4.6.11 Criminal & Family Law

CrR 1.1
Local rules actually supersede state rules.
Cultivating relationships with court clerks, etc., can be invaluable.
Constitution always prevails over court rules.

CrR 8.1 and 8.2- criminal crosses over in to CR 6 and CR 7(b) govern.

Motions
-Request that courts issue an order.
-Issue on 3.5 hearing is always a confession.
-Issue on 3.6 hearing may be physical evidence or statements by those other than the accused.

Search without Warrant
-WA Const Art. 1 Sec 7- search done without warrant is invalid, unless one of the rare exceptions is applied.
-Search incident to arrest-

Basis for Police Action Without Warrant:
Probable Cause- Reasonable belief, based on facts, that a crime occurred and suspect has been pinpointed. Gives officer the right to arrest and further search.

Reasonable Suspicion- Specific articulable facts (more than a hunch) that criminality is afoot. (More general, no suspect.) Gives officer the right to investigate.

Terry v. Ohio - "a Terry stop" when officer can identify specific facts that lead to reasonable suspicion, gives right to limited investigative stop to flesh out whether or not there is probable cause.

Motions
-Can be used to create a negotiating position
-Can be used to develop evidence- motion to compel. Motion to compel production of evidence based on CrR 4.7.
-Also consider what it is that you are trying to say to the court. Purpose. Impression.
-Consider how likely the court is to actually read your motion. When writing to busy court make important information easy to find. Always use bold face on subheadings.

Analysis of Search- "Can the cop do what he did?"
Point by point, what alerted officer? What did the officer do and was it justifiable? There must be a justifiable reason for every officer action. What officer had, knew, and scope based facts at that time. Was every new act justifiable based what was known or discovered based on the previous point? Then move to next point and analyze again.

EX Weaving in lane. Is it illegal? No. Officer turns on lights. Driver is seized. But if articulable fact is explained away (driver is looking for address, etc.), then fact ceases to be an articulable fact in support of reasonable suspicion. DUI squad cops all have video cameras in their cars. Always compel the video if not produced.

Consent
A person can consent to waive their constitutional right.
"Do you have any drugs or weapons in the car?" Is that question justifiable based on a speeding car? No. You can ignore the question and the officer should move on. But if you answer they can act on that. Your statement adds to the facts upon which he is acting.

Was an arrest made?
How do you know if you are under arrest? Handcuffs? Not always. Can be a temporary detention for officer safety.
Miranda=Arrest

State v. Stroud
SIA Search Incident to Arrest -Exception
1. Arrest
2. Possible weapons -must be within reach
3. Possibility of evidence being destroyed -must be within reach
4. Reasonable time
Trunk (or other locked container) always off limits in this case, never within reach.

Plain View Doctrine
If officer sees something illegal they have the right to investigate.

Is a search permitted with an arrest?
Trunk is generally off limits. Even if search dog alerts on trunk, officer must get warrant to search.

Exigent circumstances- those that warrant action that does not confirm to procedure.

Analysis of Homework Assignment
1. Identify Rule - CrR 3.2
2. Significant Release Factors
- No criminal record
- Signed a lease
- Law school student
- Married with a child
3. Order those factors - Strong to Weak
4. Diffuse worst facts
"My client is at a distinct disadvantage because she has recently moved to town."

-It is important not to overstate the facts. The judge will learn more about the case eventually.
-Miranda protects against self-incrimination. Miranda is NOT a requirement for arrest.
-Police CAN lie to you.
-How to plead is always the client's decision.

CrR 3.2 Intro "probable cause"
If there are insufficient facts to believe that a crime occurred, or insufficient facts to believe that this person committed that crime, there is no probable cause.

FOR NEXT WEEK- Memo to Attorney
Using alternative facts in handout, write memo to the attorney applying the analysis that we discussed in class today. Find and read the case in the handout. Analyze for attorney whether motion to suppress is warranted using cases cited in handout. Logical flow and organization. Use headers and subheaders. Apply facts to rules and come to conclusion. "We should/not file a motion to suppress because..." 2 pages max. Don't try to address every issue, but do fully analyze all issues addressed.