Criminal Procedure w/NY Distinctions

Fourth Amendment Search and Seizure: Eight Step Approach

1. Government Conduct?
2. REP?
3. Facially Valid Warrant?
4. (Good Faith)(MBE ONLY)
5. Properly Executed Search?
6. Exception?
7. Exclusionary Rule?
8. Fruits of the Poisonous Tree

1. Government Conduct

Need 1 of the 3 Types of Government Actor:
1. Publicly Paid Police (on/off
duty)
2. Private Citizens, Acting on
Direction of Police.
3. Privately Paid police
Deputized w/Power to
Arrest.

2. REP: Protected and Unprotected Areas.

Protected Areas: Person, Papers, Effects, and Houses (incl. Curtilage: area of domestic use)
Unprotected Areas: Patty Achieved A Glorious Victory Over Her Opponents

2. REP: PAAGVOHO

Pain Scrapings
Account Records Held by a Bank
Air Space (can be seen in public)
Garbage left at curbside
Voice
Odors (from car or luggage)
Handwriting Style
Open Field

2. REP: Standing

Owners/Residents: Always
Overnight Guests: Always*

Individual at Another's Residence Solely for Business Purposes: NEVER

Owners of Seized Property:
Always if there is REP in area of
from which property is seized

Passengers in Cars:
Only if passenger has REP in
the Item searched or seized
*NY: Always Has Standing

3. Facially Valid Warrant?

--CL STD: fair probability that
contraband or evidence of
crime will be found in area
searched. Hearsay is
admissible for this purpose.
--Informant Tips are allowed, but
must be corroborated to the
point of allowing a common
sense practical determination
re: existence of PC
--NY STD: Aguilar Spinelli
----Applications for a warrant
must demonstrate both
the veracity or reliability of
the search and the basis of
the informant's knowledge
----Where Police do now know an
informer's basis of knowledge
they must have obtained suff.
details suggestive of or
directly related to the crim.
activity in question

3. Facially Valid Warrant and Particularity

STD: warrant must specify place to be searched and items to be seized
---if particularized description is contained in an affidavit, the affidavit must be incorporated into the warrant itself.

4. (GOOD FAITH)

Good Faith Overcomes Const. Defect Except When:
--Egregriously Lacking Information of PC
--Lies
--Bias

defect re: PC and Particularity

5. Properly Executed Search

SCOPE: Only areas that have been authorized and are capable of holding the item you are looking for.

KNOCK AND ANNOUNCE: Rule: Must knock and announce presence before forcible entry unless: reasonable belief that doing so would be futile, or dangerous, or inhibit investigatory purpose
-knock and announce violation does not lead to suppression of evidence

6. Exception: ESACAPIST

Exigent cirumstances
Search incident to arrest
Consent
Automobile
Plain view
Inventory
Special needs
Terry stops and frisks

6. Exception?: Exigent Circumstances

EE: ev that will disappear or dissipate in the time that it would take to get a warrant
HP of Fleeing Felon: allowed to enter a suspect's home or that of a third party to look for him, and evidence discovered in plain view during HP is admissible

6. Exception?
Search Incident to Arrest

-Arrest Must be Lawful
-Search Must be CONTEMPORAENEOUS in TIME and PLACE w/Arrest
-Geographic Scope is the Wingspan Including the Body and Clothing

*NY Greater Protection to Arrestee:
-Officer must suspect arrestee is armed in order to search containers in the wingspan

6. Exception?
Search Incident to Arrest Automobiles

-Allowed to search interior of cabin including closed containers but NO TRUNK.

*NY Greater Protection:
-once an occupant is removed from the car, police may not remove closed containers or bags to look for weapons or other evidence

*NY and Arizona v Grant:
-vehicle may be searched where there is reason to believe it may contain evidence relating to the offense for which arrest was made

Unsecured Arrestees:
-automobile searches of unsecured arrestees are permissible since such individuals may gain access to weapon/evidence inside the car

6. Exception?
Consent

-Must be VOLUNTARY and INTELLIGENT.
-Police Need Not Tell Indiv. of Right to Withhold Consent.
-Officer's Reasonable Belief of Consenter's Apparent Authority Immunizes Search.
-Shared Premises: Any1 can consent, dissenter has last word.

