CRIMINAL PROCEDURE

Sum & Substance

Professor Joshua Dressler

I. INTRODUCTION: STUDY POINTS

Criminal procedure is about police practices and the methods by which the police go about
investigating crime. It deals with the limitations that the Constitution places on the police. In
short, it is a course in constitutional procedure.

There are two competing concerns in criminal procedure:

Crime.

Fear of governmental abuse.

Study Tip Criminal procedure is almost exclusively made up of United States Supreme Court
cases. For this reason, the following strategies may be helpful for the study of criminal procedure:

Learn case names.

Read concurring and dissenting opinions.

Notice the vote breakdown in the Court’s opinion.

Notice who the justices are and how each typically votes.

II. GENERAL CONSTITUTIONAL DOCTRINES

There are three, relevant constitutional law doctrines: Retroactivity, Harmless Error, and
Incorporation.

A. Retroactivity Doctrine.

1. New constitutional rules only apply to cases before a conviction is final.

2. Two exceptions:

a. If announced rule places entire course of conduct outside of the reach

of the criminal law.

b. If the new rule requires the observance of a watershed rule of criminal

procedure.

B. Harmless Error Doctrine. On appeal, a conviction will not be overturned simply on

the basis that a trial error occurred. It must be shown that the error was prejudicial to
one’s rights.

1. Distinguish Between Constitutional and Nonconstitutional Errors.

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 2. Two Constitutional Errors:

a. Constitutional trial error: Apply Chapman Doctrine. The prosecutor

must prove beyond a reasonable doubt that the error was harmless.

b. Structural defect in the trial mechanism: Per se rule/conclusively

presumed prejudicial.

C. Incorporation Doctrine.

1. Bill of Rights places no limit on states. But, Fourteenth Amendment imposes

certain limits on state governments.

2. Fundamental Rights Doctrine: Most rights in criminal procedure are

fundamental rights and therefore apply to states.

III. FOURTH AMENDMENT

A. Overview. The Fourth Amendment guarantees protection in only four areas: Persons,
houses, papers and effects.

1. Applies only to searches and seizures of protected interests.

2. Requires “reasonableness.”

3. Warrant Requirements:

a. Probable cause to obtain warrant.

b. Reliability through oath and affirmation requirement.

c. Particularity of place to be searched and items to be seized.

4. Additional Considerations:

a. Rights must have remedy (here, Exclusionary Rule).

b. Wrongdoer must be a governmental agent.

B. To What Does Fourth Amendment Protection Apply?

1. Persons.

2. Houses, including any place people live even temporarily.

3. Papers.

4. Effects. Virtually anything else, but does not include real property.

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C. What Is a Search?

1. Katz v. US.

a. Fourth Amendment protects people, not places.

b. What a person knowingly exposes to the public, even at home or in the

office, is not subject to the Fourth Amendment protection.

c. The Fourth Amendment is invoked if information is sought from one

who has tried to keep something confidential.

d. Harlan’s critical concurring opinion: A search is an intrusion on one’s

reasonable expectation of privacy.

i. Subjective expectation of privacy.

ii. Expectation must be both legitimate and reasonable.

2. Surveillance of Conversations.

A person does not have a reasonable expectation of privacy when he discloses

information to another person who may be a false friend, and it is similarly not
a search if the false friend records or transmits the information to law
enforcement.

3. Open Fields Doctrine.

House and curtilage protected. No Fourth Amendment protection if he search

occurs in an open field.

a. Curtilage: Land surrounding and associated with the home.

b. Look to four factors:

i. Proximity.

ii. Whether an enclosure surrounds the house.

iii. Nature of use of the property.

iv. Steps taken by resident to ensure privacy.

4. No Expectation of Privacy In:

a. Financial information provided to the bank.

b. Phone numbers you dial.
c. Activities within curtilage that can be unintrusively observed from
public navigable airspace.

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 5. Advanced Technology.

Thermal imaging device used to detect heat in the home is a search, i.e., there is
a reasonable expectation of privacy.

Study Tip Factors used in determining borderline cases:

Nature of place observed.

Steps taken to enhance privacy.

How intrusive was police activity?

Degree to which surveillance requires a physical intrusion.

Nature of activity being observed.

