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Criminal Procedure (Double Jeopardy: prohibits a person being put twice in…

- - - - he executed a knowing and voluntary waiver -- but D does not have to specifically invoke 6th in order for it to apply; it is self-executing
      - his lawyer was present OR
  - - - Custody? --> formal arrest or situation where a reas person in suspect's position would believe their freedom has been deprived (not free to leave). NOT triggered for cops undercover as fellow prison inmates.
      - Interrogation? --> direct questioning or words or actions a reas officer would anticipate were likely to result in eliciting an incriminating response. Spontaneous or volunteered statements do not implicate Miranda rule (even if made while in custody) b/c not a product of Qs
      - Warnings Given?
      - Did the accused invoke right to counsel? (unequivocally/expressly --> not just asking for probation officer)
      - Did suspect make a knowing and voluntary waiver? If not, statements violate Miranda. Waiver must show that suspect understood his rights (orally or written). Waiver cannot be presumed from silence. Psychosis does not protect a D (Miranda only protects from police coercion, not mental illness).
        
        Totality of Circs Test: 1) competence of D (age, experience, intelligence, ability to understand the warnings), 2) if conduct of police is overreaching (D held in police custody and interrogated for hours before Miranda)
      - Effect of Invoked Rights: If suspect makes an unequivocal request for an atty or states she wishes to remain silent (request can be made at any point during interrogation) --> all interrogation must stop. Whether police can re-initiate questioning after right invoked depends on what right invoked.
        
        Invoked right to remain silent --> police must allow for significant time to elapse and then obtain a new Miranda waiver
        
        Invoked right to counsel --> may not resume questioning until counsel is present, OR D re-initiates contact w/ police and executes a new waiver OR 2 weeks after D is returned to his normal enviro and police get new waiver
    - - Any statements can be used against you
      - Right to counsel before and during questions
      - Right to remain silent
      - If you cannot afford a lawyer, one will be appointed for you
  - - - Use/Testimonial Immunity: prohibits use of witness's testimony or any E derived from that testimony against witness. Can still prosecute witness so long as E has no connection to testimony
      - Transactional Immunity: prohibits ANY future prosecution of witness for transaction that is the subject of testimony
- - - - that counsel was ineffective (below min standard of lawyer conduct) +
      - had the lawyer been effective, it would created a reas probability that outcome would have been different -- effective rep would have created reas doubt
- - - - that procedures used were unnecessary and suggestive +
      - that suggestiveness produced an unreliable ID -- factors:
        
        witness' degree of attention
        
        accuracy of witness's description
        
        opp to view criminal at scene
        
        degree of certainty of witness, and
        
        time interval b/w crime and ID (the longer the interval, the less reliable)
  - - - results are per se inadmissible at trial and
      - witness is prohibited from making a subsequent in-ct ID of D unless prosecution can prove by C&C E that in-ct ID is independent from inadmissible out of ct ID
- - - - Seizure: gov exercising control over a person (arrest) or thing
        
        The seizure of property req's a meaningful interference w/ a possessory interest in the thing.
        
        Seizure of persons: When, due to gov action, a reas person in D's position would not feel free to leave or terminate police encounter
        
        Police need to use physical force or showing of authority followed by submission
        
        Terry stop: Brief investigatory seizure. Diff w/ arrest is duration + purpose. Permissible duration is time necessary to confirm a reas suspicion that crime has occurred, if so --> now have PIC. If suspicion is denied, seizure must stop.
      - Search: Any gov investigatory trespass against a 4th amd interest OR intrusion into a reas expectation of privacy (REP)
        
        Investigatory trespass: intrusion upon target's person, home (including curtilage), papers, or effects for purpose of finding or gathering E of a crime. Need investigatory motive.
        
        REP: req's that: 1) D manifests subjective expectation of privacy by making effort to shield thing or activity from public + 2) Expectation is objectionably reas because it is an expectation society is willing to recognize. Not REP if objects held out to public (i.e. handwriting, voice, bank records, email headings, open fields, discarded property)
    - - The only person who can challenge the const'lity of a S/S is the person who was S/S'd. The accused has no standing to assert an unconst'l S/S defense if the search occurred in a friend's home (no reas expectation of privacy). How to establish:
        
        owner of car or person in possession of car has standing to seek exclusion of E obtained as result of unreas search of car
        
        overnight guest at someone else's house
        
        ownership or possessory interest in place searched or item seized
    - - 3 Reqs for exclusion of E. If all 3 met, D can invoke the exclusionary rule to prohibit gov from introducing E obtained as a direct or derivative result of an unreas search and seizure. N/A to Grand Juries
        