6. Exception?
Automobile

-Police need PC of contraband or evidence of the crime will be found in the vehicle to search.
-PC May Arise at any time during traffic stop.

6. Exception?
Plain View

-Lawful Access to Plain View Location
-Lawful Access to Item Itself
-Criminality of Item is Immediately Apparent
*NY-PV Seizure of Obscene Material Only Allowed w/Prior Judicial Authorization

6. Exception?
Inventory Searches

Occurs When: Arrestee Booked, Vehicle Impounded

Constitutional where rules governing are Reasonable in Scope and Search Complies

6. Exception?
Special Needs

1. Random Drug Testing
2. Parolees and Their Homes
3. Government Employee's
Desk/Files
4. Students "effect" in Public Schools
5. At the Border

Random Drug Testing

-Public School Students Participating in Extra-Curricular Activities
-Persons Seeking Customs Employment in Connection to Drug Interdiction.
-Railroad Employees Involved in Accidents

Parolees and Their Home

Need Reasonable Belief that Contraband is Present; OR
Statute That Lets You Search Whenever

Government Employee's Desk/File

Allowed where scope of search is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct

Student' Effects in Public Schools

Applies to purses and backpacks where officials seeks to investigate violations of school rules, e.g., smoking prohibition on school grounds

At the Border; Airports

Neither citizens nor aliens have 4th amendment rights at the border with respect to routine search of persons and effect

6. Exception?
Terry Stop / Frisk

To Stop you need RAS of criminal activity.
--Stop meand a brief detention or seizure for the purpose of investigating suspicious conduct, officer may ask you to state you name (not arrest so no need for PC)
To Frisk you need RAS of criminal activity and RAS that suspect is presently armed and dangerous
--Frisk is a patdown of the body and outer clothing for weapons

Terry Stop / Frisk and Automobiles

Cops may order occupants out of a stopped vehicle and frisk them as well as search passenger compartment upon reasonable belief that an occupant is armed and dangerous.

Terry Frisk and Admissibility:
Plain Feel Doctrine

Weapons Can Always be Seized
Contraband Only Seized Based on a Pat and not Manipulation
*NY: Only Items that feel like weapon can be seized

Terry Stop a Seizure?

Std: based on totality of circumstances a reasonable person would not feel FREE TO LEAVE or DECLINE AN OFFICER'S REQUEST TO ANSWER QUESTIONS.
Factors to Consider: brandishing of a weapon, tone/demeanor, informed of right to refuse consent?

Seizure?
Running from Cops.

Only seized if person stops (submits to officer's authority), or Officer physically restrains him.
*NY: Police pursuit = seizure

Seizure?
Traffic Stop.

Driver and All Passengers are Considered Seized (all has authority to challenge stop)
Dog Sniffs: Permissible provided the sniff does not prolong the stop unreasonable

7. Exclusionary Rule:
Evidence of UNC S&S Admissible?

Rule: Evidence whether physical or testimonial obtained in violation of a federal statutory or constitutional provision is inadmissible against the indiv. whose rights were violated

Limits to Exclusionary Rule

-Impeaching D's Testimony on Cross
-Exempt Proceedings: grand jury, civil, parole revocation
-Knock and Announce Violations
-Police Acting in Good Faith
---reasonable mistake by officer

8. Fruits of the Poisonous Tree

Rule: Evidence obtained from the exploitation of UNC evidence must is also inadmissible in Prosecutor's case in chief.

8. Fruits of the Poisonous Tree:
Exceptions

Rule: fruits allowed where you show a break in the causal link:
-Independent Source Doctrine
-Inevitable Discovery Doctrine
-Attenuation Doctrine (D's freedom was restored through passage of time and intervening events)

Wiretapping

Need Search Warrant: Polly Prefers Cranberry Tarts:
1. Probable Cause
2. Persons (warrant must name the persons expected to be overheard)
3. Conversations (warrant must particularly describe the conversations that can be overheard)
4. Time (must be for a strictly limited period of time)

Eavesdropping

Unreliable Ear Doctrine and Assumption of Risk: If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no fourth amendment claim, you assume the risk the other party will not keep the conversation private.

Law of Arrest

-Need Probable Cause to take someone into custody against their will for interrogation and prosecution.
--De Facto Arrests: police compulsion of an indiv. to come in for questioning or fingerprinting.

When do you Need a Warrant for an Arrest?

