New York Bar Exam Preparation Condensed Revision Notes for Criminal Procedure

New York Bar Exam Preparation Condensed Revision Notes for Criminal Procedure

Criminal Procedure

Most Important topic – 4th Amendment Search & Seizure

Second  - Confessions, especially in the context of the 5th Amendment Miranda Doctrine




Threshold Q: Is the search or seizure governed by the 4th Amendment?


To determine-we must ask 4 Q


  1. Was the search or seizure executed by a government agent?


  1. Public paid police – on or off duty
  2. Private Citizens – if they are acting at the direction of the police
  3. Private security guards only if they are deputised with the power to arrest
  4. Public school administrator


  1. Was the search or seizure of an area or item protected by the 4th Amendment?
  2. 4th Amendment protect of their:
  3. Persons
  4. Houses (including the curtilage area)
  5. Papers
  6. Effects


  1. Unprotected Items

Sufficiently public no reasonable expectation of privacy – knowing exposure to 3rd parties


Mnemonic: Patty Achieved a Glorious Victory Over Her Opponents


Paint scrapping – outside of your car

Account Record – held by a bank

Air space

Garbage – left at the curb for collection

Voice –the sound of your voice

Odours – from your car / luggage


Open fields - anything that can be seen in or across the open fields


  1. Did a governmental agent either (a) physically intrude on a protected area to obtain information: or violate an individual’s reasonable expectation of privacy in a protected area or item?

Two ways this can happen

  1. The agent physically intrudes on a constitutionally protected area in order to obtain information
  2. The agent’s search or seizure of a constitutionally protected area violates an individual’s reasonable expectation of privacy
  3. To meet this standard, individual must show:
  4. an actual or subjective expectation of privacy
  5. the privacy Expected that society recognises as REASONABLE


  1. Did the individual subjected to the search or seizure have “standing” to challenge the government agent’s conduct?

Individual’s privacy invaded not 3rd parties

  1. Always if
  2. They own the premises searched
  3. They reside there

Overnight guests there (to areas overnight guest can be expected to access)


  1. No if
  2. Using someone else’s residence solely for business purpose


  1. If they own the property seized?

ONLY IF have a reasonable expectation of privacy in the Area from which the property was seized.


  1. IF they are passengers in cars?

Not as to search of the automobile



NY – Passengers in cars can challenge the possession of weapons, if possession is attributed to them.



Does the search warrant under which criminal evidence was gathered satisfy 4th Amendment requirement?


  1. Was the warrant issued by a neutral and detached magistrate?

Standard – insufficient neutral or detached if biased or favours prosecution

  1. Is the warrant supported by probable cause or particularity?
  2. Probable cause = fair probability that contraband or evidence of crime will be found in the area searched
  3. Hearsay is admissible for this purpose
  4. Use of informants tips:

Police may rely even if anonymous.

Sufficiency of info – to allow the magistrate to make a common sense practical determination that probable cause exists based on a totality of the circumstances.


NY – Uses stricter Aguilar-Spinelli test in evaluating probable cause.

When applying for a warrant, gov must establish 2 things:

  1. The informant’s basis of knowledge


  1. His reliability or veracity


  1. Particularity

To satisfy search warrant must specify

  1. the place to be searched


  1. the items to be seized.


  1. Does an officer’s “good faith” save a defective warrant?

i.e. apartment 2 doors- cops assumed they lead to same flat- entered wrong person’s flat, seized drugs – ok as we have good faith





Yes on MBE


  1. the affidavit supporting the warrant application lacking in probable cause that no reasonable officer would have relied on it.
  2. the warrant is so facially deficient in particularity that officers could not presume it to be valid.
  3. the affidavit relied upon by magistrate contains knowing or reckless falsehood
  4. the magistrate who issued it is biased in favour of the prosecution.


