Thompson Crim Pro Outline

Thompson Crim Pro Outline

GENERAL PRINCIPLES

What is a Criminal Case?

If Congress says a statute is noncriminal, it is presumptively not criminal. To beat that, the plaintiff must show that the statute is “so punitive in purpose or intent” that the presumption is overcome.

• Is there a legitimate, nonpunitive nongovernmental objective?

New Federalism

State courts can establish greater constitutional protections as a matter of state law than SCOTUS has as a matter of federal law.

• But states can’t establish fewer protections. The federal Constitution is a floor below which states cannot go.

• AFS is not a fan of this. He thinks that when a state court does this, it’s saying that it knows better than SCOTUS. And it’s hard to cabin a state’s discretion to do this.

• It also creates silver platter problems. If the feds can’t do it, they’ll get the cops to do it.

• If a state court wants to do this, it needs to make clear that it’s acting only as a matter of state law. If it’s unclear, SCOTUS will review.

Due Process

If a specific part of the Bill of Rights touches on a given area, you generally can’t rely on a separate due process right to that same protection.

• But there are some exceptions. Like coerced confessions.

• And Due Process can come in if the government has some purpose beyond criminal law enforcement (like civil forefeiture)

• And Due Process is viable in areas where no specific Bill of Rights guarantee applies (like the right to only be tried if competent).

Retroactivity

When a new Constitutional rule is announced, it applies to all cases currently pending on direct review. But it only applies retroactively on habeas review if the rule places some kinds of primary, private, individual conduct beyond the power of lawmaking authority to proscribe, or if it requires procedures that are implicit in the concept of ordered liberty. Teague.

• But when a new rule benefits the police, it does apply retroactively in habeas cases. Lockhart. Which is kind of bullshit.

SEARCH AND SEIZURE

Fourth Amendment Overview

Who Gets Fourth Amendment Rights?

The Fourth Amendment applies only to “the people,” so you need a “sufficient connection” to the U.S. to get its protection. Verdugo-Urquidez.

• Verdugo-Urquidez holds that the 4th Amendment does not apply to property outside the US owned by a nonresident alien.

• Five justices say it would cover undocumented aliens in the US.

• Less clear about someone who just swam over the Rio Grande. But AFS thinks so.

Reasonableness Clause vs. Warrant Clause

All searches without warrants are presumptively unreasonable, with some exceptions. But there are a lot of exceptions.

• We want antecedent justification, not an ex post rationalization. And we want it done by a detached and neutral magistrate.

• It’s important that this be decided by someone other than cops.

Technology and REOPs

Using sense-enhancing technology to view the interior of a home, in a way that you couldn’t with the naked eye, amounts to a search, at least where the technology is not generally available to the public. Kyllo.

• Key difference between Kyllo (thermal imaging case) and aerial surveillance – the thermal imager lets you see inside the walls.

• Key is general availability – specialists and techies could get thermal imagers, but they weren’t widely used by the public. It’s a form of notice – if something is generally available, you know it could be used on you.

• Kyllo seems to be focused on the home.

What the 4th Amendment Covers – REOPs

In order to receive 4th Amendment protection, a person must have exhibited an actual/subjective expectation of privacy, and that expectation must be reasonable. Katz. If there’s no REOP, it’s not a search.

• Example of Katz – he shut the door to the telephone booth (actual expectation), and telephone booths are private spaces (reasonable expectation).

• Counterexample of open fields – putting up a fence shows a subjective expectation of privacy, but that’s not reasonable.

• You don’t have a REOP in a conversation with another person, if that person consents to record/disclose it. US v. White.

• You don’t have a REOP in financial records, since you share them with your bank. Cal. Bankers Assn. v. Schultz.

• You don’t have a REOP in the phone numbers you dial, since you share them with the phone company.

• If something is accessible to the public – like looking in an open window, then there’s no REOP – you haven’t shown subjective expectation of privacy. Example of the aviation cases – anyone could fly over your property and take a photo.

• You also need standing to have a REOP. You generally don’t have a REOP in somebody else’s property (unless you’re staying there or something).

• You don’t have a REOP in trash, because you’ve abandoned it. Greenwood. Unless you’ve shredded or torn up something.

• Knotts says you have no REOP in your movements in a public place. But Weaver says that as a matter of state law the cops can’t put a GPS on your car.

• There is no REOP in the chemical nature of drugs. Jacobson.

Probable Cause

Probable Cause

Probable cause is a “practical, common-sense decision” whether, under the totality of the circumstances, there is a “fair probability that evidence will be found in a particular place. Gates v. Illinois.

• Gates says probable cause is less than a preponderence. It’s not a precise mathematical standard at all, just a probability. NY law says it is a preponderence.

• A probable cause determination is given very deferential review on appeal – the magistrate must only have had a “substantial basis” for finding Probable Cause. We want to reward a cop for getting a warrant, and we’re less concerned about the privacy rights of someone who turned out to be guilty.