To arrest someone in their home you need both a search and arrest warrant, unless there is an emergency

Public places, including outside one's home do not require a warrant.

Arrest and the Common Enterprise Theory

Allowed to arrest any or all members based on a reasonable inference of shared dominion and control over contraband.

Challenging a Confession:

Due Process (14th)
Right to Counsel (6th)
Miranda (5th)
*NY: Indelible Right to Counsel

Confessions: Due Process Challenge

SHOW INVOLUNTARINESS: Confessions (self-incriminating statements) that are the product of Police Coercion are inadmissible.
Harmless Error Test Applies.

Confessions: Right to Counsel (6th)

-Express Constitutional Guarantee: Not Implied
-Attaches Once a D is Formally Charged
-Offense Specific: Applies only to charges filed against you, no protection for uncounselled interrogation for other uncharged criminal activity.

Confessions: NY's Indelible Right to Counsel

Greater Protection than 6th
-Attaches whenever there is significant judicial activity before the filing of a accusatory instrument such that a D may benefit from the presence of counsel.
Applies to situation of unrelated charge questioning.

Miranda

Implied Constitutional Right grounded in the self-incrimination clause of the 5th amendment.
Implied means there is greater flexibility for the court in making their decisions that there would be for an Express right like the 6th right to counsel.

Miranda Required When...

CUSTODY + INTERROGATION
-Custody for miranda purposes means the atmosphere is characterized by police domination and coercion such that their freedom of action is limited in a significant way.
---ex: cop posing as cellmate vs. four cops around you in bed at home
-Interrogation for miranda purposes means any conduct police know or should have known was likely to elicit an incriminating response.

Exceptions to Miranda

SPONTANEOUS STATEMENTS: incriminating statements made that are not the result of an interrogation get no protection
PUBLIC SAFETY EXCEPTION: custodial interrogations prompted by an immediate concern for public safety make Miranda warnings unnecessary and incriminating statements therefrom are admissible.

Miranda Waivers Must be...

KNOWING and INTELLIGENT (suspect understands the nature of rights and consequences of abandoning them) + VOLUNTARY
(not the product of police coercion)
Burden of Proof: Must shows waiver by a PPEV (silence of a shoulder shrug will not suffice)

NY Rules Re: Children and Miranda Waiver

Where police use deception or concealment to keep a parent away from a child who is being interrogated the waiver may be deemed invalid.

Assertion of Miranda Rights

Keeps Quiet: Cops must honor request and obtain a valid waiver prior to resuming questioning.
Lawyers Up: All interrogation must stop, unless suspect initiates.
Not Offense Specific: Cannot ask about any criminal activity where 5th is asserted.

Miranda and the ER

IMPEACHMENT: Miranda Violating Evidence can be used to impeach D's testimony on cross but not the testimony of third party witnesses.
LATE WARNINGS: If initial statements made were the result of inherently coercive police tactics that are offensive to due process, subsequent statements post-warning will not be allowed.
PHYSICAL FRUITS: unclear whether the nontestimonial fruits of Miranda violating statements are admissible.

Pre-Trial Identification: Procedures and Challenges

6th RTC applies to Line-Ups/Show-Ups that take place after formal charging, not Photo Arrays.
*NY: RTC attaches to line-ups before formal charging where police know you are lawyered up and you request his presence.
Due Process Violations exist to all pretrial identification procedures that are shown to be so unnecessarily suggestive that their is a substantial likelihood of misidentification.

Remedy for UNC Pre-Trial ID

EXCLUSION of any in-court ID tainted by UNC pre-trial id.
Exception: Show in-court id is based on observations exclusive of the unc pre-trial id, e.g. evidence of witness' other opportunity to view D, certainty of the ID, and specificity of orig. description provided to police.

Holding a Defendant for Trial

1. Grand Jury
2. Gerstein Hearing
3. Arrest Warrant

Grand Jury

Private Hearing where Indictments are Issued (not required)
*NY: Indictment requires establishing all element of the crime and providing reasonable cause to believe accuse committed it.

Pretrial Detention (Gerstein Hearing)

PC determination to decide whether you can hold and detain suspect until trial.
Unneccessary if there is a GJ indictment or an arrest warrant.
After Arrest: advise suspect of rights, set bail and appoint counsel if necessary.
-decision regarding bail are immediately appealable.