        Fruit of the Poisonous Tree: the main sanction against the state for violating an accused's const'l rights. Any E gathered as a result of the state's unconst'l conduct is inadmissible against the person whose rights were violated an exception applies
        
        includes all E downstream from the violation. In your analysis, once you find a const'l violation, state the exclusionary rule and that the E should be excluded. Only then do you address if an EXCEPTION applies:
        
        Found not to be fruit of the poisonous tree
        
        Inevitable discovery: E that is obtained through poison tree will still be admissible if police establish that they would have inevitably discovered the E through a diff independent source
        
        Attenuation: E so distant from initial illegality that taint of poison is purged and E is admissible. Factors:
        
        passage of time
        
        different officers
        
        valid Miranda waiver
        
        Different location
        
        Independent source for obtaining E
        
        Procedural Exceptions
        
        Grand jury proceedings
        
        Parole revocation hearing
        
        Impeachment purposes
        
        Civil proceedings such as immigration
        
        Doctrinal Exceptions
        
        Clerical errors by ct employees in maintaining records such as arrest warrants
        
        K&A violation
        
        Isolated neg. by police in maintaining records such as arrest warrants
        
        Reas good faith reliance on facially valid warrant, although later found to be lacking PC
        
        D claiming remedy (seeking exclusion) must have standing ^
        
        facts do not support applying an exception to exclusionary rule
        
        unreas S/S must trigger remedy exclusion
        
        Exclusionary rule does not apply to use of tainted E to impeach D's testimony
        
        Good Faith Exception: when police act in good faith on warrant that is later ruled invalid, E not excluded. Can't lie to Mag
    - - Before the search, police must knock and announce their presence and purpose before entering the premises. A K&A Violation does NOT lead to exclusion of resulting E. Exceptions:
        
        K&A req suspended if the police have reas grounds to believe E would be destroyed.
        
        K&A req suspended if police have reas grounds to believe it would be dangerous or futile.
        
        During the search, police may take reas steps to secure premises, including temporarily detaining individuals at the scene and ordering occupants out of a car.
    - - Warrants are req'd for arrests in private, such as a person's home, unless an exception applies. If the person is in someone else's home, then a search warrant AND an arrest warrant are needed.
        
        Misdemeanors require both PC and that the misdemeanor was committed in the presence of an officer.
        
        Warrants are not req'd for arrests in public if supported by probable cause (for felonies).
      - VALID warrant?
        
        Particularity: suff. definite for police to ID persons, places or items to be searched or seized w/ reas certainty. Particularity must be on the face of the warrant or an incorporated affidavit.
        
        Oath or affirmation
        
        Probable Cause: fair probability, reas grounds, or reas trustworthy info suff. for a prudent person to conclude that: 1) a crime has been or is being committed by the person to be seized OR 2) there is E of criminality in place to be searched (hearsay and anonymous tips may support PC. Test is totality of circs).
        
        Detached and neutral magistrate
        
        Searches pursuant to warrant: warrant gives police authority to search only named places or people. Contraband not named can be seized if in plain view. Right to detain occupants during search but not right to search them).
      - Warrant EXCEPTIONS (search is UNREAS UNLESS exception applies)
        
        Consent: if individual waives right to privacy by consenting to search, search is reas even if police have no suspicion. Can be express or implied (opening door).
        
        Must be voluntary (totality of circs). Invalid if obtained by asserting fake warrant, fraudulently, under duress, or pursuant to unlawful police threat. If consent obtained followed unlawful seizure, it's tainted, and consent and any E invalid
        
        Third Party Consent: any person who has joint control or use of shared premises may consent to valid search, and E may be used against all residents. Applies to common areas, not where D has exclusive control. Reliance on consent is reas if person has actual authority or reas officer believes that person had authority. Cannot rely on consent when other party is present and objecting.
        
        Exigent circs: warrantless search permissible when waiting to obtain a warrant will result in imminent destruction of E, escape of accused, or risk to police or others in the area.
        
        Justifies warrantless S/S of E in or on a suspect's body if PC to believe the nature of E renders it easily destroyed or likely to disappear before warrant can be obtained. Needs to be reas and not shock conscious.
        
        Justifies warrantless crime scene search to seek other Vs, remaining killers or violet felon.
        
        Plain View: police may seize an item they see in plain view or can "plain feel" if they have authority to be where they are and the item is connected w/ criminality
        
        Auto search: PC that any area of car to be searched (including containers) harbors E of criminality
        
        applies to all containers w/in vehicle where item could be found for which PC exists
        
        can also impound car and search it later if w/in scope of a reas and routine procedure to protect valuables, police, and public
        
        justified by inherent mobility and reduced expectation of privacy
        
        Search incident to lawful arrest (SITLA): upon a lawful arrest (based on PC) can automatically search the arrestee + area w/in his immediate control (wingspan or lunging distance).
        
