Miranda Violations Admitted at Trial- What to do? if D is guilty, govt must show, beyond reasonable doubt, that error was harmless, and

D would have been convicted anyway. (applies to evi admitted under 4th Am violations too). PRE-TRIAL IDENTIFICATION- three types, line ups, show ups (one on one), and photo arrays I. SUBSTANTIVE CHALLENGES TO PRE-TRIAL ID 1. Denial of Counsel 5th Am. Miranda- no right to counsel in pre-trial IDs Sixth Am- right to counsel exists, after formal charges, at lineups and showups not photo arrays!** Bar New York- can get counsel at line-up, before filing of charges, if you are aware you have counsel AND you request counsel. 2. Violation of Due Process- if ID procedure is unnecessary suggestive that it creates substantial likelihood of mis-ID. Proof- court must weight: reliability v. corrupting effect 3. Remedial Considerations- if you violate above, you exclude Ws incourt ID. However- even if violative, it COULD come in if pros can prove observation is based on other evidence. Factors: Ws opp to view D during crime The certainity of Ws ID Specificity of descript to police MISC. TOPICS I. GRAND JURIES 1. Function- issue indictments, secret proceedings, dont have to use in charging process. 2. New York- indcments must establish all elements AND provide reasonable cause to believe accuse committed offense. II. PRETRIAL DETENTION1. Standard of Proof- govt needs PC that D did crime to hold D over for trial and detain him before trial. 2. Detention Hearings- unnecessary to determine PC is: GJ issued indictment OR magistrate issued arrest warrant. 3. First Appearance- soon after arrest D must be brought before magistrate who will: advise him of his rights, set bail and appoint counsel if necessary. Bail decisions are immediately appealable. III. TRIAL RIGHTS 1. Evidentiary Disclosure- Pros must idisclose to D all material exculpatory evi 2. Judges: D has right to unbiased judge (no malice towards D or financial interest) 3. Juries Right to Jury Trial- criminal D has right to jury trial when max authorized sentence exceeds 6 months Number of Jurors- must be at least 6 in Crim trial New York- requires 12 person juries, but D can waive and only get 11.

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o Challenging Jurors for Cause- can do this if not partial/less than 18/etc. Unanimity of Jury Verdicts- if 6 person jury- must be unanimous. If 12- need not be unanimous. New York requires unanimous! Cross-Sectional Requirement- must have diverse pool. Even if you have a jury of 60 yr old white women, thats ok so long as pool was appropriately diverse. 4. Peremptory Challenges- can do it and not state reasons but cant exclude Ws based on race or gender 5. Confronting Adverse Ws- 6 Am right to confront does NOT apply if important public policy concerns. EX- child Ws. 6. Right to Effective Counsel- two prong test to claim ineffective assistance Counsels performance was deficient AND outcome of trial would have been different but for deficiency. REALLY HIGH BAR. EX- guy sleeping thru trial was still OK. If D is not guilty- almost ALWAYS deny ineffective counsel arg NY- even great protection to attys. GUILTY PLEAS AND PLEA BARGAINING1. Valid Plea- must be voluntary and intelligent 2. Plea Taking Colloquy- judge, on the record, establishes: Nature of charges AND consequences (of waiver to right to plead not guilty/waiver of right to a trial) 3. Withdrawing a Guilty Plea- may withdraw guilty plea after sentencing if: Plea was involuntary due to flaw in colloquy There is a jrx defect D prevails on ineffective counsel argument Pros fails to fulfill plea bargain PUNISHMENT- 8th Am. Prohibits cruel and unusual punishment, must be grossly disproportionat to seriousness of crime 1. Eight Am and the Death Penalty- would violate 8th if it created automatic category for imposition of death penalty! Evidentiary Requirements- in deciding whether to impose, must consider all potentially mitigating evidence Categorical Exclusions- mentally retarded Ds, Ds who are presently insane, Ds under 18 @ tiem of offense. DOUBLE JEOPARDY- Ccant be punished for same offense in same sovereign 1. When Jeopardy Attaches- not in civil proceedings! So could be pros in civil proceeding and also in crim Jury Trial- when jury is sowrn Bench Trial- when first W is sworn Guilty Plea- when Ct accepts Ds plea unconditionally 2. Same Offense Requirement- are not the same if they have different elements. NY Approach- NY uses transaction test- which requires that D be charged with all offenses rising from single transation unless: Offenses have diff elements

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Contain element not in other and implicate different harms, One is for criminal possession and the other is for us, Or each offense involves harm to diff victim 3. Greater and Lesser Included Offenses- are 2 offenses the same if on offense has an element not in other. EX- auto theft has one additional element than joyriding but otherwise the same. If tried for greater or lesser offense, cant be tried for the other later on1 4. Same Sovereign Requirement- who is the same? State and fed govt- No Different States- no State and municipalities w/in them- yes 5. Four Exceptions to Double Jeopardy that Permit Re-Trial Hung jury Mistrial for manifest necessity. EX- defect found in indictment and couldnt cure it Successful appeal- remand for retrial Breach of plea agreement. EX- B commits murder, bargains w Pros to testify against T. B gets lesser offense of 2nd degree murder. B doesnt testify. Can recharge for first degree b/c breached terms. FIFTH AM. PRIVILEGE AGAINST COMPELLED TESTIMONY 1. Who may assert it- anyone- Ds, Ps, Ws, civil proceeding. Anywhere where someone testifies under oath. 2. NY- cannot be asserted in GJ! 3. When to Assert- must be asserted at FIRST opp. Of being under oath. EX- I testify under oath at city council, later plead 5th on same issue, no, already testified under oath and that was first opp. 4. What does it apply to? Testimony! Not like, taking of blood, etc. 5. If D Pleads Fifth- Pros CANNOT comment on it! 6. Three Ways to Eliminate the Privilege Grant of Immunity- if you have immunity, you may testify but they cant use it against you or anything that coems out of such testimony. EX- I testify and leads to gun, cant use it against me. NY- uses transactional immunity- broader than use and derivative use since it shield Ws from pros for any transaction they testified about. D taking the stand- cant plead the 5th if you take stand and they cross you SOL- unavailable if SOL has run since Ws testimony couldnt expose him to liability. NEW YORK- have right to speedy trial! Remedy- dismissal.