Criminal Procedure

Miranda Request for Counsel

Must be unambiguous and specific

If so, all Q'ing must stop, on ALL subjects

If Def agrees to answer Qs orally but requests presence of counsel before making any written statements, what result?

Def's oral statements are admissible (not coerced)

Is there a duty to inform a Def that his attorney is there or on way?

NO duty. If officers interrogate Def w/o telling him his atty is on the way, ADMISSIBLE.

If Miranda given and adversarial proceedings have not commenced, can the police lie to Def?

yes

Miranda does not apply to:

Spontaneous statements made by Def

Voluntary confessions made by Def

What is needed for a stop & frisk?

No PC needed to stop, just a reasonable suspicion of criminal activity

If the officer reasonably believes person is armed, he may do a protective frisk, LIMITED to pat down for weapons. But may reach into clothing to seize items reasonably believed to be weapon or contraband

9 Exceptions to Search Warrant (PEACE WISH)

1. Plain view
2. Evanescence of evidence
3. Automobile
4. Consent
5. Eavesdropping
6. Wiretap
7. Incident to lawful arrest
8. Stop & Frisk
9. Hot pursuit of fleeing felon

What does exclusionary rule NOT apply to?

Grand jury proceedings, which may use even inadmissible evidence to determine PC

Civil cases

Parole hearings

When do Miranda rights attach?

When there is CUSTODIAL INTERROGATION

When do 6th amendment Massiah rights attach? (right to counsel)

After D formally charged with a crime. Atty MUST be present for questioning (unless D knowingly and intelligently waives the right)

What is the Double Jeopardy test?

Crimes not the same offense if each crime requires proof of an additional element that the other does not require (e.g., ABC v. ABX)

What are the 6th amendment rights? "The Federal Crime Caused Severe Penalty Daily"

Trial by jury
Fair & impartial
Confront witnesses
Counsel
Sentencing
Public trial
Due process

What does the exclusionary rule protect against?

Evidence collected in violation of 4th (search), 5th (miranda, due process), and 6th (counsel) rights

What defenses to cops have to exclusionary rule?

Good faith:
i) reliance on judicial opinion that changes
ii) reliance on a statute later declared unCon'l
iii) reliance on defective search warrant (EXCEPT: affidavit lacks PC so that no cops could rely on it, warrant fails to state with particularity place & things to be searched, copes lied to magistrate, magistrate abandons his role as judge)

Exceptions to the fruit of the poisonous tree doctrine

i) independent source
ii) inevitable discovery
iii) intervening acts of free will by Def (hires atty after his unlawful arrest and then goes back to confess)

When are arrest warrants needed?

i) not for arrest in public
ii) need PC to arrest you to get you to come to station
iii) non-emergency arrest in home requires arrest warrant

Search & Seizure test & analysis

Ask:

4th amendment right? (i) govt conduct, (ii) reasonable expectation of privacy

Do police have a valid search warrant? (i) yes, then valid search, (ii) no warrant, is there a valid exception?, (iii) invalid warrant, is there exclusionary exception?

When do you have reasonable expectation of privacy?

Automatic: own premises or live on premises, overnight guests

Sometimes: own property seized, legitimately present when search took place

None: i) sound of voice, ii) handwriting, iii) paint on car, iv) bank acct records, v) monitoring location of car in public, vi) open fields, vii) airspace above, viii) odors from luggage, ix) garbage on curb

Who has no reasonable expectation of privacy?

i) passengers in car where they claim they don't own the car or contents (no privacy interest)
ii) guy on premises to deal drugs

Warrant requirements:

i) PC
ii) State w/ particularity the place and things to be searched
iii) neutral and detached magistrate

Distinguish search incident to arrest in auto context with PC to search car:

Both don't require a search warrant.

1. Search incident to arrest: just the compartment and boxes inside

2. PC (auto exception): if PC to believe evidence of crime in car: can search ENTIRE car including the trunk