D. What Is a Seizure? Two types: Property and Persons.

1. Seizure of Property.

a. Occurs when there is a “meaningful interference” with an individual’s

possessory interest in the property.

b. Police may only seize four types of property:

i. Contraband.

ii. Fruits of a crime.

iii. Instrumentalities of a crime.

iv. “Mere evidence” of a crime.

2. Seizure of Persons (see below under “Terry v. Ohio”).

E. Probable Cause.

1. Two Rules of Thumb:

a. All arrests must be supported by probable cause.

b. Searches or seizures must ordinarily be supported by probable cause,

but there are many exceptions to this.

2. “Probable cause”: substantial basis (more than a mere suspicion).

3. What Type of Information Should a Police Officer Consider and Present to the
Judge to Ask for a Warrant?

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 a. Anything the officer personally observed is best.

b. Hearsay.

i. Appropriate under some circumstances.

ii. Two-pronged test (from the Aguilar-Spinelli case, now

overruled)

(1) Basis of knowledge of informant.

(2). Reliability of informant.

iii, Aguilar-Spinelli Today (“Totality of Circumstances”).

(1). Aguilar-Spinelli prongs remain critical. However,

today police do not have to present proof of both
prongs. Instead, under Illinois v. Gates, the strength
of one prong can compensate for the weakness or
absence of the other. The “totality of the
circumstances” of the hearsay information is key.

4. Probable Cause is an Objective Concept. The motives of the officer are

irrelevant.

F. Warrant Requirement.

1. Overview.

Searches conducted without a warrant are per se unreasonable under the

Fourth Amendment, subject to specific exceptions, discussed later.

a. If there is a warrant, the defendant cannot challenge the police action

unless there is substantial evidence of three factors:

i. False statement in affidavit.

ii. Made intentionally or with reckless disregard for the truth.

iii. False statements led to the finding of probable cause.

b. Warrant must state person and property to be seized.

c. Warrant must be executed in a reasonable manner.

i. “Knock and announce” rule.

(1) Police must knock, announce intrusion, and request

admission.

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 (2) Three exceptions (only reasonable suspicion
required):

(a) Threat of violence.

(b) Threat of destruction of evidence.

(c) Entry in hot pursuit.

2. Arrests

a. There is no constitutional need for an arrest warrant if the arrest is

made in a public place.

b. An arrest warrant is required for nonconsensual entry into a person’s

home to complete a routine felony arrest. A doorway is public. If the
suspect retreats into house, entry is justified by “hot pursuit”
exception.

c. To arrest in a third-person’s home, police need an arrest warrant and a

search warrant.

G. Search Warrant Exceptions.

1. Exigent Circumstances.

2. SILA: Search Incident to Lawful Arrest.

a. For this warrant exception to apply, person must be taken into

custody—not just a traffic citation.

b. Scope:

i. Police may search the arrestee and the area surrounding

arrestee (the “grabbing area”).

ii. Purpose of search: to seize weapons and criminal

evidence that may otherwise be destroyed.

c. Variation: In a search incident to lawful arrest of an occupant, or

recent occupant, of a car, the police may contemporaneously search
arrestee’s person AND entire passenger compartment of vehicle, and
all containers therein, whether open or closed, if the arrestee is within
grabbing area or, if he is not, the police have reason to believe the
vehicle contains evidence of the offense of arrest.

3. “Motor Vehicle Exception.”

a. For a search of a motor vehicle not incident to arrest, an officer may

conduct a warrantless search of the car if there is probable cause.

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 b. Motor home: Treated as a car if it is readily capable of use as a vehicle
and not in a place regularly used for residential purposes.

4. Car or arrest inventory search.

a. Legitimate reasons to inventory without warrant or probable cause:

i. To protect car owner or arrestee against theft of property.

ii. To protect police against false claims of theft.

iii. The right to look for dangerous instrumentalities that could

endanger police or others.

b. Warrant exception only applies when there is some existing written

inventory procedure.

5. “Plain View,” “Plain Touch” Doctrines.

a. Justifies only warrantless seizures, not searches.

b. Three conditions must be met:

i. Officer observed object from lawful vantage point.

ii. Officer had access to the object from lawful vantage point.

iii. Officer had probable cause to seize.

6. Validly Obtained Consent.

a. In these questions, ask:

i. Was consent voluntary? Based on totality-of-circumstances.

