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

- - - - he executed a knowing and intelligent/voluntary waiver -- but D does not have to specifically invoke 6th in order for it to apply; it is self-executing. D must have a rational and factual understanding of the proceeding and be competent.
      - his lawyer was present OR
  - - - Custody? --> formal arrest or situation where 1) a reas person in suspect's position would believe their freedom has been deprived (not free to leave) (totality of circs) and 2) the environment presents the same inherently coercive pressures as stationhouse questioning. NOT triggered for cops undercover as fellow prison inmates. (Not custody if pulled over or if invite cops into home or if stopped and questioned.)
      - 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. Booking Qs are not interrogation
      - 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, education, 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) (setting, duration and manner of interrogation)
        
        silence is not presumed waiver. However, prolonged silence after being informed of rights implies they understood rights; and if suspect then answers questions, that's proof of voluntary relinquishment of right to remain silent
        
        subsequent confession after waiver: valid waiver is strong E that subsequent confession is voluntary and complies with DP, unless police use threats of violence (fail voluntariness). However, if police deliberately violate Miranda to get confession, then give mid-stream warning, waiver is invalid and both statements are inadmissible
      - Effect of Invoked Rights: If suspect makes an unambiguous, unequivocal request for an atty or states she wishes to remain silent (request can be made at any point during interrogation) --> all interrogation (for that specific crime) 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 (for ANY crime) until counsel is present, OR D re-initiates contact w/ police and executes a new waiver OR 2 weeks (14 days) after D is returned to his normal enviro (released from custody, or from interrogation room if they are an inmate) and police get new waiver
      - By someone who is known to be a police officer.
    - - Any statements can be used against you in court
      - Right to counsel before and during questions
      - Right to remain silent
      - If you cannot afford a lawyer, one will be appointed for you at no charge
    - - Miranda violation doesn't result in exclusion of E derived from the inadmissible statement bc no fruit of poisonous tree implication
      - public safety exception: when purpose of police Q'ing is to protect police or public from imminent danger of serious harm, no need to give Miranda warning
  - - - 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
- - - - For cause
      - Peremptory (can't be based on race or sex)
  - - - that counsel was ineffective/deficient (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
    - - If lawyer begins to joint rep but a conflict arises, lawyer can ask the duge to appoint separate counsel. If judge refuses, D will be entitled to automatic reversal. If lawyer fails to bring it up, D will need to show that the atty actively represented conflicting interests upon appeal (if D wants a reversal).
- - - - that procedures used were unnecessary and suggestive, arranged by the gov, +
      - 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: police take control of property
        
        not seizure: police put something on property that owner is unaware of, like beeper or GPS device (may qualify as a search)
        
        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. Mere questions by a cop are not a seizure.
        
        Required: police need to use physical force or showing of authority/force followed by submission to that showing
        
        Terry stop: Brief investigatory seizure/detention. Diff w/ arrest is duration + purpose. Permissible duration is time necessary to confirm a reas suspicion of criminal activity based on articulable facts (not a hunch), if so --> now have PIC. If suspicion is dispelled, seizure must stop.
      - Search: Any gov physical 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, even if the thing is exposed to the public. Need investigatory motive.
        
        exception: trespass on an "open field" (private property beyond the curtilage of the home) is not investigatory trespass, bc open field is not part of the home
        
        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, aerial photos of property, convos with snitch, discarded property)
        
        REP: cell site location information
        
        police use of devices or animals that enhance humans senses: doesn't transform non-search into search.
        
        drug dog sniffing = no search, unless police are already engaged in search (using drug dog to sniff around curtilage = search)
        
        using equipment to enhance natural human senses or from a place police is allowed to be (public) = not search, UNLESS: 1) police physically enter upon curtilage of home to use device (binoculars OK), OR 2) police use device that enables them to see through walls, e.g., thermal imager
        
        No REP: records held by a third party (bank)
    - - 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
        
        D is unreasonably seized by police
    - - 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 unless 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
        
        intervening circs (like act of D's free will)
        
        purpose and flagrancy of police misconduct
        
        Independent source for obtaining E
        
        Procedural Exceptions
        
        Grand jury proceedings unless in violation of the federal wiretapping statute
        
        Parole revocation hearing
        
        Impeachment purposes: Pros can't use excluded E in their case in chief, but if D testifies, E can be used to impeach D
        
