Crim Pro Flowcharts

4th Amendment

Effecting Arrest

Seizure/Stop

Arrest w/o Warrant

(1) phys restr by PO, OR (2) show of author & submission

Must have PC

Accousting

Prob Cause: Factors (indv to specific persons/places - Pringle): (1) Informant (a. basis of know, b. reliab of infrm, c. self-verifying?, d. inform corroborated), (2) exp of PO, (3) Ds prior crim record, (4) info from W or Vic, (5) furtive gestures or flight?, (6) nature of area, (7) common enterprise?

Rsb Art. Suspc armed/dang or contraband

PC develops that crim ab to be comm or did

Search & Seizure Rule: defined ask

Search: Person, Place, House

Government actor intrudes on rsb expct of privacy that society wld agree is private

Seizure

Whether state actor meaningfully interferes w/ indiv possessory interest

defined

Public Actor or Governmental Conduct?

Private still Gov’t IF under authority of PO

Reasonable Exp of Privacy & Society Wld Believe So?

Standing

Sound of voice

handwriting

Paint on car

Garbage (not in curtilage)

Held out to public everyday

1) Probable Cause

Live in place or home (no own)

Don’t own but may have rsb expt of privacy (i.e. borr purse)

sometimes

no

Valid Search Warrant?

Own premise searched

yes

Passenger in cars

Records held at bank

Look for “meaningful connection” that’s not fleeting

If don’t claim own car

if

AND

Don’t claim property searched

Emanating Odors (dog search if public & srch 4 contra) Dunn Factors: (1) prox to house, (2) enclosed?, (3) nature/use of area, (4) steps to protect area

“Open Fields” & “Pub. Airspace”:

Fair prob. that evid. will be found in place searched

Overnight guests

New Tech: (1) whth in gen use, (2) revealing inside not knwn othwis (arg gen use & know)

Hearsay permitted in probable cause

Informant tip permitted

but states

Aguiler Test:

(1) Sufficient facts & circum. to allow magis to know how PO got info AND

2) Particularity items & place

3) Reviewed/app by neutral mag

Factors: (1) Informant (a. basis of know, b. reliab of infrm, c. self-verifying?, d. inform corroborated of future behavior)?

In MD – daytime is rule; Fed – exp made for night

4) Signed under Oath

5) PC not stale/ old/out-dated

Serve in day, timely, knock/annc (avoid prop damag, avoid violence, prevent unnec invasion)

(2) Police must vouch for RELIAB and CREDIB of informant (thr prev tips) – use TOT of CIRCUM Executing W all

Wait rsbl amt of time after K&A

If not valid, will PO “Good Faith” reliance save?

Good faith will overcome defects with probable cause or ptc req for physical evidence

Magistrate is biased or

Detain all (frisk = rsb sus of crim for non-subs) Affidavit for W is so lacking in PC – no rsb PO wld rely

Search only areas listed in warrant

Affidavit for W is so lacking in part – no rsb PO wld rely

Search Incident to Lawful Arrest:

Automobile Exception:

If arrest is unlawful then search is unlawful

Just b/c car, AE except not guar. – intent b/c cars move

Arrest & search must be contemp in time & place

Automobile Exception (when car has evidence):

“Wingspan” - person & areas reached for weapon or destroy evidence

If taken out of car & arsted NO… UNLESS can reach car for weapon or dest evid

Can search ALL car (spaces & trunk) – less exp of privacy (Carney)

Package or container that RSB cld contain item looking for if owned by pass or driver PC can dev after stop

Hot Pursuit / Evanescent Evidence

Plain View

Consent

Stop & Frisk

PO must be legit present when he/she does viewing of item seized & Immediately apparent

Consent must be:

Terry Stop

Ev Evid

Hot Purs

BREIF deten for purp of invest suspic conduct

Evan Evid: evid that might disap if PO gets warrant (scrape fingernails)

If PO are not w/in 15 min of fleeing felon then not w/in hot purs

Whether lawfully seeing (i.e. enter house lawfully)

Saying have warrant, negates consent – but no req on PO to explain

Must have PC to support S Geographic Scope Limitation

Seize only items listed in W & in plain view

PO or pros lied or mislead magis.

If non-valid W, 6 Exceptions to Warrant Requirement:

Inventory srch: prtct prop, prtct claims of fraud/theft, PO safety Must follow pre-estb PO procedures.

both

Voluntary and

Intelligent

TP consent – 2 own, either can consent.

2 own, both pres & 1 does not consent then not

If consent, may limit scope (Jimeno)

Standard = reasonable suspicion Terry Frisk Patdown check for weap/contra

Standard = reasonable suspicion for PO safety (looks like weapon or contra)

If ok, anything entered from home will be admiss

Matlock Factors for TP Consent: (1) mutual use, (2) joint access/control, (3) rsbl recognition, (4) assumed risk Police must act reasonably to determine.

