FREE ESSAY ON CRIMINAL PROCEDURE

CRIMINAL PROCEDURE

Question # 1
The overall issue is whether the offered evidence obtained by the State in the robbery
trial of Andy and Bob should be suppressed.
The first issue is whether Officer Short had probable cause to stop the VW bug. When a
police officer has probable cause to believe that a suspect has committed a crime, the
officer makes an arrest. An arrest may occur either with or without a warrant (most are
made without a warrant). Arrest usually involves taking the suspect into custody and
transporting him to the police station. Officer Short believed that the individual and
the car fit the description of the recent robbery of the pharmacy. However, the defendant
will argue that the description was too vague, that it was not in close proximity of the
crime scene, that there was a lapse of time and the office was not in hot pursuit of the
defendant.
The 4th amendment provides, 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 place to be searched, and the persons or
things to be seized. The 4th amendment thus applies both to searches and seizures of
property, and to arrests of persons. Generally, the fact that D was arrested in an
unconstitutional manner makes no difference: a defendant may generally be tried and
convicted regardless of the fact that his arrest was made in violation of the 14th
amendment. However, when evidence is seized as part of a warrantless search conducted
incident to an arrest, the evidence will be excluded as inadmissible if the arrest was a
violation of the Constitution (e.g., the arresting officer did not have probable cause to
believe that D had committed a crime). Office Short did not have a warrant to search
Andy's car. However Office Short will argue that he did have probable cause that Andy had
committed the robbery based on the earlier description and the fact that after Officer
Short pulled Andy over that his outfit was more consistent with the earlier description.
A warrant is usually required before a search or seizure takes place, unless there are
exigent circumstances". There is no evidence that Officer Short had any exigent
circumstance to search the car. However, the state will argue that the search was just a
cursory search within the limits of the constitution. The police were only conducting a
brief stop and frisk that does not require and only need some reasonable suspicion.
Terry. 
For there to be probable cause to arrest a person it must be more likely than not that a
violation of the law has been committed and person to be arrested committed the
violation. Andy did violate the law by speeding and Andy was the one who was driving the
car. However, this is not enough of a probable cause that can be linked to the robbery.
For there to be probable cause to search particular premises, it must be more likely than
not that the specific items to be searched for are connected with criminal activities
these items will be found in the place to be searched. The state will argue that because
there was only a two hour time difference between the robbery and is was still within a
four mile vicinity of the crime scene that it was more likely than not that there was
evidence in the car. Furthermore, an automobile search falls within an exception to the
search of a car when the driver is arrested and both driver and car are taken to the
police station. In general, when the police are making a lawful arrest, they may search
the area within the arrestee's control and only the area that is at least theoretically
within defendant's immediate control. Under the seat is within the immediate control.
Further more, where the police arrest the driver, take him and his car to the station,
and search the car there, no search warrant is generally required and the two ski mask
that were found are admissible as evidence. 
The court will likely that the evidence seized was within the constitutional
requirements, that Officer Short did have probable cause to believe that the car and the
defendant were involved in the robbery and that all evidence seized should not be
suppressed. 
The next question is was this an arrest and would a reasonable person believe that that
are being arrested? If you are making an arrest then Miranda must be given. However if
you are citing, no Miranda. The person does not always have to be in handcuffs to be
under arrest. Some factors that are considered are the number of officers present, the
time of day, and the officer's demeanor. Voluntary trips to the station are not custody.
In addition, if the individual is in jail you still have to give Miranda because the
individual is in a coercive environment. Two requirements for confessions: The confession
must have been voluntary, i.e., not the product of coercion by the police; and the
confession must have been obtained in conformity with the Miranda decision - in brief, if
the confession was given by the suspect while he was in custody and under interrogation
by the authorities, the suspect must have been warned that he had the right to remain
silent, that anything he said could be used against him, and that he had the right to
have an attorney present. Nevertheless, the test for determining the voluntariness of a
confession is one that is fairly easy to satisfy. Apparently, the only thing that can now
prevent a confession from being found to be voluntary is police coercion. Thus neither
coercion by non-government personnel, nor serious mental illness on the suspect's part,
is relevant to this question. If a confession is obtained by police coercion and is thus
involuntary, it must be excluded not only from the prosecution's case in chief, but also
from use to impeach D's testimony. A volunteered statement is not covered by Miranda.
That is, if a suspect, without being questioned, spontaneously makes an incriminating
statement, that statement may be introduced against him, despite the absence of Miranda
warnings. : This is true even if the statement comes from a suspect who is in custody. So
long as the statement is not induced by police questioning, the fact that the suspect is
in custody is not enough to trigger Miranda. Nevertheless, interrogation for Miranda
purposes includes more than just direct questioning by the police. Interrogation will be
deemed to occur whenever a person in custody is subjected to either express questioning,
or to words or actions on the part of the police that the police should know are
reasonably likely to elicit an incriminating response from the suspect. Application of
this should know are reasonably likely to elicit an incriminating response test will
often mean that even though the police make comments that lead directly to an
incriminating result, no interrogation is found. The facts states that when Officer Short
placed Andy under arrest and did read the Miranda rights that Andy was aware of his
rights. At that point, Andy stated in not so definite terms that he wanted an attorney.
At that point, invocation is in place and the police must cease all questioning. However,
Andy waived his right when he voluntarily, knowingly, and intelligently made the
statement " the old guy never saw our faces," and " I knew I should have never let Bob
talk me into this." Thus, these statements are admissible.
The next issue is the pre-trial identification of Andy by Victor. There are four
plausible constitutional objections that D may be able to make to the use of one of these
procedures against him: (1) that it violates D's privilege against self-incrimination;
(2) that it constituted an unreasonable search or seizure in violation of the 4th
amendment (3) that if D did not have a lawyer present, the use of the procedure violated
his 6th amendment right to counsel; and (4) that the procedure was so suggestive that it
violated D's 5th and 14th right to due process. The objection that is most likely to
succeed is that use of one of these procedures without Andy's lawyer present violated his
right to counsel; the next most-likely to succeed is the argument that the procedure was
so suggestive that it violated due process (most likely to work where the procedure was a
lineup, show-up, or photo ID). The self-incrimination argument will almost never work,
and the search and seizure argument has a chance of working only if the police lacked a
warrant and/or probable cause. Although Andy self incriminated himself by stating that
the old guy never saw his face will still be admissible. However, the one-man line-up and
identification of Andy at the place of the robbery will most likely be suppressed. The
reason the identification procedure was so unnecessarily suggestive and so conducive to
mistaken identification, as to be deeply unfair to Andy. Furthermore, when Andy asserts
in the first session that he wanted an attorney it is much harder for the State to show
that Andy later waived this demand. The Court imposes a bright line rule that an
accused...having expressed his desire to deal with the police only through counsel, is
not subject to further interrogation...until counsel has been made available to him,
unless the accused himself initiates further communication...with the police. Edward's
Furthermore the statement were coerced out of Andy by Officer Short while he was in the
confinement of the car without his lawyer present when he had already requested one and
Miranda was not initiated a second time. This evidence is most likely to be suppressed. 
The next issue is whether or not the evidence obtained from Bob's and Mother Burton's
house should be suppressed. 
Although Officer Short had probable cause, there is no evidence to show that extingent
circumstances existed that required her not to obtain a search or arrest warrant of Bob.
Furthermore, so all evidence seized during the search is admissible. Thus the gun seized
from the hutch, the possession of cocaine, and the software piracies are inadmissible.