  1. Was the search warrant properly executed by the police?

2 aspects

  1. Officers Compliance with the warrant’s terms and limitations: allowed to search only those areas & items authorised by the language of the warrant.
  2. Complied with Knock and Announce – police to announce their presence and their purpose before forcibly entering the place to be searched, unless the officer reasonably believes that doing so would be :
    a. futile or
  3. dangerous or
  4. inhibit the investigation




All about reasonable

Is the warrantless search through which criminal evidence was gathered valid under any of the 8 exceptions to the warrant requirement?




  1. Exigent Circumstances


  1. Evanescent Evidence: dissipate or disappear in the time to get a warrant.


  1. Hot Pursuit of Fleeing Felon
  2. Allows police to enter the home of a suspect or 3rd party to search for a fleeing felon
  3. Any evidence discovered in plain view while searching for suspect is admissible.


  1. Emergency Aid exception: Police may enter a residence when there is an objective reasonable basis for believing that a person is in need of emergency aid.


  1. Search Incident to Arrest


  1. Arrest/custodial – must be lawful


  1. Justification
  2. Officers safety AND
  3. The needs to preserve evidence


  1. Timing: search contemporaneous time & place with arrest


  1. Geographic scope: the wingspan (body, clothing, any containers within the arrestee’s immediate control) without regard to the offence.



NY- To search containers – officer must suspect that the arrestee is armed.


  1. Automobile searched incident to a custodial arrest:
    1. Permissible – interior cabin, closed containers NOT trunk.
  2. Secured vs. Unsecured arrestees:

Secured (handcuffed & placed in squad car) – officer search the car only if she reason to believe the car may contain evidence relating to the crime for which the arrest was made.

Unsecured – can search the vehicle



NY- Once the occupant out of the car – police cannot search containers inside the car to look for weapons or evidence.


  1. Consent
  2. Voluntary & intelligent –Police does not have tell that she has the right to refuse.
  3. Scope: all areas a reasonable officer would believe permission to search was granted.
  4. Apparent Authority – still valid under 4th Amendment if officer reasonably believed that the consenting party had actual authority.
  5. Shared Premises
  6. Any resident can consent to common areas
  7. If one party object, that party prevails as to common areas.


  1. Automobile exception
  2. Vehicle’s ready mobility & individual’s lesser expectation of privacy.
  3. Officer need probable cause to believe that contraband or evidence will be found in the car.
  4. Search? Entire vehicle & may open any package/container that may reasonably contain the items
  5. Traffic Stops & auto searches- Officer does not need probable cause to search the car at the time it is pulled over But he need to acquire it before initiating the search (running plate number + acquiring PC later).


  1. Plain View

Seizure of the item if:

  1. lawful access to the place from which item can be plainly seen
  2. lawful access to the item itself AND
  3. Criminality of the item must be immediately apparent.


  1. Inventory Searches
  2. Occur:
  3. Arrestees when they are booked in to jail.
  4. Vehicles when they are impounded.


  1. Are constitutional if:
  2. reasonable in scope
  3. Search complies with those regulations
  4. Search conducted in good faith.


  1. Special Needs

Of law enforcement, gov employers & school officials beyond a general interest in law enforcement.


  1. Random drug testing

Warrantless drug test:

  1. Railroad employees following an impact accident
  2. Custom Agents responsible for drug interdiction
  3. Public schoolchildren – who participate in extracurricular activities.


Note- drug test not permitted where the primary purpose is to gather criminal evidence.


  1. Parolees: Warrantless/suspicionless searches of a parolee & his home are permissible as a condition of parole.


  1. School searches: Warrantless searches of the person and effects permissible to investigate violation of school rules provided it is reasonable and not excessively intrusive.


  1. Border Searches: Citizens/Non-citizens no 4th amendment right at the border, with respect to

routine searches or person and effects.


  1. Terry Stops & Frisks
  2. Terry Stops
  3. Brief detention or seizure investigating suspicious conduct, ANYWHERE.
  4. Seizure for 4th Amendment purpose?