        Civil proceedings such as immigration
        
        Live-witness testimony
        
        In-court identifications
        
        Out of court Identifications (unless police conduct was unduly suggestive)
        
        Violations of state law or agency rules
        
        Doctrinal Exceptions
        
        Clerical errors by ct employees in maintaining records such as arrest warrants
        
        K&A violation (extension of inevitable discovery)
        
        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 or law that is later ruled invalid, E not excluded. Won't apply when: 1) police lie to Mag; 2) warrant is so facially defective, no reas officer would rely on it; 3) reas officer would know mag is not neutral and detached; OR 4) supporting aff is completely lacking in PC
        
        Harmless error test: a conviction that includes E that should have been excluded but was not will be upheld if the conviction would have resulted despite the improper E. Upon appeal, the gov as the burden of proof, beyond a reas doubt, that the admission of the illegally obtained E was harmless.
    - - Searches pursuant to warrant need to be executed w/o unreas delay and only by police (can't invite press). 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.
    - - was a warrant required? if so, was it valid?
        
        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.
        
        Warrants are not req'd for arrests in public if supported by probable cause (for felonies).
        
        Misdemeanors require both PC and that the misdemeanor was committed in the presence of an officer.
        
        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
        
        based on 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). Whether PC exists is determined by the neutral magistrate reviewing the affidavit.
        
        issued by a detached and neutral magistrate reviewing the affidavidit (can't be paid to issue warrants)
        
        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: warrantless search/seizure is unreasonable unless exception applies
        
        search
        
        Exigent circs/Evanscent evidence/Emergency aid: warrantless search (and home entrance) 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. Includes blood draws for BAC, if police reasonably believe BAC E will be lost if they wait to obtain a warrant
        
        exception: law or policy that allows police to automatically conduct warrantless blood draw to preserve BAC E is overbroad, and violates 4th Amd; exigency is determined on case-by-case basis
        
        Justifies warrantless crime scene search to seek other Vs, remaining killers or violet felon.
        
        police conduct (e.g., knocking on door) triggering exigency won't invalidate E, unless police conduct violates 4th Amd
        
        Community caretaker exception: police may make warrantless searches if hte ycome across criminal activity while they are performing community caretaker duties (duties not related to investigating a crime). Does not allow them to make a warrantless entrance into a person's home.
        
        automobile exception: General rule: police may conduct warrantless PC search of a car or other vehicle w/out a warrant (think: car = warrant substitute, so as long as have PC to search car, they may do so)
        
        Auto search (outdated): PC that any area of car to be searched (including containers) harbors E of criminality
        
        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
        
        applies to all containers w/in vehicle where item could be found for which PC exists, and belongings of a passenger's
        
        automobile = any vehicle able to move at "turn of a key" and located in an area on or proximate to the roads (includes: RVs. excludes: immobile vehicles that can't run)
        
        any automobile stop can lead to PC that there is contraband in the vehicle, and PC after initial stop can justify warrantless search
        
        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
        
        Automobiles (car, truck, motorhome): Can automatically search person. No search of car unless: 1) reas belief that arrested occupant or recent occupant (Barbri: arrestee) may access car (then, can search interior and containers within interior); 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 to arrest (can't just be a citation)
        
        applies to ANY contraband discovered
        
        as long as PC supports an arrest, SITLA will be valid regardless of ulterior motives of officer (SITLA is automatically granted)
        
        SITLA/E obtained from SITLA supported by PC will be valid/admissible, even if police were ultimately mistaken (wrong suspect, e.g.)
        
        Terry Frisk (search): Cursory, protective search (pat down) 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
        
        Scope: Limited to suspect's outer clothing to confirm or deny suspect is armed
        
        If frisk/pat down results in officer feeling something he knows/reas believes 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 (e.g., squeeze) 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 serious immediate danger; can't be for the purpose of generalized crime control or discovery of evidence
        
        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.
        
        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
        
        RS required for: "non-routine" border searches, such as cavity searches, or a search that results in permanent destruction of property; AND roving border stop on US roads
        
        Can seize contraband that comes into plain view even if unrelated to public safety concern
        
        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).
        
        Third Party Consent: any person who has joint control or use of shared premises may consent to valid search (or apparent authority, like driving a friend's borrowed car), and E may be used against all residents. Applies to common areas, not where D has exclusive control (or a locked room or suitcase). 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.
        