Brady Rule

Prosecutors Must Disclose All Material Exculpatory Evidence

Right to an Unbiased Judge

Judge Must have No Financial Stake in Outcome of the Case and No Actual Malice Against D

Right to a Jury Trial

Maximum Authorized Sentence Exceeds 6 Months
Number of Jurors:
-Const: at least 6
-NY: Uses 12, D can waive to allow 11 to participate
Unanimity Requirement: required w/6 not when there is more than 6

Jury Makeup

Cross Sectional Requirement: pool from which jury is drawn must represent a cross section of the community, (all white women jury allowed where pool is properly picked)

Peremptory Challenges

No Race or Gender: both sides can challenge juror without stating their reasons for doing so but they cannot be used by either side to exclude perspective jurors based on race or gender

Confrontation Clause

Right to confront adverse witnesses exists under the 6th, but does not apply where a face to face confrontation would contravene important public policy concerns. ex: traumatizing a child witness.

Right to Effective Assistance of Counsel Test

1. Counsel's performance was Deficient; and
2. But-for deficiency the outcome would have been different.
Note: Very strict test, meaning unless there is some colorable argument that D is not guilty, these claims are losers

NY and Unlicensed Representation

Reversal of Guilty Verdict is Not Required When One But Not Both of 2 Atty's Representing D Is Later Found to Be Unlicensed

Plea Taking Colloquy

1. Nature of Charge
2. Maximum Auth Sent. and any Mand Min.
3. D's Right to Please Not Guilty and Proceed to Trial.
4. D's Plea Waives Trial and Causes Direct Move to Sentencing.

Withdrawal of Guilty Plea Allowed...

1. Problem w/ Colloquy
2. Jurisdictional Defect (wrong court took plea)
3. D Prevails on Ineffective Assistance of Counsel Claim.
4. P Fails to Fulfill his Part of the Bargain.

Punishment: 8th Amendment Rights

Rule: 8th prohibits criminal penalties that are Grossly Disproportionate to the Seriousness of the Offense committed.

8th Amendment and DP

Rule: Creating automatic categories for the imposition of the DP is UNC.
EVIDENCE: Jurors must be presented with all evidence with potential to mitigate imposition of DP.
EXEMPT CATEGORIES: Mentally Retarded, Presently Insane, Under 18 at time offense occurred.

Double Jeopardy

Rule: Person cannot be put twice in jeopardy for the SAME OFFENSE of life or limb by the SAME SOVEREIGN, (exception for certain trial outcomes in T1)

Jeopardy Attaches When...

Jury Trial (Jury Sworn In)
Bench Trial (1st Witness Sworn)
Guilty Plea (Court Unconditionally Accepts)
Civil Proceedings (doesn't apply)(ex: SEC insider trading prosecution can later be redone by the US Atty as a fraud action)

SAME OFFENSE

Rule: Two Offenses are not the same for DJ if each has an element the other does not.
-Greater/Lesser Offenses are the same so trial for one will bar later trial for other.
*NY: ALL CRIMES FROM TRANSACTION AT ONCE UNLESS:
-offenses have substantially different elements; or
-each offense contains a single element not in the other and they vindicate different harm; or
-one if for criminal possession and the other is for use; or
-each element involved a harm to a different victim

Same Sovereign

State and Federal (not same)
State A and State B (not same)
State A and Municipality of A (Same)

Exceptions Allowing DJ

1. Hung Jury
2. Mistrial for Manifest Necessity (ex: D needs to be hospitalized halfway through the trial).
3. Retrial After Successful Appeal.
4. Breach of Plea Bargain by D.

5th Amendment Privilege

Can be asserted by anyone at any proceeding where individuals are asked to testify under oath, but it MUST BE Asserted at First opportunity of it is Forever Lost
Prosecutors Must Not Comment Negatively on invocation.
*NY: 5th Amendment does not apply to Grand Jury Proceedings

Scope of the 5th

Applies only to Compelled Testimony and Not to the Use of Your Body, e.g., prosecution using blood or urine samples

5th Privilege Does Not Apply...

1. Grant of Use and Derivative Use Immunity (P not allowed to use you testimony or anything derived from it to convict you)
2. D Takes Stand (waiver of 5th as to anything w/n proper scope of cross)
3. SOL (witness' testimony could not expose them to criminal prosecution b/c SOL has expired)