Based on totality of circumstances, a reasonable person would not feel free to leave or to decline an officer’s request to answer Qs.

(Seized? Consider: officer whether brandishes a weapon, his tone/demeanour, he gave right to refuse consent)

  1. Police Pursuit & Seizure
  2. When being pursued an individual is seized ONLY if he submitted to the officers authority by stopping or officer physically restrain him.



NY- Police pursuit is a seizure in & of itself


  1. Traffic stops – 3 principles
  2. Driver & passenger are seized such that either can challenge the legality of the stop
  3. Officer may order both the driver and passenger out of the car.
  4. Dog sniff permissible –provided the sniff does not prolong the stop unreasonably.


  1. Terry Frisks
  2. Pat down of the body & outer clothing for weapons that is justified by an officer’s belief that the suspect is armed and dangerous.
  3. What can you seize in a terry frisk?
  4. Something officer reasonably believes to be a weapon – always can be seized
  5. officer recognizes as contraband without manipulating the object – can be seized as well. (i.e. crack pipe but not LSD, cannot feel LSD)




NY- Officer can seize an item ONLY if it reasonably appears to be a weapon


  1. Car frisks

When conducting traffic stops- if an officer believes suspect is dangerous may search the passenger’s cabin of the suspects’ vehicle, limited to areas in which weapon may be placed or hidden.

  1. Protective Sweeps

In-home arrest police may sweep the residence to look for criminal confederacies of the arrestee whose presence may threaten officer’s safety.


  1. Evidentiary Standard
  2. Terry stops and Frisks?

Reasonable suspicion


  1. This standard in terry stops?

Requires specific & articulable facts that inform an officers belief that criminal activity is present

i .4th Amendment concern solely with its objective reasonableness.


  1. This standard in terry frisks?

Requires specific & articulable facts that suggest that a suspect is armed & dangerous. Justified by a concern for officer’s safety only.


  1. Informants tip satisfy the standard?

Yes- if tip contains predictive information, corroborated by the police, to establish the informant’s reliability.


  1. What evidentiary standards apply in protective sweeps?
  2. Officers may sweep the area immediately adjoining the place of arrest provided there is reasonable suspicion that house harbours a person who poses danger to those on the arrest scene.
  3. to justify a sweep more remote area, must have additional facts sufficient to allow a reasonable prudent officer to conclude that an individual who may threaten officer safety is present in the area swept.




To what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant in court?


  1. Federal exclusionary rule: Evidence, physical/testimonial obtained in violation is inadmissible in court against the individual who’s rights were violated.
  2. 4th Amendment limits on the exclusionary rule:
  3. Case in chief vs. cross-examination:

Excluded from case in chief. However it may be introduced to impeach D’s testimony on cross-examination.

  1. Knock & Announce violation: does not require suppression of evidence that is subsequently


  1. Police error: to trigger exclusionary rule, police conduct must be deliberate, reckless or grossly negligent.
  2. officers “reasonable” mistakes: the exclusionary rule does not apply to evidence erroneously obtained when executing a search warrant, provided mistake was reasonable.
  3. Fruit of the Poisonous Tree
  4. Direct Evidence – evidence gathered pursuant to a search warrant that violates the 4th Amendment.


Derivative Evidence – both physical and testimonial obtained by exploiting prior unconstitutional conduct. Inadmissible in prosecutor’s case in chief


  1. Admitted Tainted Fruit – to nullify fruit of the poisonous tree prosecutors must show break in causal link between original illegality & criminal evidence that is later discovered.

Three doctrines can achieve the requisite break:

  1. Independent Source – there is a source for the discovery & seizure of the evidence that is distinct from the original illegality.
  2. Inevitable discovery – would necessarily have been discovered through lawful means.
  3. Attenuation - where the passage of time and intervening events purge the taint of the original illegality and restore the defendant’s free will.