Exclusionary Rule

Grand Juries

Limitations

Fruit of Poisonous Tree

Not in Civil

Not for violations of “knock & announce” rule

To Qual: Must Violate C or Fd Stat.

Not in parole hearings

No common enterprise of residence when W is good on location w/ others (Ybarra)

Other guests:

Purpose: exclude evidence obt by PO by exploiting unlawfully obtained evidence

Independent Source

Wiretapping & Eavesdropping Confessions & Miranda

th

14 – Fundamental Fairness – “Shocks the Conscience”

Inevitable Discovery

PC required for all

Custodial interrog. (state actor) (2)

PO “Rslb Sus” knock wld:

Custody

Interrogation

voluntary

Inhib inves. – evid. destr.

futile

This includes back of police car

Right to remain silent

(1)

dangerous

Honest mistake in executing W may be permissive

Howev, unreliable ear is assumed for all people

but

Miranda Waiver

Right to Counsel

May reasonably detain non-ID’ed ind. in house when W names D’s

Intervening Acts of free will on part of D

Miranda

For impeachment purposes

Words may be used against

In custody if at time of interg did not feel free to leave

Rght to att’y

Objective stand

Any conduct where PO knew or shld know might illicit incrim respon from D

In cell, but also maybe in home or hospital

More than just asking questions

May waive w/o signing waiver form

intelligent

6th Amnd

Once assert right to termin interr, reinitiating w/o counsel = violation

Offense specific

5th Amnd

1 circumstance: D invokes, and PO may not reinitiate on ANY topic

Not offense-specific

Checklist:

Rght to atty @ interg

Rght to att’y

Atty appt

Prob intv & car stop not custodial

Spontaneous statement by D is admiss

Shoulder shrugging not enough, must comminc it

McNeil – incrim stat made while in jail on burglary for murder, allowed b/c didn’t ask for att’y on murder

Bias the W in ID’ing Post-charge atty

Due process in W ID Remedy: exclude ID

Pre-trial Procedures

Look at subjective intent of PO

Bail Issues

Immediately appealable

Booking Exception & Public Safety Excp

Excpt: indenpd. source

Preventative detention is allowed

Look for (a) same questions pre,post Miranda, (b) timing, (c) continuity of personnel

Warrantless Public Arrest

Committed in Officer’s Presence

Not in Officer’s Presence

Felony or Misdemeanor

Felony w/ PC (no need to show exig)

Warrantless House Entry to Arrest

Warrantless House Entry When Arrest is Outside Home

Not permitted to make routine felony arrest when nonconsensual – cannot create the emergency

Must be substantially contemporaneous to arrest and confined to immed vicinity

except

Even for very minor crime when in presence of PO

Subjective intent of officer not material

except

Hot Pursuit

Exigent Circumstance

Must be for major crime & must be a continuous pursuit from scene of crime

Prevent: (1) destroy evid (2) D escape (3) danger

Lawful or Unlawful – when make arrest in home, police may search:

If arrest outside & PO believe evidence is inside, may detail D until PO can obtain lawful W to search house

Warrantless Search of Auto Incident to Arrest of Occupant for Lawfully Stopped Vehicle

If lawful, search of arrestee w/o warrant lawful The person of D to protect PO safety

Even though police have PC to make arrest, method they use must be rslb

and

W/in D immed. Control (weap/contra)

When lawful, may conduct “protective sweep” (closets, hiding spots) Atwater: police may arrest for any violation, even minor. Whren: Test is whether COULD HAVE arrested or pulled over, not subjective intent of PO

Special Needs Cases

(a) rsbl grounds to think there’s a violation of school policy, and

(a) rsbl grounds to believe search will turn up evidence

Excessive intrusiveness of search shown by: (a) age, (b) gender, (c) crime, (d) method used for search

Including containers owned by passengers

and

Search may be for occupants & recent occupants

Cursory inspect & not excessive length

To go beyond cursory, must have rsb art facts that warrant that other places may harbor hiding assailant

Schools

Belton rule: lawful custodial arrest of occupant, may search passenger compartments & containers found within (PO safety & evidence)

Evaluate (1) level of intrusiveness of “checkpoint” or mandatory stop, (2) extent of the state’s interest, (3) effectiveness of the method, (4) notice prior to stop or intrusion.

Exigent Circum Factors: (1) amount of time between crime/arrest, (2) severity of crime, (3) protection is sole reason for entrance (4) police have seen commission of crime, (5) # of ppl affected by entry