• It doesn’t matter if you the cops probable cause to arrest somebody for crime A and end up charging them with crime B. Devenpeck.

• Similarly, it doesn’t matter if the cops have probable cause to arrest someone for a crime, but he turns out to be innocent (or they arrest someone thinking they’re someone else). Hill.

• The information amounting to probable cause can become stale. There may have been coke in a car in February, but that doesn’t justify searching the car in august.

Prior Convictions

They can’t come in for the actual trial, but they can factor into determining probable cause.

Probable Cause and Witnesses

While a witness’ Veracity and Basis of Knowledge are “highly relevant,” a prosecutor does not have to rigidly demonstrate both – strength in one prong can make up for weakness in another. Gates.

• The area used to be governed by the two pronged test from Aguilar and Spinelli, focusing on Veracity (V) and Basis of Knowledge (BK). This is still relevant, and it’s still the test in a bunch of jurisdictions, including NY.

• AFS suggests looking at the prongs as “discounting factors” – look at the facts – if they’re true, is there probable cause? Then discount the testimony by the defects in V or BK.

• Citizen informants are presumed to be reliable and acting out of civic duty.

• Sometimes the sheer level of specificity in a witness’ statement can help to bolster his V and BK.

• At a suppression hearing, the government can still hide the identity of a confidential informant. McCray v. Illinois. Though the judge can review it in camera.

Corroboration

Corroboration can strengthen a witness’ testimony in determining Probable Cause.

• Corroboration definitely leads to an inference of veracity. And Draper suggests that lots of corroboration can support Basis of Knowledge as well.

• But it still amounts to a leap of faith. Just because a witness knew where a person would be and what they’d be wearing, that doesn’t mean that the witness is right about the heroin in his briefcase.

Search Warrants

What Can be Searched for/Seized?

• The government can search for “mere evidence”, in addition to instrumentalities and fruits of a crime. Warden v. Hayden.

• Search warrants can be unreasonable, even if they’re supported by probable cause. Example of Winston v. Lee, where the government wasn’t allowed to cut a guy open to get at a bullet left inside him. But sometimes courts will let the police invade the body, like for swallowed bags of heroin.

Where can the Government Search?

In order to search a given location, the police must have “reasonable cause to believe that the specific things to be searched for and seized are located on the property.” Zurcher v. Stanford Daily.

• This means that the police can’t search a person’s home just because he was involved in a crime. They need some sort of connection between the home and criminal activity.

• A warrant needs to be specific about what the cops are looking for, and they can’t look anywhere that it couldn’t be. If you’re looking for an assault rifle, you can’t look in somebody’s bedside table.

• The police can search places that aren’t owned or even connected to a suspect. Example of the newspaper in Zurcher v. Stanford Daily.

• The key is reasonableness. The cops can search the wrong premesis (and use what they find), even if they made a mistake. As long as it was a reasonable mistake. Example of the extra apartment in Md. v. Garrison.

Anticipatory Warrants

You can have a warrant for a place where there will only be probable cause in the future – you just have to specify the event that will trigger probable cause, and there has to be a reasonable probability that event will occur. United States v. Grubbs.

• Example of a motel room where a drug deal will happen tomorrow.

• All wiretaps are anticipatory warrants.

Specificity

A warrant has to be specific in describing what evidence the police can look for and where they can look.

• We want to avoid a general warrant like the British used, which let the police go anywhere they want to look for anything they can find.

• When there’s a general clause at the end, the court will construe it to relate to the words around it, saving it. Like in Andresen.

• But rummaging is an inherent problem. Think of Andresen’s filing cabinet – how do you stop the cops from looking everywhere when the perp could have just put the incriminating documents in a mislabeled folder?

• If a warrant is overbroad, most courts will only suppress evidence gathered under the unconstitutional part of the warrant. This is called severance.

Timing

Once a warrant is issued, it has to be executed within ten days, and it must be executed during thdaytime, unless the judge for good cause expressly authorizes another time of day. Fed.R.Crim.P. 41(e)(2).

Notice

In general, an officer executing a warrant must give a copy of the warrant to the person whose premises are searched. Fed.R. Crim.P. 41(f)(1)(C). But a judge can delay notice if authorized by statute, Fed.R.Crim. P. 41(f)(3), and the Patriot Act allows secret searches if there is reasonable cause to believe that giving notice would 1) endanger a person, 2) lead the suspect to flee, 3) lead him to destroy evidence, 4) lead to intimidation of witnesses, or 5) otherwise seriously jeopardize an investigation or delay a trial.

Police Action

In executing a warrant, the cops can only do things “related to the objectives of the authorized intrusion. No media ridealongs, perp walks, etc.