  1. 4 Requirements for valid wiretap warrant


Mnemonic: Screen Telephone Calls Carefully


Suspected person - name the person who’s conversations are to be overheard.

Time – strictly limited time period

Crime – probable cause that specific crime has been committed.

Conversations – describe with particularity the conversations that can be overheard.


  1. Eavesdropping – no 4th Amendment right, you assume the risk that the other party will not keep your conversations private.




  1. When does an arrest occur?
  2. Police take someone into custody against her will for prosecution or interrogation.
  3. A de facto arrest when police compels someone to come to the police for questioning or finger printing.
  4. Standard of proof? Probable cause
  5. For what offences does the 4th Amendment permit custodial arrest?

All offenses

  1. When do you need an arrest warrant?
  2. No warrant required public place.
  3. Felonies – warrantless arrest when officer have probable cause to believe that the arrestee has committed felony.
  4. Misdemeanors: warrantless arrest for any misdemeanour committed in officer’s presence.
  5. Absent emergency, need warrant to arrest someone in her home.
  6. Arrest someone in 3rd party house, need an arrest warrant & search warrant.

5.Common enterprise theory – In traffic stop- discovered evidence of crime that suggest common unlawful enterprise between the driver & his passengers, officer may arrest any or all of them based on shared dominion and control over the contraband.



  1. A. Three Federal Constitutional challengers:
  2. 14th Amendment - due process clause
  3. 6th Amendment – right to counsel
  4. 5th Amendment – Miranda rights



NY – D can also challenge a confession under NY Indelible right to counsel – derives from the 6th Amendment of the state constitution.


  1. Excluding Confessions under the due process clause:

Involuntariness- means the product of police coercion that overbears the suspects will.


  1. Right to counsel over 6th Amendment:
  2. Express constitutional guarantee.
  3. attaches when D formally charged.
  4. Applies to all critical stages – inc arrangement, probable cause hearing & police interrogation
  5. Offence specific – only to charges filed against you
  6. Incriminating Statement – violates 6th Amendment if they are deliberately elicited & D did not knowingly, intelligently & voluntarily waive his right to have attorney present



NY- Indelible Right to Counsel

  1. greater than 6th Amendment
  2. attaches not only at formal charging, but whenever there is significant judicial activity.
  3. D taken into custody for q on a charge & police are aware that he is represented by counsel on that charge – they may not q him about that charge or any other matter without his attorney present.
  4. if D represented by counsel, waiver of the indelible right to counsel must be in the presence of the attorney.


5TH Amendment Miranda doctrine


  1. Implied right – grounded in self-incrimination clause of the 5th Amendment.
  2. 4 Core Miranda Rights
  3. The right to remain silent
  4. Anything you say can and will be used against you in court of law

iii. The right to an attorney

  1. If you cannot afford one, an attorney will be appointed for you.
  2. When are Miranda warnings necessary?
  3. Custody – viewed objectively, characterized by police domination & coercion such that his freedom of action is significantly limited,
  4. Interrogation – any conduct the police knew or should have known was likely to elicit an incriminating response. Does not apply to statements made spontaneously.
  5. Public safety – if custodial interrogation is prompted by an immediate concern for public safety. Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect.
  6. Communicating Miranda Rights
  7. reasonably conveys Miranda rights
  8. obtains a valid waiver of suspects Miranda right silence & counsel.


  1. Valid Miranda waiver

1.a. Understand knowingly and intelligently

  1. the nature of the rights &
  2. the consequences of abandoning them
  3. voluntarily – if not the product of police coercion.



NY – Parent/child – if police use deception or concealment to keep parent away from child who is interrogated, child’s waiver may be deemed invalid.


  1. Executing the waiver – may be implied by a course of conduct that indicates desire to speak with police interrogators.
  2. after received Miranda rights, he waives it by making an uncoerced statement to the police.
  3. Burden of proof – prosecution by preponderance of evidence.


