1. BLAW 108 CRIMINAL PROCEDURE

2. Arrest Step 1: Is there Probable Cause to Arrest the Suspect? Step 2: Do you need a Warrant? Step 3: Is Warrant Validly Executed? – Reasonable basis to believe suspect is at home at time of execution – Knock & Announce Step 4: Is Deadly Force Used? – Unreasonable, unless police have reasonable belief that felon: is armed and dangerous presents a significant risk to society

3. Step 1: is there probable cause? Type of DetentionLevel of SuspicionPolice Right Request for IntrusionAnytime, except on “whim or caprice” Suspect’s right not to respond or to run away does not give rise to PC or reasonable suspicion. Common Law Right to Inquire Founded suspicion that criminal activity is afoot Ask questions briefly—if individual gives explanations, police must release her. Stop (and Frisk)Reasonable suspicion that individual has committed or is about to commit a crime. If reasonable belief that individual is harmed, frisk may be conducted Arrest Probable cause.Conduct warrantless search incident to arrest.

4. Factors in determining “suspicion” 1. Furtive/shady gestures 2. Flight 3. Failure to identify oneself to police 4. Reputation: Of Area  flight in a high-crime area gives reasonable suspicion for stopping BUT mere standing in high crime area is insufficient for suspicion Of Person  Reputation of person can play role in establishing PC for arrest 5. Sensory Perceptions Smell Sight Use of aids permitted  can use tracking beeper on public streets BUT cannot use sense-enhancing device not in general public use to explore details of the home that previously would have been unknowable without physical intrusion 6. Officer Expertise (“totality of the circumstances” test) 7. Valid APB from another jurisdiction None alone is sufficient to establish probable cause

5. Step 2: do you need a warrant? Where is the Arrest going to take place? I N P UBLIC – If Felony, no warrant needed. – If Misdemeanor… » Committed in presence of officer  no warrant » Not in presence of officer  warrant. I N S USPECT ’ S H OME – Arrest warrant necessary, unless: » Exigent circumstances » Valid consent – Note: threshold of home is considered “in public” for purposes of arrest I N A NOTHER ’ S H OME – Search warrant needed (and maybe arrest warrant), unless: » Exigent circumstances » Valid consent

6. Step 3: is warrant validly executed? There must be a a reasonable basis to believe suspect is at home at time of execution o Knock & Announce It is a violation of the 4th Amendment for police to bring a member of the media or a third party into a home during the execution of a warrant where the presence of the third party does not aid in the execution of the warrant

7. Step 4: is deadly force used? Deadly force is unreasonable to execute an arrest warrant unless police have reasonable belief that felon: is armed and dangerous presents a significant risk to society

8. You’ve been arrested. What next? DO NOT SPEAK TO THE POLICE OUTSIDE THE PRESENCE OF A LAWYER!!

9. Miranda warning The Miranda warning consists of an explanation of rights that must be given before any custodial interrogation. This derives from the Fifth Amendment to the U.S. Constitution and the privilege against self-incrimination. The person detained and interrogated must be made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent. Without a Miranda warning or a valid waiver, statements might be inadmissible at trial under the exclusionary rule (e.g., they cannot be used as substantive evidence of guilt in criminal proceedings)

10. Miranda gone bad

13. Miranda case

14. Confessions (we’ll focus on 1-3) Step 1: Was arrestee’s statement voluntary? Step 2: Was arrestee questioned outside the presence of counsel? Step 3: Was arrestee in custody when statement was made? Step 4: Was statement made in response to known police interrogation? Step 5: Were Miranda warnings given? Step 6: Did arrestee intelligently and knowingly waive both the right to remain silent and the right to an attorney?

15. Step 1: voluntary? Rule: before a confession of guilt will be allowed to be admitted into evidence, and presented to the jury, the trial judge must find that it was voluntarily made by a preponderance of evidence Subjective Test: under totality of circumstances, was ∆’s will actually overborne, considering the following factors: ∆’s personal characteristics: – Age – Education – Physical or Mental Condition Nature of detention Manner of interrogation Use of force, threats, promises or deceptions – Rule: statements obtained through deceit are generally admissible as long as deceit does not nullify Miranda warnings, circumvent right to counsel, overbear the individual’s will, or call into question reliability of the statement.

16. Step 2: right to counsel? Rule: right to counsel is violated after adversary judicial proceedings have begun and the police question ∆: outside the presence of counsel; or without a valid waiver of the right to counsel

17. Step 3: custody? Rule: a person is in custody if his freedom of movement has been limited by the police.  Objective Test: a person will be found to be in custody if a reasonable person under the circumstances would feel that his freedom of action was denied in a significant way (subjective characteristics ignored)  Orozco v. Texas—at 4 AM, four officers entered ∆’s house, went to his bedroom, awakened ∆, and began to question him about a murder. Under these circumstances, a reasonable would not feel free to leave.  The mere fact that an interview took place at a police station is presumptively custodial as long as suspect is free to leave.