Knowledge of the right to refuse consent is not a prerequisite.

ii. Did officer’s actions exceed scope of consent given? If so,

search invalid.

iii. May a third person consent? Yes, if the “third person” has
joint possessory interest in the property in question and the
other person is not present to object.

iv. What if mistaken about person’s ability to consent? Apparent

authority doctrine: If a person has no right to consent (they do
not have a possessory interest in property), consent is still
valid if officer reasonably believed person had authority to
grant consent.

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7. Terry v. Ohio / “Terry Doctrine” / “Stop and Frisk.”

a. To conduct brief-detention seizure, police must have

“reasonable suspicion” that crime is afoot.

b. To conduct a brief pat-down search for weapons, the officer

must have “reasonable suspicion” that the subject is armed and
dangerous.

c. When is a person “seized”?

i. When a reasonable person, as a result of force or show of

authority would consider herself not to be free to go.

ii. In pursuit-type engagements, no seizure occurs unless the

suspect is touched or the person submits to authority.

d. “Reasonable suspicion” is calculated in the same way as “probable

cause,” but involves a conjsiderably less stringent standard than
“probable cause.” It requires some objective evidence and cannot
constitute a mere hunch.

e. Extension of Terry:

i. When police lawfully stop a car and have reasonable suspicion

that there may be a weapon in the vehicle, police may conduct
a limited weapons search of the entire passenger compartment
of the automobile.

ii. “Protective Sweeps.” When making an arrest in a home, if

police have reasonable suspicion there is someone else in
house that may represent a threat to their safety, they may
sweep home looking for persons.

iii. If police have reasonable suspicion that some container

contains criminal evidence, they may temporarily detain the
container in order to conduct a more thorough investigation.

8. Checkpoints and Other Special Governmental Needs.

a. Special needs beyond the normal need for law enforcement may make
getting a warrant and/or probable cause impracticable.

b. No warrant or level of suspicion is required for sobriety highway

checkpoints.

c. Warrantless public school searches are okay if:

i. There is a reasonable suspicion that the search will reveal

evidence that student violated a school rule or a criminal law.

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 ii. The search is not too intrusive in light of the age and sex of
the child and offense investigated.

d. Drug and alcohol testing without warrant or suspicion is sometimes

allowed. Factors to consider:

i. Testing is done in an occupation pervasively regulated by the

government.

ii. There is a strong connection between the job requirement (or

the school activity) and employer’s or school’s concern.

iii. Testing is done randomly.

iv. Empirical evidence of the need for such testing.

v. Measures taken to ensure dignity of person tested.

IV. STANDING

A. When Can a Person Make a Fourth Amendment Challenge? Does an individual

seeking to have evidence excluded have standing to challenge the police conduct?

B. Only If He Is a “Victim.”

1. One is a victim if he has a legitimate expectation of privacy in the invaded

place.

2. Ownership of the property seized does not entitle one to standing to contest the
search resulting in the seizure, unless the person has a legitimate expectation
of privacy in the area searched.

3. A person has standing to contest a search if he is an overnight guest in another

person’s home.

4. A person may have standing to contest a search, even if not an overnight

guest, if he has a “substantial connection” to the home.

V. EXCLUSIONARY RULE

A. Two Purposes:

1. Judicial integrity. No longer applicable.

2. Deter police Fourth Amendment violations.

B. Rule. In purest form, it provides that evidence directly obtained as a result of a Fourth
Amendment violation, as well secondary evidence that are fruits of the poisonous tree
are inadmissible at the defendant’s trial. But, this rule is subject to limitations.

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 1. The rule only applies to evidence introduced in the prosecutor’s case-in-chief,
i.e., the exclusionary rule does not apply for purposes of impeachment.

2. Also, if a warrant is obtained, the exclusionary rule does not apply, although
the warrant was invalid, if the police acted on the basis of an objective good
faith belief that the warrant was valid.

3. The rule does not apply to evidence obtained by means of a valid warrant,
although the warrant was executed unconstitutionally, in violation of the
knock-and-announce rule. This is because the purpose of the latter rule is not
to help a citizen shield information from the government.

4. Under Herring, mistakes by the police that are the result of mere isolated
negligence, rather than systemic error, reckless disregard of constitutional
requirements, or intentional misconduct, will not result in suppression of
evidence, even in non-warrant cases.

