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Criminal Procedure > Consolidated Crim > Flashcards

Consolidated Crim Flashcards

1
Q

Current Test for Incorporation (case)

A

whether the right is asserted is fundamental to fairness of the Anglo/American justice (Duncan v. Illinois 1968)

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2
Q

Direct Review Test (case)

A

New constitutional rules are applied to cases pending direct review aka decisions that are not final review of habeas corpus get benefit of retroactivity (Teague v. Lane 1988)

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3
Q

Do Habeas Corpus/Collateral Attack get benefit of retroactivity? (case)

A

Do not get benefit of retroactivity because habeas proceedings are to ensure that the state properly applied constitutional law as the law existed at the time (Desist v. U.S.)

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4
Q

Exceptions where the new constitutional rule is applied on collateral attack

A

(1) Watershed, procedural: New rules is so fundamental and implicit in the concept of ordered liberty – eliminated in Vannoy

(2) Substantive changes new rule that says initial conduct shouldn’t have been tried in the first place (Vannoy)

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5
Q

Who are the people under the 4th amendment? (case)

A

United States v. Verdugo-Urquidez (1990): 4th amendment applies to people who belong to a national community or have a sufficient connection with the U.S. be a part of that community

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6
Q

What is a search?

A

Occurs when there was been a violation of Katz reasonable expectation test or Jones physical intrusion into a C protected

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7
Q

What is the test for a search under Katz?

A

(1) offends a citizen’s subjective manifestation of a privacy interest and
(2) that privacy interest is deemed by society to be reasonable

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8
Q

How is the second prong of Katz viewed?

A

Second prong can be (1) empirical (is it possible for someone to have access to this information?) or (2) normative (does the public ordinarily have access to this information?)

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9
Q

What is the test for Jones?

A

Physical intrusion (traditional rule of trespass) into a constitutionally-protected area (person, house, paper, or effects) by the government for the purpose of obtaining information

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10
Q

What does Jardines adds?

A

Curtilage is protected

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11
Q

What is open fields doctrine?

A

open fields are not protected by the 4th amendment

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12
Q

How do you manifest subjective privacy?

A

U.S. v. Bellina (1981): officer used step ladder to peer in window, but defendant made no attempt to cover window therefore did not sufficiently manifest a subjective privacy

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13
Q

What are factors for open field?

A

Dunn
(1) Proximity of the area claimed to be curtilage to the home
(2) Whether the area is included within an enclosure surrounding the home
(3) Nature of use to which the area is put
(4) The steps taken by resident to protect the area from observation

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14
Q

What case establishes open fields?

A

Oliver v. U.S. (1984): Not a search. Only curtilage warrants the 4th Amendment protections granted to home (“constitutionally-protected area”)

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15
Q

What is third party doctrine?

A

Third-Party Doctrine: If a third-party knows or could know, the information cannot reasonably be expected to remain private. (extension of open fields)

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16
Q

Is talking to someone on phone in mall 3rd party doctrine search? (case)

A

White – No

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17
Q

Is looking at bank records 3rd party doctrine search? (case)

A

Miller – No

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18
Q

Is looking at pen registers 3rd party doctrine search? (case)

A

Smith v. Maryland – No

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19
Q

Is looking through gap in bathroom stall 3rd party doctrine search? (case)

A

White – No

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20
Q

Is electronic tracking movement 3rd party doctrine? (case)

A

Knotts & Karo – No

If the public can see you moving around, there is not expectation of privacy.

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21
Q

Is tracking of cell phone data a 3rd party doctrine search? (case)

A

Carpenter – Yes

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22
Q

Is aerial surveillance a search? ( 3 cases)

A

Aerial observation 1000 ft above fenced in yard (empirical analysis) (Ciraolo)

Helicopter above partially obscured greenhouse (Dow Chemical Co)

Taking aerial photos above industrial plant (Florida v. Riley)

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23
Q

Is canine sniff of outside of luggage a search? (case)

A

Place – No

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24
Q

Is drug testing a substance in the field a search? (case)

A

Jacobson – No

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25
Q

What does Kyollo stand for? (devices)

A

Where the police use a device that is (1) not in general public use to explore details of the home (2) that would previously have been unknowable without physical intrusion, the surveillance is a search is presumptively unreasonable without a warrant. (Kyllo, search when using a thermal imaging device)

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26
Q

What is a seizure? (person and things)

A

When government agents materially interfere with a person’s interest in being free from physical disruption and inconvenience.

Seizure of houses, papers and effect occur when government agents exercise dominion and control over property or otherwise materially interfere with possessory interests.

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27
Q

What is the test for seizure?

A

When a reasonable person would not feel free to leave or terminate the encounter under the totality of the circumstances (Mendenhall)

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28
Q

What is Bostick?

A

Whether reasonable person would feel free to terminate encounter (on bus)

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29
Q

What is Drayton?

A

Officers do not need to explicitly advise bus passengers of their “right to leave” during bus sweeps; reasonable person knows that they can terminate the encounter

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30
Q

What is Hodari D?

A

Physical force or non-physical show of authority such that suspect submits

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31
Q

What is Torres?

A

The use of physical force with intent to restrain is a seizure even if

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32
Q

Can police officers just ask you questions? (case)

A

Law enforcement officers do not violate the 4th amendment by merely approaching an individual in a public place and asking if he is willing to answer questions (FL v. Royer)

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33
Q

What is the justification for a warrant?

A

Police are involved in the competitive enterprise of figuring out crime. So, warrant issued from a neutral magistrate serves as check against unfettered police discretion (Johnson)

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34
Q

What are the requirements of a warrant?

