WORKBOOK CRIMINAL PROCEDURE Page 1

WORKBOOK CRIMINAL PROCEDURE Page | 1

GOULD'S WORKBOOK

for

CRIMINAL PROCEDURE

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TABLE OF CONTENTS

Chapter 1. INTRODUCTION TO GOULD’S LEGAL LEARNING METHOD…4.

Chapter 2. GOULD’S SHOPPING LIST…5.

Chapter 3. CONSTITUTIONAL PROTECTIONS…6.

Chapter 4. SEARCHES and SEIZURES…7.

Chapter 5. ARRESTS…10.

Chapter 6. SEARCH WARRANTS…12.

Chapter 7. OTHER SEARCHES…15.

Chapter 8. EXCEPTIONS to SEARCHES…19.

Chapter 9. THE EXCLUSIONARY RULE…21.

Chapter 10. MIRANDA VIOLATIONS…25.

Chapter 11. SIXTH AMENDMENT RIGHT TO COUNSEL…30.

Chapter 12. TRIALS…33.

Chapter 13. GOULD'S LEARNING SYSTEM…39.

Chapter1.

INTRODUCTION TO GOULD’S

LEGAL LEARNING METHOD

Gould's Legal Learning Techniques have been honed over many years, and have helped thousands of law students to succeed in their legal studies.

Gould's unique and innovative learning strategies focus on long-term storage of important and cognizable concepts. Students learn the larger concepts until they are second-nature. Then, they learn the sub-issues, until they have a solid grasp of Gould’s Law Templates.

Finally, students learn the rule statements that relate to each concept, to fill out their understanding of each area of legal doctrine.

Before exams begin, students write out a cognizable list of possible issues, aiding to spot more issues. Gould’s Shopping Lists reliably help students to spot more issues on each essay they write. Shopping Lists allow students to cue in on the important concepts in each essay, and to remember to write their essay responses from an holistic and comprehensive perspective.

Many legal exams are based on strict timing, and Gould’s Techniques comport nicely with speed testing. Gould’s Issue Templates, and Gould’s Shopping Lists, focus the students on the ISSUES AND SUB-ISSUES, quickly, and precisely, thereby enhancing the ability of law students to write dynamic essays.

Chapter 2.

GOULD’S SHOPPING LIST FOR CRIMINAL PROCEDURE

Gould's Shopping List for Criminal Procedure consists of seven items:

GOULD'S SHOPPING LIST FOR CRIMINAL PROCEDUE

1. 4TH AMENDMENT SEARCHES AND SEIZURES.

2. WARRANT SEARCHES.

3. SPECIFIC SEARCHES.

4. 5TH AMENDMENTMIRANDA RIGHTS.

5. 5TH AND 6TH AMENDMENT RIGHTS TO COUNSEL.

6. EXCLUSIONARY RULE.

7. TRIAL-BASED ISSUES.

Approximately seventy percent of subjects tested in Criminal Procedure relate to 4th Amendment searches and seizures, including warrant searches and specific searches. About twenty percent of fact patterns relate to 5th Amendment issues, and about ten percent of fact pattern issues relate to the remainder of Criminal Procedure.

CHAPTER 3.

CONSTITUTIONAL PROTECTIONS

BASIC TEMPLATE.

CONSTITUTIONAL PROTECTIONS.

4th, 5th and 6th Amendments.

ESSAY HINTS.

Start your criminal procedure essay responses with a short statement that encapsulates the overall context of the course, by stating the Constitutional basis of your analysis.

GOULD’S DOCTRINE.

CONSTITUTIONAL PROTECTIONS

The Fourth Amendment to the Constitution of the United States of America prohibits unreasonable searches and seizures by the government. The Fifth Amendment protects against self-incrimination, double jeopardy, and provides for a right to counsel. The Sixth Amendment provides for a right to counsel in felony cases and in misdemeanor cases where imprisonment is imposed, a right to a speedy trial, a right to a public trial, a right to trial by jury, a right to confront witnesses, and a right to compulsory process for obtaining witnesses. The Eight Amendment prohibits cruel and unusual punishment. The Fourteenth Amendment's due process clause provides, through selective incorporation, that the above rights are made applicable to the states.

CHAPTER 4.

SEARCHES and SEIZURES

BASIC TEMPLATE.

SEARCHES AND SEIZURES

FOURTH AMENDMENT.

Reasonable Expectation of Privacy.

Items of a Public Nature.

Government Official.

Search with a Device Not in General Use.

ESSAY HINTS.

“Set-up” a discussion of a search or seizure, with a discussion of the 4th Amendment protections that citizens have against unreasonable searches and seizures.

Citizens often have a reasonable expectation of privacy against governmental intrusion as relates to their persons, houses, papers and effects.

However, some items are of a public nature, and citizens do not have a reasonable expectation of privacy in such items.

GOULD’S DOCTRINE.

FOURTH AMENDMENT.

The Fourth Amendment to the Constitution of the United States of America provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the places to be searched, and the persons or things to be seized.