C. “Fruit of the Poisonous Tree.”

1. Exclusionary rule, when applicable, extends to direct and indirect products of

the violation.

2. Exceptions:

a. Independent source doctrine: if the secondary evidence was actually

obtained as a result of an untainted source.

b. Inevitable discovery rule: if the prosecutor proves by preponderance

of evidence that the police would have discovered the evidence even if
they had not violated the Fourth Amendment.

c. Attenuated connection doctrine/Wong Sun Rule. If the secondary

evidence is no longer tainted by the original violation. There are
factors to consider in this regard.

i. Temporal proximity/length of causal chain.

ii. Subsequent acts of free will.

iii. Flagrancy of violation.

iv. Totality of the circumstances.

VI. ENTRAPMENT

Not a constitutional law doctrine, but a criminal law defense; nevertheless covered in
many criminal procedure classes and texts.

A. Two Tests: Subjective and Objective.

1. Subjective (Federal and Some States).

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 When a governmental agent induces an innocent (not predisposed) person to violate the
law.

2. Objective (Some States).

Would police inducements have caused a hypothetically law-abiding citizen to

commit the crime?

VII. POLICE INTERROGATION

A. Fourteenth Amendment Due Process Clause. What form of process is a person due
when interrogated by police? Due process is violated if a statement is obtained by the
police involuntarily. Remedy: Statement is inadmissible at trial.

1. Determination of “involuntariness” is based on the totality-of-circumstances,

taking into consideration the conditions of the interrogation (e.g., whether
force was used, length of time, whether the suspect received or was denied
food and water, etc.) and characteristics of the suspect (e.g., age, mental
condition, etc.).

B. Fifth Amendment Privilege Against Self-Incrimination. No person shall be

compelled to be a witness against himself.

1. This right now deemed a fundamental right, applicable to the states.

2. Although the first case in this area applied a strict test of compulsion, over
time the Supreme Court has treated this right similarly to the Due Process
Clause.

3. The Fifth Amendment is not violated unless the coercedconfession is used in

court, whereas the Due Process Clause is violated as soon as the confession
is obtained involuntarily, even if the statement is not used at trial.

4. The Fifth Amendment Exclusionary Rule is absolute—the coerced statement

cannot even be used for impeachment purposes.

C. Miranda v. Arizona. Any statement obtained as a result of custodial interrogation may

not be used against the speaker unless the prosecutor proves that police used certain
procedural safeguards (the so-called “Miranda warnings”) to preserve the defendant’s
rights pursuant to the Fifth Amendment privilege against self-incrimination.

1. States are free to provide alternative guidelines, if they provide equivalent

information.

2. Otherwise, states must follow Miranda:

a. Police must state clearly and unequivocally that suspect has the right
to remain silent.

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 b. State the consequences of giving up that right (anything said can and
will be used against defendant).

c. Inform the suspect of the right to consult with a lawyer and to have
lawyer present during interrogation.

d. Inform the suspect that a lawyer will be appointed at no cost to

indigent suspect.

3. Suspect may waive his rights.

4. Dickerson v. US: Despite the Supreme Court’s description of the Miranda

ruling as a “prophylactic rule,” the Court Stated in this case that Miranda is a
constitutional rule. Therefore, legislation seeking to overrule it was
unconstitutional. Nonetheless, a violation of Miranda is not treated by the
Court as a per se violation of the Fifth Amendment.

5. When dealing with Miranda, ask:

a. Was the defendant in custody?

i. “In custody” means under arrest or tantamount to

being under arrest.

ii. Ask: Would a reasonable person in the suspect’s

situation believe he is tantamount to being under arrest? The
hidden intention of an officer to take the person into custody is
not the issue.

b. Was there interrogation?

i. Express questioning constitutes interrogation.

ii. Also, the functional equivalent of interrogation qualified: any

words or conduct by police that they should know are likely to
result in an incriminating response constitute interrogation.

6. Waiver.

a. The prosecutor must prove by a preponderance of the evidence that:

i. The waiver was voluntary.

ii. Waiver was knowingly and intelligently made.

b. An express waiver is not required; the waiver may be implicit.