  1. Invoking Miranda rights
  2. Invoking the right to remain silent
  3. unambiguously
  4. once the right to remain silent invoked- police must honour, must wait a significant time before reinitiating q & must obtain a valid Miranda waiver.
  5. Invoking the right to counsel
  6. once suspect ask for counsel- all interrogation must cease UNLESS initiated by suspect.
  7. request for counsel must be sufficiently clear
  8. 5th Amendment is not offence specific.
  9. Request for counsel expires 14 days after the suspect is released from custody, waiver after this period is valid (as long as it is knowingly, intelligently, voluntarily).


  1. Limitations on evidentiary exclusion as applied to Miranda Violation
  2. are inadmissible in the prosecutors case-in-chief but may be used to impeach the D’S testimony on cross-exam but not the testimony of 3rd party witness.
  3. Failure to give Miranda warning – does not supress the physical fruits, provided the statements are voluntary.


  1. If statement inadmissible due to Miranda violation, subsequent statements admissible made after Miranda waiver, provided non Miranda statement was not obtained through the use of inherently coercion, police tactics, offensive due process.
  2. If testimonial evidence, that should have been excluded, violation of Miranda, improperly admitted at trial, D convicted, does court require to vacate the guilty verdict?


Verdict will stand if gov can prove beyond a reasonable doubt the error was harmless, D would have been convicted without tainted evidence.




  1. Line-ups - identify perpetrator from group
  2. Show-ups – showed one
  3. Photo array – series of photo asked if she can see the perpetrator.


  1. There 2 substantive challenges:
  2. Denial of right to counsel
  3. 5th Amendment –no right to counsel under Miranda Doctrine for pre-trial identifications

2.6th Amendment – exist at line-ups and show-ups



NY – You have the right to have attorney present at a line-up conducted before the filing of formal charges if you are aware that you have counsel and you request that counsel be present.


  1. Violation of due process under 14th Amendment:
    1. Pre-trial identification – violates it when it is so unnecessarily suggestive that it creates a very substantial likelihood of irreparable misidentification.
  2. Making this determination – courts must weight reliability of a suggestive identification against its corrupting affect.
  3. Remedial Considerations
  4. exclusion of witness’s in-court identification.
  5. an in-court identification will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconstitutional line up, show up, photo array.
  6. to make the showing prosecutor can point to:
  7. witness opportunity to view D at the crime scene
  8. the certainty of the witness identification
  9. the specificity of the description given to the police.




  1. They issue indictments
  2. Not public, secret proceedings.
  3. States do not have to have them as part of their charging process.



NY – Indictments must establish all elements of the offence & provide reasonable cause to believe that the accused committed the offense.


Pre-trial detention


  1. Gov need probable cause both to bind a D over for trial & to detain him in jail before trial.
  2. Detention Hearing (to determine probable cause:
  3. Is unnecessary to justify pre-trial detention if:
  4. Grand jury issued indictment
  5. Magistrate issued an arrest warrant
  6. The first appearance
  7. soon after arrest d must be brought before a magistrate who:
  8. advise him of rights
  9. set bail &

iii. appoint counsel if necessary.

  1. Bail Decision –immediately appealable


Trial Rights


  1. Evidentiary disclosure: a prosecutor must disclose to criminal D all material, exculpatory evidence.
  2. Judges – the right to unbiased judge means;
    a. judge has not financial stake in the outcome and
  3. judge has no actual malice towards D
  4. Juries
  5. Fundamental protection – all criminal d’s have the right to a fair and impartial jury
  6. Right to jury trial- Crim D when maximum authorized sentence exceeds 6 months.
  7. In crim trial minimum of 6 jurors.



