Criminal Procedure 2

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Arrest & Warrant Requirement: Pulic Place - no warrant requred, just PC
D's Home - warrant required bc not just seizing person but invading home
Another Person's Home - would need a search warrant
Probable Cause - Definition: need goot reason to believe this peson had goods; reasonable articulable facts
Search Warrant - the document: must state with reasonable detail the place to be searched and thing to be seized - must be authorized by dually authorized official
Search Warrant - the affidavit: sworn request by prosec or cop for warrant; must estb within 4 corners why search is entitled
How to invalidate the affidavit - 3 elements: 1) intentional lie on it
2) Falsity must relate to a material fact
3) must be an intentional lie by govt officer who signed the affidavit
Good Faith Exception to Invalid Warrant - 3 elements: 1) Good faith belief on behalf of cops
2) Reasonable relieance that it's a valid warrant
3) Warrant used - and later invalid
Knock & Announce Rule: Const'l right to require announcement of presence bc great intrusion if you don't want cops coming. Exception - if evid may be destroyed
6 Exceptions to Warrant Requirement: 1) Search incident to Arrest
2) Automobile Exceptions
3)Plain view
4) Consent
5)Stop and Friks
6) Emergencies
Search Incident to Arrest: of her person, at her home (no addit'l reason required) and can search property at her home in the area of her immediate control, while under her control (can't re-enter house when D in car) - while she's in custody. NOTE: arrest must be valid or else everything after is NOT
Automobile Exceptions: Lesser expecation of privacy in cars; *probable cause that car contains evidence; on the open road - no warrant needed; at police station - no warrant needed
Rule: searching containers in the car: if PC allows search of car, cops could search any containers that may conceal the evidence
Inventory Search of Car: allowed if car is in lawful custody and is routinely done pursuant to SOP
Sobriety Checkpoints - 3 required elements: 1) Routinely done
2) specific purpose- car related
3) time limited
Plain View Exception: If cop is lawfully somewhere, and views something open to public, can testify as to what he views
Consent exception to warrant requirement AND - 3rd party consent: must be voluntary; warnings not required
-to have third party consent, must appear to have reasonable basis for belief
NOTE: LLs and hotel mgrs CANNOT give consent
Stop & Frisk exception: NO PC, limited intrusion - 3 step process
1) Reasonable suspicion
2) Detain and question- relevant questions to suspicion and if answers are insufficient -
3) Frisk, reach in - pat down outer garments for weapons
Emergencies - types of exigent circumstances allowing no warrant: -Hot pursuit - can rush in house
-Scene of homicide
-Sweep
School Searches: 4th Amendment applies! No warrant necessary nor PC, just * reasonable suspicion
Confessions - Test, Std, and Procedure: TOC; preponderance of evidence; judge decides voluntariness -making finding on the record
MIRANDA rule- Fifth Amendment Std: Warnings are required for stmts given in response to custodial interrogation; Remedy = exclusion
Interrogation: Test: must be in custody and responding to interrogation = any action by police reasonably likely to elicit a response
Custody: Test: objective std; freedom of movement has been subst'lly limited. NOTE - could be in custody in your own home
Miranda- Four stmts: -right to remain silent
-anything can and will be held against you
-right to an atty
-atty will be supplied if can't afford one
Waiver of Warnings: need not be explicit- must be voluntary and willing; BOP on govt to show warnings given and understood and D freely spoke.
Resumption of Questioning -If D requests silence -if D requests atty: Silence: admissible, so long as there's a break in time and fresh set of warnings.
Atty: NOT admissible, can never reinitiate questions tho D can.
Impeachment: allowed if D takes the stand - earlier confession (though Miranda violated) CAN be used to impeach credibility (not show guilt) ONLY if earlier stmt was voluntary (if not - DP violated)
Miranda and doctrine of "fruit of the poisonous tree" - resulting evidence admissible?: SC says confession itself is excluded if MIranda violation was purposeful - if NOT purposeful - resulting evidence admissible.
If illegal pretrial identification - is witness identification in court allowed? Test: admissible if in court identification is INDEPENDENT from pretrial identification. Test = reliability
Witness ID and Right to Counsel: 6th Amendment - if D formerly charged - adversary judiciary proceeding, entitled ot have atty present during line up
Exception to when 6th Amd Right to Counsel and atty not necessary: -Before an adversary judicial proceeding bc D must be confronted for atty to be allowed
Standing - Test: D must show sufficient privacy interest invaded by search; must show some greater involvement than just being there - i.e. overnight guest
Fruit of Poisonous Tree - 3 part Analysis: 1) Standing: required
2) NOT but for test - does "taint" remaind from tree? if not, allowed (voluntary stmt)
3) Was there "poisonous tree"? - underlying illegality?
Right to Speedy Trial - Four Factors: 1) Length of Delay
2) Reasons
3) Demand - by D? Did D cause delay?
4) Prejudice - impact - Ws dying?
When Right to Speedy Trial Attaches: after arrest or formerly charged
SOL - Rule: exists at what it was at time of crime
Pretrial Publicity - How judge can remedy this: 1) Delay trial
2) Sequester Jury
3) Change of venue
Trial - SC Rule regarding Publicity: public has 1st Amd right to open trials; strict scrutiny std -must show compelling interest w/no less restrictive alternative to close
Publicity and TV at Trial: not perse unconst'l to have cameras in ct room over objections of parties - issues is whether proceedings will be disrupted.
Right to Jury Trial - Rule: right exists if sentence exceeds 6 mths in prison
Peremptory Challenges: NOT for cause - Neither side can exclude jurors based on race or gender
Jury's involvement in sentencing: IF in sentencing a fact is necessary to impose a mandatory sentence, must be found by jury!
Right to an atty with -Sentencing -Appeal: Sentencing - rt to atty
Appeal - if you had atty at trial- entitled to one at automatic appeal but after this appeal = discretionary and so is giving of counsel
Requirement to Prove ineffective assistance of counsel: lack of competence must have effected outcome of trial
Remedy for Breach of Guilty Plea: by govt- D can rescind, walk away from deal and withdraw guilty plea
When Double Jeopardy attaches for: -Jury Trial -Bench Trial: Jury: jury is sworn in
Bench: 1st witness sworn in
DJ and Manifest Necessity: IF jeopardy attaches, there are situations to retry - if not govt's fault, ex. Hung Jury
DJ and Multiple Jurisdictions: Independent sovereigns can try the SAME case
DJ and same offense - inquiry?: Does each crime require proof of an additional element that the other crime does not require? If yes - not DJ - not same offense
DJ and D's waiver: if D appeals her conviction - she's waived her DJ claim
Harmless Error Test: if illegal evidence is admitted, a resulting conviction should be overturned on appeal UNLESS govt can show beyond a reasonable doubt that the error = harmless - DOES NOT apply to denial of rt to counsel at trial!
Wiretapping/Eavesdropping = Search and valid warrant allowed if:: 1)showing of PC
2)suspected persons involved in convo are named
3)warrant describes w/particularity convos to be heard
4)wiretap limited to short time
5)terminated when info received
6)return made to ct
Harmless Error Test and Involuntary Confession: if involuntary confession admitted, test applies- conviction need not be overturned if other evidence of guilt
Public Safety Exception & Miranda: interrogation allowed w/o Miranda warnings where it was reasonably prompted by concern for public safety
Grand Jury - describe: conducted in secret, D has no right to notice nor have evidence excluded nor have counsel; D must appear if called tho can refuse to answer questions on incriminating grounds
ONLY Defect sufficient to quash Grand Jury: exclusion of minorities

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