        Person: contemporaneous search of person, lunge area, and containers for weapons or E
        
        Car: Can automatically search person. No search of car unless: 1) reas belief that arrested occupant or recent occupant may access car; OR 2) reas belief that car contains E of Crime of arrest (not speeding)
        
        If arrested at home, limited to area w/in lunging distance --> no authority to search entire house. If RS, other people home, and may put police in risk, can conduct cursory protective sweep (Terry Seep) but ONLY where people could fit
        
        Must be contemporaneous
        
        Terry Frisk (search): Cursory, protective search for weapons or some other instrumentality that creates imminent danger to officer or others in close proximity.
        
        Justified only by RS that suspect is armed and dangerous = protective search, not search for E
        
        Limited to suspect's outer clothing to confirm or deny suspect is armed
        
        If frisk/pat down results in officer feeling something he knows immediately is a weapon or other contraband --> officer may seize it w/o a warrant pursuant to a "plain touch" (variant of plain view). If knows it's not a weapon and has to manipulate it to establish PC to seize it --> exceeds scope and is unreas
        
        Cars: brief cursory look in car where police have RS that person stopped will have immediate access to weapon after getting back in car.
        
        Home: cursory sweep of home on RS that others may be present and endanger officer
        
        Special needs doctrine: Can use checkpoints to conduct brief seizures/limited searches w/o individualized suspicion or warrant b/c of public safety danger that cannot be addressed by complying w/ warrant reqs
        
        primary purpose must be need to search or seize to protect public from immediate danger
        
        Must be: 1) based on fixed formula that deprives individual officers of discretion to select subjects, 2) narrowly tailored in scope, to address the specific threat, 3) conducted in location and manner that minimizes citizen anxiety
        
        Border exception: Custom official may, w/ no warrant, RS, OR PC, as an incident of national sovereignty: 1) stop vehicles at permanent checkpoints located at or near border, 2) conduct routine searches of people and property.
        
        Can seize contraband that comes into plain view even if unrelated to public safety concern
        
        Hot pursuit: may enter and search private dwelling while in hot pursuit of the fleeing suspect. May execute warrantless arrest of suspect on premises and seize any contraband observed in plain view pursuant to hot pursuit.
        
        Admin searches: conducted for non-criminal purpose and justify lower standard of cause
        
        Agency compliance inspection, justified by RS
        
        Border searches: customs and immigration officers may conduct routine searches of people and property crossing borders in US w/ no individual suspicion. Vehicles at border crossing may be stopped w/o cause for Qs, but RS req'd to fully search car
        
        Inventory: Cops can take inventory of an arrestee's possessions when they enter jail. If PC rises as to the possessions, cops can search them w/o a warrant.
    - - Any S/S w/o a warrant is presumptively unreas. Gov bears BOP that it falls w/in an established exception
      - Probable Cause (PC): "fair probability." Facts and circs that would make a reas person conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location
        
        Always req'd for full-scale intrusion (search to find E or an arrest)
        
        Can be based on tip from confidential or anonymous informant -- totality of circs test used for reliability of tips. Considers: 1) veracity of informant (normally predictive info), 2) basis of knowl (how does informant know activities of search), 3) police investigation that corroborates facts in tip and validates accuracy of informant's predictions
      - Warrant creates presumption of reas. D bears burden of rebutting this presumption by proving: 1) warrant not based on valid PC, or 2) mag not neutral or detached, or 3) warrant failed to describe with particularity thing to be seized or place to be searched
      - Reasonable Suspicion (RS): a belief based upon articulable info more than a mere hunch used by a reas person or cop that suspect has or is about to engage in illegal or crim activity
        
        RS is a level of certainty that will justify only a brief investigatory seizure (Terry Stop) or cursory protective search (Terry Frisk)
    - - Terry Stops --> RS that crime is in progress or has just been committed justified a brief investigatory seizure (terry stop) to confirm or rule out suspicion. Scope = time req'd, acting in due diligence to confirm or deny suspicion (can't extend a traffic stop w/o RS). RB established by totality of circs:
        
        police observations, eye-witness reports
        
        flight from police in high crime areas
        
        informant tip + police investigation that corroborates tip (don't need insider access)
      - Seizures of property --> warrant (based on PC) presumptively, not always req'd to justify seizure of property. No warrant if in plain view, req's:
        
        needs to be immediately apparent that item is contraband
        
        officer has lawful access to point of seizure
        
        police lawful vantage point to observe item
      - Arrests --> PC always req'd. Warrant not req'd to arrest in public, but is req'd to arrest individual in own home unless exigent circs