NY – Requires 12 jurors, D can waive this and proceed to verdict with only 11


  1. Unanimity of jury verdict – only if 6 jurors used, 12 need not be unanimous.



NY – Jury verdicts must be unanimous


  1. Cross –sectional requirement – pool from which the jury drawn represents a cross-section of community.
  2. Peremptory challenges – permits both sides to exclude jurors without stating their reason for doing so, cannot be used to exclude prospective jurors on account of race or gender.



  1. Confronting adverse witnesses: Confrontation clause of the 6th Amendment does not apply where face-to-face confrontation would contravene important public policy concerns.


  1. Right to effective assistance of counsel
  2. Deficiency requirement – made errors so serious that he was not functioning as counsel
  3. Prejudice requirement – but for the deficiency the outcome of trial would have been different.
  4. Unless there is s strong argument that D was not guilty- always deny relief under ineffective counsel.




  1. A valid plea - a judge must establish that it is voluntary & intelligent

2.Plea-taking colloquy –before accepting, judge must conduct a colloquy in open court in which she addresses:

  1. the nature of the charges, inc required elements of the charges
  2. the consequences of the plea
  3. Withdrawing the plea – D may withdraw after sentencing only if:
  4. the plea is involuntary
  5. there is jurisdictional defect
  6. D prevails on a claim of ineffective counsel claim or
  7. the prosecutor fails to fulfil his or her part of the bargain.




  1. 8th Amendment standard - prohibition against cruel and unusual punishment disallows criminal penalties that are grossly disproportionate to the seriousness of the offence committed.


  1. 8th Amendment and the death penalty
  2. would violate 8th amendment if it created an automatic category for the imposition of the death penalty.
  3. Evidentiary requirement – in deciding whether to impose the death penalty, jurors must be allowed to consider all potential mitigating evidence.
  4. Categorical exclusions –
  5. Ds with mental retardation
  6. Ds who are presently insane
  7. Ds who were under 18 at the time relevant offence occurred.



  1. When does it attach?
  2. Jury trial – when the jury is sworn
  3. Bench trial- when 1st witness is sworn.
  4. Guilty plea – when the court accepts D’s plea unconditionally


  1. Does not apply to civil proceeding


  1. The same offence requirement
  2. Federal Rule – not double jeopardy if each offence contains an element the other does not.


NY – Uses transaction test which requires that D be charged with all offences arising from any single transaction unless:

  1. the offences have substantially different elements
  2. each offences contains an element not in the other & prevents different harm
  3. one is for criminal possession & the other use.
  4. each offence involved harm to a different victim.


  1. Greater and lesser-included offences – Prosecution for greater offence precludes later prosecution for lesser-included offense & vice versa.


  1. The same sovereign requirement - double jeopardy bars retrial by the same sovereign ONLY.
  2. State & federal gov = different
  3. Different states = different
  4. States and municipalities within them = same


  1. Four exceptions to double jeopardy that permit retrial
  2. Hung jury
  3. a mistrial for manifest necessity
  4. a successful appeal
  5. a breach of the plea agreement by D


5th Amendment Privilege against compelled testimony (taking the 5th)


  1. Anyone can take
  2. When? In any proceeding in which an individual testifies under oath.



NY- Privilege cannot be asserted in a grand jury proceeding


  1. Privilege must be asserted at the 1st opportunity or it is forever waived.
  2. Scope?
  3. Testimonial privilege so does not apply to states use of our bodies.
  4. It also disallows negative prosecutorial comment on a D’s
  5. decision not to testify at his trial
  6. the invocation of his right to silence or counsel.
  7. Three ways to eliminate the privilege
  8. Grant of immunity – bars the gov from using your testimony or anything derived from it to convict you.


NY- Transactional Immunity – it shields witnesses from prosecution for any transaction they testified about their immunized testimony.


Note – individual can be convicted based on evidence obtained prior to the grant of immunity


  1. Taking the stand – D waives the ability to take the 5th.
  2. Statute of limitations – privilege unavailable if SOL run out on the underlying crime, therefore witness testimony could not expose him to criminal prosecution.