        Must be voluntary (totality of circs). Invalid if obtained by coercion - asserting fake warrant, fraudulently, under duress, or pursuant to unlawful police threat (NOTE: police can lie to obtain consent, such as through undercover cop, and do not need to inform the suspect of their rights). If consent obtained followed unlawful seizure, it's tainted, and consent and any E invalid
        
        indls have the right to refuse to grant consent, withdraw consent, or limit the scope of consent, but must clearly state limitations
        
        Hot pursuit: may enter and search ANY 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. The search can only extend to wherever is reas necessary to prevent the suspect from resisting or escaping. Only applies to felonies, not misdemeanors, unless there's an LE emergency (totality of circs like what's necessary to preevent imminant harm, destruction of E, or suspect's escape).
        
        Admin searches: conducted for non-criminal purpose and justify lower standard of cause. Gov inspectors can conduct things like safety inspections under a wrrant issued by showing a need for a general and neutral enforcement plan.
        
        Agency compliance inspection, justified by RS. Gov EEs can have desks and filing cabinets searched w/in reason for noninvestigatory work-related need or RS of work-related misconduct.
        
        Normally need to obtain admin warrant/auth to search private homes or businesses
        
        Airport screenings: permitted, to protect airline passengers. No C'l right to travel via commercial air, so travelers implicitly consent to screenings
        
        Parolees can be searced - diminished expectation of privacy.
        
        Inventory: Cops can take inventory of an arrestee's/ arrestee's car's possessions when they enter jail, if in compliance with department's inventory regs. If PC rises as to the possessions, cops can search them w/o a warrant.
        
        School officials may search students and their lockers and backpacks without a warrant or PC if 1) it offers a moderate change of finding E of wrongdoing, 2) the measures used to perform the search are reas related to the objective of the search and 3) the search is not excessively intrusive when considering the age and sex of the student and nature of the infraction. Studnets in extracurricular activities can be required to submit to random urinalysis drug testing monitored by an adult of the same sex.
        
        Seizures:
        
        Terry Stops: brief investigatory seizure/detention. Requires RS only
        
        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)
        
        RS that crime is in progress or has just been committed justifies 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). RS established by totality of circs:
        
        flight from police in high crime areas
        
        informant tip + police investigation that corroborates tip (don't need insider access, but must be more than anon tip that confirms existing facts)
        
        police observations, eye-witness reports
        
        RS can grow into PC during stop, leading to suspect arrest
        
        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
        
        Misdemeanors: Unconstitutional to arrest for a misdemeanor w/o an arrest warrant unless the midsdemeanor was committed in the officer's presence.
        
        Felonies: Reasonable to arrest a person for a felony w/o a warrant if the officer has PC to believe that a felony was committed and that the person in front of them committed it. 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.
        
        routine police encounter: if police encounter in no way restrains freedom of indl, won't trigger 4th Amd and requires no cause
        
        plain view: police can seize property if it's in plain view (property police observes in public or while acting within scope of otherwise lawful search, and item is connected with criminality; not reasonable to require officer to stop what they're doing, get a warrant, then resume).
        
        reqs:
        
        what police observe w/o manipulation immediately establishes PC to justify search; AND
        
        officer has lawful access to the point of seizure (if officer has to get to the item to seize it, they must have lawful authority to do so)
        
        police observe the property while in a lawful vantage point (in public, or they're lawfully in the place from where they observe the item, such as on neighbor's property with neighbor's consent)
        
        disco of item need not be inadvertent; even if police suspect they might find item while executing search warrant that didn't list item, if it's in plain view, seizure is reasonable
    - - 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 police officer 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 (for search). Barbri: knowl of reasonably trustworthy facts and circs that would lead a reas person to believe that the suspect has committed a crime.
        
        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 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 or 4) affidavit supporting the warrant was so lacking in PC that no rookie officer would have trusted it
        
        police must act within scope of warrant. search warrant: search specified person and place for the specified contraband (can't search people on premises who aren't named in warrant). arrest warrant: arrest suspect, and implied auth to search suspect's (NOT third party's) home to execute arrest, if: 1) police have reason to believe suspect is home, AND 2) suspect refuses to respond to police requests to open the door.