REASONABLE EXPECTATION OF PRIVACY. Where a person has standing to assert that their own personal 4th Amendment rights have been violated, they will be said to have had a reasonable expectation of privacy from governmental intrusion, under protections afforded under the 4th Amendment to the Constitution of the United States of America. An individual who has an ownership interest in the premises, will have a reasonable expectation of privacy against governmental intrusion into their house, papers, person and effects. An individual will have a reasonable expectation of privacy and have automatic standing to assert the exclusionary rule, where they own the premises searched, live on the premises searched, or where they are an overnight guest or legitimately present on the premises.

ITEMS OF A PUBLIC NATURE.

An individual will not be able to assert that the following items should be excluded as evidence because they are public in nature:

The sound of one's voice.
Garbage that is put out for collection.
Abandoned property.
Odors that emanate from luggage.
Handwriting exemplars.
Paint on a car.
Bank accounts.
The location of a car on the street or a driveway.
Open fields and unoccupied and undeveloped land outside of the curtilage of a home.
Pen registers of dialed telephone numbers.
Things seen from a public navigable airspace, which is non-intrusive.

AND

False Friend Doctrine. Private conversations are also considered of a public nature, because a friend may be eavesdropping. However, a person in a closed telephone booth has a reasonable expectation of privacy from electronic eavesdropping devices on the outside of the telephone booth.

GOVERNMENTAL OFFICIAL.

Police officers that are paid by the government are considered governmental officials, even if they are off duty. Additionally, private persons acting at the direction of publicly paid police officers, and privately paid police that have been deputized with the power to arrest by publicly paid police officers, are also considered governmental officials.

SPECIAL SITUATIONS.

A third party may have standing to assert the exclusionary rule, where they have joint access and control of the property seized. A person who stays overnight at someone else's house, has standing to assert the exclusionary rule. Additionally, a passenger in a car that is randomly stopped by police, has standing to assert the exclusionary rule. However, passengers in a car in which they do not own the car or the items seized, people who are briefly on another person's premises for a criminal purpose, or co-conspirators who have evidence seized from another co-conspirator, have no standing to challenge seizures. Individuals briefly present on the premises for illegal purposes, or as a passenger in a car in which someone else's property is seized, will not have standing to assert the exclusionary rule.

SEARCH WITH A DEVICE NOT IN GENERAL USE.

Where the government uses a type of surveillance device that is not in general use to the public, in order to search a private home, and the device makes knowable what would have otherwise been unknowable without physical intrusion, such surveillance is a 4th Amendment search, and a search warrant is needed.

CHAPTER 5.

ARRESTS

BASIC TEMPLATE.

ARRESTS.

Brief Detention.

Stop and Frisk.

Stop v. Arrest.

Public Arrest.

Probable Cause.

ESSAY HINTS.

In general, police officers may detain a person to ask a question or two.

If a police officer has a reasonable suspicion of criminal activity, they may effectuate a stop and frisk.

At some point, if probable cause is established, a police officer may effectuate a public arrest.

GOULD’S DOCTRINE.

ARRESTS. A non-emergency arrest of an individual in their own home requires an arrest warrant. An arrest of an individual in a public place requires probable cause.

BRIEF DETENTION. Police officers may make a minimal intrusion upon an individual to ask a question, unless done with whim or caprice. If police have a founded suspicion that criminal activity is afoot, they may briefly detain an individual to ask questions, and must release the individual if they respond appropriately.

STOP AND FRISK. Where police have a reasonable suspicion, less than probable cause, that criminal activity is afoot, or that a suspect is armed and dangerous, they may conduct a pat down search of a suspect in order to search for concealed weapons. A reasonable suspicion will be present where a police officer observes unusual conduct, or observes other objective, specific and articulable facts that lead him to reasonably conclude that criminal activity is afoot. Reasonable suspicion will also exist where a suspect flees. The frisk must be confined in scope to a search for hidden weapons that can be used to assault someone, but the police officer may not search for evidence.

STOP V. ARREST.

Once a stop becomes an arrest, then probable cause is needed. An arrest occurs when under the totality of the circumstances, a reasonable suspect would conclude that they were not free to leave. Indications that a stop has turned into an arrest occur when the police enact a physical show of force or authority restraining a persons' liberty, where the search is longer or more intrusive than reasonably necessary, or where the suspect is transported.

PUBLIC ARREST. Police need probable cause to arrest a person in public. Police and private citizens may make arrests for felonies that are committed in their presence. Police may arrest a person for a felony not committed in their presence, where the police officer has reasonable grounds to believe that the suspect committed the crime. However, a similar arrest made by a private citizen will be valid only if the felony was committed. Both police officers and private citizens may make arrests for misdemeanors, where the crime is committed in their presence and the misdemeanor amounts to a breach of the peace.

PROBABLE CAUSE. Probable cause exists where police have knowledge of facts and circumstances sufficient to warrant a reasonable person to conclude that the suspect committed a crime. A totality of the circumstances test is used to determine whether or not probable cause exists. Probable cause is stronger than reasonable suspicion, and indicates a reasonable amount of suspicion under the circumstances to justify a prudent and cautious person to believe that certain facts are true.