Arrests

AFS’ Big Table

4th Amdt. Requirement
ARREST / Probable Cause
STOP / Reasonable Suspicion
ENCOUNTER / N/A

The Big Table in New York

4th Amdt. Requirement
ARREST / Probable Cause
STOP / Reasonable Suspicion
COMMON LAW INQUIRY / Founded Suspicion
REQUEST FOR INFORMATION / Objective Credible Reason

• AFS does not like this framework.

When Can You Arrest Somebody?

A police officer can arrest a suspect without a warrant, for any crime, as long as there’s probable cause and it’s in a public place. Atwater, Watson.

• An arrest is always reasonable under the 4th amendment if there is probable cause. Atwater. Even if the crime is truly minor.

• An arrest warrant is not required to arrest someone in a public place. Requiring a warrant for every felony arrest would be too burdensome on law enforcement. Watson.

• But there are reasons that you would want an arrest warrant. You can send it to other jurisdictions. You get deferential review under Gates as to the arrest. It lets you go into a home if the person is there. And it impresses the suspect, which could lead him to confess.

Use of Excessive Force

Under the 4th Amendment, deadly force cannot be used against a fleeing suspect unless it is necessary to prevent escape and the office has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to othere. Tennessee v. Garner.

• Claims of excessive force in making arrests are governed by a reasonableness standard.

• But in Scott v. Harris, Scalia says Garner isn’t a hard and fast rule, just reasonableness applied in that particular situation. In the context of a car chase, deadly force was allowed, even though the cops could have let the guy escape.

Arrests vs. Stops

AFS: Basically, what changes a stop into an arrest is either Force or Time.

• Forced movement to a custodial area amounts to an arrest. Example of taking Royer’s ID and plane ticket and moving him to a small room in the airport.

• Where the cops take someone is important. Taking someone back to the scene for identification is fine as part of a stop. People v. Hicks. But taking someone to the precinct isn’t.

• The cop can’t hold someone overly long or say he isn’t free to go without it being an arrest. But he can ask questions afterward – sort of an encounter after the stop. Robinette.

• But the person doesn’t have to answer questions, of course.

• Always ask: What is the nature of the force, and what is its duration?

Arrests, Warrants, and The Home

The police can constitutionally enter a home only if they have a search warrant (Payton) or an arrest warrant for someone they reasonably believe is there (Olson). But if they enter a home and arrest someone with no REOP, he can’t object (Carter).

• Payton holds that if police have an arrest warrant, they can enter a home to arrest the suspect. They don’t need probable cause that he’s there, just “reason to believe” he’s there.

• Though of course exigent circumstances allow the police to enter as well.

• And of course, once you enter the home, you can see what’s in plain view, do a SITA, etc.

• Remember, a Payton violation means the entry is unconstitutional, but the arrest isn’t (because of probable cause). So the guy is still arrested, but the entry and its fruits are out.

• In Steagald, the court held that you need a search warrant to look for a suspect in the home of a third party, absent exigent circumstances or consent. This requires probable cause for the location.

• In Olson, the court rules that the police just need an arrest warrant to get an overnight guest in someone else’s home. The key is that the homeowner gets the same amount of protection as his guest does. They share a REOP.

• Temporary visitors for limited purposes get even less protection. Example of the coke distributors in Carter, who were in a house for only a couple of hours, engaging in a commercial transaction. There, a search was fine even without a warrant.

• If the cops have an arrest warrant and reason to believe that someone is in there, but the target has no REOP, Steagald still applies –target has no REOP and no protection, but the homeowner is protected – they need a search warrant to use any evidence against him.

• Four ways cops can be lawfully on the premises: 1) if they have a search warrant, 2) if they have an arrest warrant for a homeowner and believe that he is there, 3) if they have an arrest warrant for the guest and believe he is there, and 4) even with no warrant, they can prevail against someone with no REOP.

Material Witnesses

If a person’s testimony is material to a criminal case and the government shows that it may become impracticable to get his testimony by subpoena, the government can arrest the person and treat him like an arrestee for a crime. 18 U.S.C. § 3144.

• The standard for materiality is probable cause to believe something is material.

• You can detain someone as a material witness for a grand jury, even though you’re talking about probable cause to prove materiality for a probable cause proceeding. Awadallah.

• You can’t keep detaining someone if you can take their testimony by deposition and if detention is not necessary “to prevent a failure of justice.” 18 U.S.C. 3144.

• You can’t use the material witness statute to do an end run around the 4th amendment and detain someone just suspected of a crime for whom there’s no probable cause. Awadallah.

Knock and Announce

Statutes everywhere require officers executing a warrant to knock and announce their presence before busting in. Fed. Statute is 18 U.S.C. 3109.

• In some cases, this is a constitutional right. Wilson v. Arkansas.

• Don’t need to knock/announce if the door is open – it’s not a breaking. US v. Remigio.

• And cops can break in without knocking or announcing if doing so would create a risk of harm or destruction of evidence. Richards v. Wisconsin.

• Sometimes you can get a “no knock” warrant. United States v. Banks.