Criminal Procedure—Mini Outline

Con Law applied to cops—and about half of the combined Criminal Law & Procedure MBE subject. For any police conduct, ask: which amendment is triggered, was the action valid, and if not, is the evidence suppressed?

1. Fourth Amendment—arrest, search & seizure

• Threshold: the 4th Amendment applies only to government conduct invading a reasonable expectation of privacy, and the defendant needs standing (his own expectation). No REP in things knowingly exposed to the public (open fields, garbage at the curb, bank records).
• Arrests require probable cause; an arrest warrant is needed to arrest in the suspect's own home absent exigency. A brief investigatory Terry stop needs reasonable suspicion, and a frisk needs reasonable suspicion the person is armed.
• Warrant requirement: a valid warrant needs probable cause, particularity, and a neutral magistrate, executed reasonably (knock-and-announce).
• Warrant exceptions (memorize these): search incident to a lawful arrest (wingspan; for cars, only if the arrestee can reach it or evidence of the arrest crime is likely); automobile exception (probable cause → search anywhere it could be, including containers); plain view; consent (voluntary, by someone with apparent authority); stop and frisk; hot pursuit / exigent circumstances / evanescent evidence; and inventory/special-needs searches (checkpoints, schools, borders).
• Wiretapping and electronic surveillance need a warrant; tracking a car long-term or a phone's location generally does too.

2. The exclusionary rule

• Evidence obtained in violation of the 4th, 5th, or 6th Amendment is generally suppressed, along with its fruits (fruit of the poisonous tree).
• Limits & exceptions: good-faith reliance on a facially valid warrant, independent source, inevitable discovery, and attenuation. The rule doesn't apply to grand juries, civil cases, parole hearings, or (generally) impeachment of the defendant's own testimony. Only the defendant whose rights were violated can object.

3. Fifth Amendment—confessions & self-incrimination

• Miranda warnings are required before custodial interrogation (custody = not free to leave; interrogation = words/conduct likely to elicit a response). Violations bar the statement in the case-in-chief (but a voluntary statement may impeach).
• Invoking silence or counsel must be unambiguous; after counsel is invoked, all interrogation must stop. A waiver must be knowing, voluntary, and intelligent.
• Confessions must also be voluntary under due process (no coercion). The privilege against self-incrimination covers testimonial, not physical, evidence.
• Double jeopardy attaches (jury sworn / first witness) and bars retrial for the same offense (Blockburger same-elements test). Exceptions: hung jury, mistrial for manifest necessity, retrial after a successful appeal, and separate sovereigns.

4. Sixth Amendment

• Right to counsel attaches at the initiation of formal proceedings and is offense-specific, covering all critical stages (arraignment, post-charge lineups, plea, trial, sentencing, first appeal). Ineffective assistance (Strickland): deficient performance and prejudice.
• Identifications: a post-charge lineup/showup has a right to counsel; unnecessarily suggestive procedures creating a substantial likelihood of misidentification violate due process.
• Also: the rights to confront witnesses, to a speedy trial, to a public trial, and to an impartial jury (for serious offenses).