CHAPTER 6.

SEARCH WARRANTS

BASIC TEMPLATE.

SEARCH WARRANTS

VALID SEARCH WARRANT.

Detached and Neutral Magistrate.

Probable Cause.

Informants.

More Likely Than Not.

Totality of the Circumstances.

Good Faith Oath or Affirmation.

Particularity.

DEFECTIVE SEARCH WARRANT.

EXECUTION OF A SEARCH WARRANT.

No Unreasonable Delay.

Knock and Announce Rule.

Forcible Entry.

Scope of the Search.

Exceptions.

ESSAY HINTS.

A valid warrant search requires a valid search warrant and a valid execution of the search warrant.

A valid warrant requires a detached a neutral magistrate, probable cause, a good faith oath or affirmation, and particularity.

Valid execution of a search warrant requires no unreasonable delay, proper procedure through a knock and announce protocol, and a search that is within the scope of the search warrant.

Also, look for exceptions to invalid searches, discussed in Chapter 8.

GOULD’S DOCTRINE.

VALID SEARCH WARRANT.

A search warrant must be issued by a detached and neutral magistrate, with probable cause, based on a good faith oath or affirmation by a police officer, and be stated with sufficient particularity.

DETACHED AND NEUTRAL MAGISTRATE.

An attorney general is not a detached and neutral magistrate, nor is a situation where the person issuing the warrant is given a commission based on the number of warrants issued. Magistrates that accompany police to crime scenes are not considered detached and neutral. Court clerks have the ability to issue warrants for violations of city ordinances.

PROBABLE CAUSE.

Probable cause exists where police have knowledge of facts and circumstances sufficient to warrant a reasonable person to conclude that the suspect committed a crime. A totality of the circumstances test is used to determine whether or not probable cause exists, and information used to establish probable cause may be based upon hearsay. Probable cause is stronger than reasonable suspicion. Probable cause must be related to the criminal activity, such that it is more likely than not that the person committed the crime, the things to be seized are connected with criminal activity, and the things to be seized are in the place to be searched. The information used to establish probable cause cannot be illegally obtained.

Information from Informants.

Police may use hearsay from an anonymous informant in order to help establish probable cause. A totality of the circumstances test is used to determine the reliability of an informant.Information used to establish probable cause for a search warrant, may be based in part on an informant's information, if the informant's affidavit sets forth sufficient facts and circumstances related to criminal activity, to demonstrate the basis of their information, and information establishing the reliability and credibility of the informant, which is buttressed where the informant has provided relevant information in the past.

GOOD FAITH OATH OR AFFIRMATION.

When submitting information to the magistrate through oath or affidavit, police officers must act in good faith. If incorrect information is given to the magistrate by a police officer, the incorrect information will be considered as either honest police error, or as a perjured affidavit. A warrant will be invalid if it was issued due to a perjured affidavit. A defendant may challenge an affidavit which supported a warrant by showing through a preponderance of the evidence, that the affidavit contained false statements, that such statements were intentionally, knowingly or recklessly given, and that the magistrate could not have found probable cause without the false statements.

PARTICULARITY.

A search warrant must be precise on its face, and state with particularity the place to be searched, the items to be seized, and the person to be searched and / or seized.

DEFECTIVE SEARCH WARRANT.

A warrant will be invalid if it was issued due to an intentionally perjured affidavit, or where the information was given with a reckless disregard of the truth, and the information was essential to the finding that a warrant was needed. A search warrant will be defective if the underlying warrant lacks probable cause such that no reasonable police officer would rely on it, the warrant is invalid on its face because it lacks particularity, a police officer lied or intentionally misled the magistrate, or the magistrate abandoned their judicial role, or probable cause was established with illegally seized evidence. A defendant may challenge an affidavit which supported a warrant by showing through a preponderance of the evidence that the affidavit contained false statements, that such statements were intentionally, knowingly or recklessly given, and that the magistrate could not have found probable cause without the false statements.

EXECUTION OF A SEARCH WARRANT.

A police officer must enact a search warrant without unreasonable delay, normally within forty-eight hours. When executing a search warrant, a police officer must knock and announce their presence and authority as a police officer, and that they are there to execute a search warrant, before the officer may attempt a forcible entry. A forcible entry may occur when the police officer is preventing the destruction of evidence, acting in hot pursuit, or preventing a high degree of risk of harm.

SCOPE OF THE SEARCH.

A search may extend to the entire area covered by the description in the search warrant. However, the police must confine their search to the areas, things and people mentioned in the search warrant, and once police find the items mentioned in the search warrant, the purpose of the search warrant has been effectuated, and the search must cease. The search may extend to buildings within the curtilage of a place described by a street number, and the intensity of the search is determined by the things to be seized. A person who is unnamed in the warrant may not be searched due to the mere fact of their presence.

CHAPTER 7.