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Crim Pro Flowcharts
George Mason University
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4 th Amendment
Aguiler Test:
- Probable Cause
Effecting Arrest Accousting Seizure/Stop
(1) phys restr by PO, OR (2) show of author & submission
Arrest w/o
Warrant
Rsb Art. Suspc armed/dang or contraband
Must have PC
Search & Seizure Rule:
Public Actor or
Governmental
Conduct?
Private still Gov’t IF under authority of PO
Standing
Own premise searched
Live in place or home (no own)
Overnight guests
Don’t own but may have rsb expt of privacy (i. borr purse)
Passenger in cars
If don’t claim own car
Don’t claim property searched
Held out to public everyday
Sound of voice handwriting Records held at bank
“Open Fields” & “Pub. Airspace”:
Emanating Odors (dog search if public & srch 4 contra)
Paint on car
Fair prob. that evid. will be found in place searched
Hearsay permitted in probable cause
Informant tip permitted
(1) Sufficient facts & circum. to allow magis to know how PO got info
(2) Police must vouch for RELIAB and CREDIB of informant (thr prev tips) – use TOT of CIRCUM
- Particularity items & place
Good faith will overcome defects with probable cause or ptc req for physical evidence
Affidavit for W is so lacking in PC – no rsb PO wld rely
PO or pros lied or mislead magis.
Magistrate is biased
Affidavit for W is so lacking in part – no rsb PO wld rely
Reasonable Exp of
Privacy & Society
Wld Believe So?
yes
sometimes if AND
no
Garbage (not in curtilage)
Valid Search
Warrant?
but states
AND
If not valid, will PO
“Good Faith”
reliance save?
If non-valid W, 6
Exceptions to
Warrant
Requirement:
Search Incident to Lawful Arrest:
Automobile Exception: Plain View Consent Stop & Frisk
Hot Pursuit / Evanescent Evidence
If arrest is unlawful then search is unlawful
Arrest & search must be contemp in time & place
If taken out of car & arsted NO... UNLESS can reach car for weapon or dest evid
Geographic Scope Limitation
“Wingspan” - person & areas reached for weapon or destroy evidence
Automobile Exception (when car has evidence):
Must have PC to support S
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
Dunn Factors: (1) prox to house, (2) enclosed?, (3) nature/use of area, (4) steps to protect area
New Tech: (1) whth in gen use, (2) revealing inside not knwn othwis (arg gen use & know)
- Reviewed/app by neutral mag
In MD – daytime is rule; Fed – exp made for night
Just b/c car, AE except not guar. – intent b/c cars move
PC can dev after stop
PO must be legit present when he/she does viewing of item seized & Immediately apparent
Whether lawfully seeing (i. enter house lawfully)
Consent must be:
Voluntary
Intelligent
both
and
Saying have warrant, negates consent – but no req on PO to explain
TP consent - 2 own, either can consent.
2 own, both pres & 1 does not consent then not
Terry Stop
BREIF deten for purp of invest suspic conduct
Standard = reasonable suspicion
Terry Frisk
Patdown check for weap/contra
Standard = reasonable suspicion for PO safety (looks like weapon or contra)
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
Ev Evid Hot Purs
If ok, anything entered from home will be admiss
PC develops that crim ab to be comm or did
or
Search: Person, Place, House
Government actor intrudes on rsb expct of privacy that society wld agree is private
Seizure
defined
defined Whether state actor meaningfully interferes w/ indiv possessory interest
ask
Factors: (1) Informant (a. basis of know, b. reliab of infrm, c. self-verifying?, d. inform corroborated of future behavior)?
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?
Signed under Oath
PC not stale/ old/out-dated
Serve in day, timely, knock/annc (avoid prop damag, avoid violence, prevent unnec invasion)
Wait rsbl amt of time after K&A
Detain all (frisk = rsb sus of crim for non-subs)
Search only areas listed in warrant
Seize only items listed in W & in plain view
Executing W
all
Inventory srch: prtct prop, prtct claims of fraud/theft, PO safety
Must follow pre-estb PO procedures.
If consent, may limit scope (Jimeno)
Matlock Factors for TP Consent: (1) mutual use, (2) joint access/control, (3) rsbl recognition, (4) assumed risk Police must act reasonably to determine.
Look for “meaningful connection” that’s not fleeting
Fruit of Poisonous Tree
Exclusionary Rule Limitations
PO “Rslb Sus” knock wld:
Grand Juries
Not in Civil
To Qual: Must Violate C or Fd Stat.
Not in parole hearings
For impeachment purposes
Not for violations of “knock & announce” rule
dangerous Inhib inves. – evid. destr. Inevitable Discovery
Intervening Acts of free will on part of D
Independent Source
No common enterprise of residence when W Other guests: is good on location w/ others (Ybarra)
May reasonably detain non-ID’ed ind. in house when W names D’s
Purpose: exclude evidence obt by PO by exploiting unlawfully obtained evidence
futile
Wiretapping &
Eavesdropping
PC required for all
Howev, unreliable ear is assumed for all people
This includes back of police car
Confessions &
Miranda
Miranda Right to remain silent Words may be used against Rght to att’y Rght to att’y
Custodial interrog. (state actor)
Custody In custody if at time of interg did not feel free to leave
In cell, but also maybe in home or hospital
Objective (1) stand
Prob intv & car stop not custodial
Interrogation Any conduct where PO knew or shld know might illicit incrim respon from D
(2) More than just asking questions
Spontaneous statement by D is admiss
Miranda Waiver
voluntary intelligent May waive w/o signing waiver form
Shoulder shrugging not enough, must comminc it
Right to Counsel
Once assert right to termin interr, reinitiating w/o counsel = violation
5 th Amnd 1 circumstance: D invokes, and PO may not reinitiate on ANY topic
Not offense-specific
6 th Amnd Offense specific McNeil – incrim stat made while in jail on burglary for murder, allowed b/c didn’t ask for att’y on murder
but
Checklist: Rght to atty @ interg Post-charge atty Due process in W ID
Bias the W in ID’ing
Remedy: exclude ID
Excpt: indenpd. source
Pre-trial Procedures Bail Issues Immediately appealable Preventative detention is allowed
Honest mistake in executing W may be permissive
14 th – Fundamental Fairness – “Shocks the Conscience”
Atty appt
Booking Exception & Public Safety Excp
Look for (a) same questions pre,post Miranda, (b) timing, (c) continuity of personnel Look at subjective intent of PO
Crim Pro Flowcharts
Course: Criminal Procedure 1 (LAW 001)
University: George Mason University
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