18. Exclusionary rule The exclusionary rule prevents the government from using most evidence gathered in violation of the United States Constitution. The exclusionary rule applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment, to improperly elicited self- incriminatory statements gathered in violation of the Fifth Amendment, and to evidence gained in situations where the government violated defendants’ Sixth Amendment right to counsel.

19. “Fruit of the Poisonous Tree” Evidence gathered with the assistance of illegally obtained information must be excluded from trial. Thus, if an illegal interrogation leads to the discovery of physical evidence, both the interrogation and the physical evidence may be excluded, the interrogation because of the exclusionary rule, and the physical evidence because it is the “fruit” of the illegal interrogation. This doctrine is subject to three of important exceptions. The evidence will not be excluded: (1)if it was discovered from a source independent of the illegal activity; (2)its discovery was inevitable; or (3)if there is attenuation between the illegal activity and the discovery of the evidence.

20. Brief overview of criminal “timeline” After an arrest, 1 of 3 things happens: The defendant is released if the prosecutor (usually the district attorney or the city attorney) decides not to file charges; or The defendant posts bail (also called a “bond”) or is released based on a promise to appear in court at a later date for arraignment. If either of these happen, the district attorney or police tell the defendant when to come to court for arraignment; or The defendant stays in jail. Law enforcement officers transport the defendant to the court for arraignment.

21. File charges? The prosecutor then decides whether to file charges and, if so, what charges to file. The prosecutor decides whether to charge the crime as a felony or a misdemeanor. Since defendants have a right to a speedy trial, the prosecutor must generally file charges within 48 hours of the arrest when the defendant is in custody (in jail).

22. Arraignment The arraignment is the first time the defendant appears in court. At the arraignment, the judge tells the defendant: What the charges are, What his or her constitutional rights are, and That if he or she does not have enough money to hire a lawyer, the court will appoint a lawyer free of charge. The defendant may then respond to the charges by entering a plea. Common pleas include guilty, not guilty, or no contest (also known as “nolo contendere”). Not Guilty means the defendant says he or she did not commit the crime. Sometimes, defendants enter a plea of not guilty as a strategic decision during plea bargaining or because they want to go to trial and force the prosecution to prove its case beyond a reasonable doubt. Guilty means the defendant admits he or she committed the crime. The judge finds the defendant guilty and enters a conviction in the court record. No Contest means the defendant does not contest (disagree with) the charge. This plea has the same effect as a guilty plea, except the conviction generally cannot be used against the defendant in a civil lawsuit. If the defendant is in custody at the time of arraignment, after the defendant enters a plea (responds to the charges), the judge will: Release the defendant on his or her “own recognizance” (which means the defendant promises to return to court on a specified date), OR Set bail and send the defendant back to the jail until the bail is posted, OR Refuse to set bail and send the defendant back to jail.

23. After arraignment In misdemeanor cases, if the defendant enters a not guilty plea, after the arraignment and before the trial: The prosecution and the defense exchange information. This is called “discovery.” Either side can file pretrial motions, including motions to set aside (cancel) the complaint, to dismiss the case, or to prevent evidence from being used at trial. The defendant can change his or her plea to guilty or no contest. The judge and lawyers from both sides may talk about how the case can be resolved without going to trial.

24. In felony cases, after the arraignment, if the case does not settle or get dismissed the judge holds a preliminary hearing. At this hearing, the judge will decide if there is enough evidence that the defendant committed the crime to make the defendant have to appear for a trial. If the judge decides that there is enough evidence, the prosecutor will file a document called “the Information.” Then, the defendant will be arraigned, a second time, on the Information. At that time, the defendant will enter a plea and proceed to trial. Before the trial, the same things can happen as described before with misdemeanors.

25. Trial Defendants in criminal cases (other than infractions) have the right to have a jury of their peers decide their guilt or innocence. Therefore, before trial, defendants need to decide whether to have a jury trial (where the jury decides if the defendant is guilty or not) or a court trial (where the judge decides). Everyone accused of a crime is legally presumed to be innocent until they are convicted, either by being proved guilty at a trial or by pleading guilty before trial. This means that it is the prosecutor who has to convince the jury that the defendant is guilty and must provide proof of guilt beyond a reasonable doubt. The defendant has the right to remain silent and that silence cannot be used against him or her.