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7. Effect of asserting rights.

a. If a person asserts the right to silence, police must stop asking

questions and “scrupulously honor” the right. No bright-line rule.
When analyzing these cases, ask:

i. For how long did policed honor silence?

ii. Was suspect re-Mirandized?

iii. Did officials come back and talk about the same crime?

iv. Did different officers know about the earlier assertion of right
to be silent?

b. Invocation of right to consult with attorney. Under Edwards v.

Arizona, if suspect invokes Miranda right to consult with attorney, then
the suspect is not subject to further interrogation until suspect has an
attorney present, unless suspect himself initiates further discussions
about the crime.

i. This rule only applies if the suspect unambiguously asserts the

right to counsel.

ii. If the suspect is released from custody, then the police may
seek to re-interrogate the individual after 14 days.

8. Exceptions to Miranda (when statement is admissible although custodial

suspect was interrogated without warnings):

a. Public safety exception (if there is an emergency, the police may ask
questions, at least briefly, without warning the suspect).

b. Covert custodial interrogation exception (if the suspect does not know
that the person interrogating her is a police officer).

c. Routine booking exception (questions asked during booking, unless

the intention was to obtain an incriminating response).

9. What Is Scope of Miranda Exclusionary Rule?

a. Miranda-less statement can be used for impeachment purposes.

b. A fruit of a Miranda violation may be introduced at trial, with one

exception

i. One “fruit” situation does invoke fruit-of-poisonous doctrine:

An official purposely violates Miranda, gets confession, then
gives Miranda¸ gets waiver, continues interrogation until he
gets the same confession, and then seeks to introduce second
confession

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 D. Sixth Amendment right to counsel. In all criminal prosecutions, the accused has the
right to counsel in his defense.

1. Points to remember.

a. “Prosecution” means it is not triggered until formal judicial

proceedings begin.

b. Unlike Miranda, there is no custody requirement. The defendant can

be out on bail or otherwise free.

c. Applies only when the police deliberately elicit an incriminating

statement.

d. Unlike Miranda, right is crime-specific. If indicted for crime X but not

crime Y, the person can be questioned about Y without counsel.

3. Waiver.

a. Covert interrogation: No way one can waive right to counsel.

b. Overt interrogation: One may waive right to counsel.

i. If defendant asks for counsel at arraignment, the police may

still seek to interrogate the accused, as long as they obtained an
otherwise valid waiver. Valid waiver after Miranda warnings
is sufficient to constitute waiver of both the Miranda right to
counsel and the Sixth Amendment right to counsel.

ii. If the defendant requests counsel at the time of the police

interrogation, then Edwards v. Arizona applies (see the
Miranda discussion above).

VIII. PRETRIAL IDENTIFICATION PROCEDURES

A. Cases Involving Pretrial Identification.

1. Distinguish Between Two Constitutional Rights:

a. Sixth Amendment Right to Counsel.

b. Due Process Clause.

2. Types of Identification.

a. Corporeal (line-ups, and one-on-one identifications).

b. Non-corporeal (witnesses shown photographic displays).

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 B. Sixth Amendment Right to Counsel.

1. One has a Sixth Amendment right to counsel at any corporeal identification

procedure after indictment or arraignment.

2. No right to counsel for noncorporeal identification procedures at any stage,

and no right to counsel for corporeal ids before indictment or arraignment.

3. Defendant can waive right.

4. If there is a Sixth Amendment violation, evidence of the pre-trial identification
is not admissible at trial, and an in-court identification is also barred unless the
prosecution can prove by clear and convincing evidence that the in-court
identification is not tainted by the out-of-court identification.

C. Due Process Clause.

1. Right applies at all stages (before or after indictment), to all identification

procedures (corporeal or noncorporeal).

2. Due Process Clause is violated if the procedure was unnecessarily suggestive

and it can be shown that there identification is unreliable.

3. Remedy for Due Process violation is the same as with right-to-counsel

violations.

IX. RIGHT TO COUNSEL AT TRIAL

A. Felony Cases. A defendant has a constitutional right to counsel in all felony cases.

B. Misdemeanor Cases. A defendant has a right to counsel in any misdemeanor case

where a jail sentence will in fact be imposed if a conviction occurs.

C. Right of self-representation. A defendant has an independent right to represent

himself at trial, as long as the defendant is competent to make the decision. This is not
just the right to waive counsel, but a separate constitutional right of self-
representation.

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