A

(1) Probable Clause: fair probability of criminal activity based on facts and reasonable inferences
(2) Oath/Affirmation: ensures probable cause shown by persons willing to swear to the truth statements
(3) Particularity: must be reasonable

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35
Q

What is particularity requirement?

A

is the place to be searched, person, or thing described with sufficient particularity? Reasonableness standard.

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36
Q

Is a catchall phrase okay for particularity?

A

Catch-all phrase OKAY if limited by language of the warrant to items related to the specific crime (Anderson)

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37
Q

What can police seize?

A

Police can seize mere evidence of a crime that is not just a fruit, instrumentality, or contrabrand (Warden)

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38
Q

Can warrants be given to search 3rd party property?

A

Warrants can be issued to search any property, even if 3rd party property as long as PC to believe fruits, instrumentalities, evidence will be found (Zurcher v. Stanford Daily)

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39
Q

Who gives a warrant?

A

Neutral & Detached Magistrates (Coolidge)

Don’t need to be a lawyer (Shadwick v. City of Tampa)

Cannot rubber stamp all warrants (Decker)

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40
Q

What is warrant requirement timeline?

A

Entitled to promote assessment of probable cause (Pugh)

Promt is 48 hours, but this is not dispositive (McLaughlin)

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41
Q

What case establishes knock and announce?

A

RULE: When executing warrant, police officers must knock-and-announce their identity and presence prior to forcing entry (Wilson v. Arkansas)

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42
Q

What is reasonable amount of time to wait for knock and announce?

A

12 seconds was refusal (Knapp)

3 seconds too fast (Moore)

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43
Q

What are exceptions knock and announce?

A

“No breaking” → door is already open, can just go in

Exigent circumstances: Police must have reasonable suspicion that knock & announce would be dangerous/futile or would inhibit effective investigation by allowing destruction of evidence (Richards v. Wisc.)

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44
Q

What is probable cause?

A

A fair probability that contraband or evidence of a crime will be found in a particular

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45
Q

What is the test for informants for probable cause?

Can anonymous tips be reliable for PC?

A

Totality of Circumstances Test → Judges can base their decisions on all available evidence (Gates)
- The nature of the information
- Whether there has been an opportunity for the police to see or hear the matter reported (independent verification)
- The veracity and basis of knowledge of the informant

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46
Q

What is Aquillar Spinelli test?

A
  1. Reliable: Why is the informant reliable?
    - Indicia of Reliability: (a) Presumption of reliability for statements against your own interest; or (b) track record of being a reliable person
    Problem: People that generally have first-hand knowledge of crime are not credible people (e.g. history of criminal behavior).
  2. Credible: Why is the information credible?
    Indicia of Reliability: (a) Direct statements of personal knowledge; or (b) wealth of detail that creates an inference of personal knowledge.
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47
Q

Can police be mistaken on probable cause to arrest someone?

A

Police can be mistaken in believe that that person arrested commited the crime (Valez)

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48
Q

What is Pringle?

A

If multiple people in a car & something criminal found, police can infer a common enterprise = PC to arrest all of the suspects in the car (Pringle)

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49
Q

Can dog sniffs create PC? (case)

A

Drug dog sniffs can create PC (Florida v. Harris)

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50
Q

When can warrentless arrest happen?

A

Felony (Watson): probable cause & have a legal right to be in that place

Misdemeanor in view of officer

Misdemeanor and police have probable cause that suspect will not be apprehended later, or presents a danger

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51
Q

What is bright line rule for custodial arrests?

A

Custodial arrest is always reasonable if officer has probable cause of criminal violation - any crime (even if punishment has no jail time) (Atwater v. City of Lago Vista 2001)

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52
Q

What is case/factors for deadly force?

A

Only Appropriate If (Tennessee v. Garner)
(1) Necessary to prevent escape, AND
(2) Probable cause person will kill or seriously hurt officer or others.

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53
Q

What case applies deadly force?

A

Law enforcement officials properly rammed fleeing motorist in public-endangering flight. (Scott v. Harris)

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54
Q

What is the case/factors for excessive force?

A

Graham Factors for Excessive Force: (SIRF)
1. Severity of crime
2. Immediate threat
3. Resisting Arrest; or
4. Attempting to Flee.

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55
Q

What case applies Graham Factors?

A

Officers used permissible force by applying pain compliance techniques to arrest demonstrators (Forrester v. San Diego)

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56
Q

Do arrests in home require a warrant?

A

Arrest in home requires an arrest warrant, absent exigent circumstances (Payton v. New York)

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57
Q

Is hallway included in the home?

A

Hallway is included in the home (Holland)

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58
Q

Do you need arrest or search warrant to arrest someone in the home of a third party? (Case)?

A

Need search warrant to arrest resident in house of third-party (Steagald)

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59
Q

If suspect is a co-resident do you need an arrest or search warrant? (case)

A

If suspect is co-resident of third party, then Payton applies and not Steagald allows both arrest of subject of arrest warrant AND use of evidence found against the third party (Literal)

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60
Q

What is the significance of Terry?

A

Establishes lower standard (reasonable suspicion) for when Government can seize and search. Court invokes reasonableness clause over the warrant clause as governing standard of Fourth Amendment.

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61
Q

What is standard for stop? for frisk?

What are you balancing?

A

To Stop→Reasonable suspicion that criminal activity is afoot. (Terry)

To Frisk→Reasonable suspicion that the suspect is armed and dangerous. (Terry)

Terry Reasonable Inquiry: Balance government interests vs. individual privacy interests.

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62
Q

When does a Terry stop turn into an arrest? (case)

A

A Terry stop can turn into an arrest (not clear at what point)

Rule: when a stop ends depends on the purpose of the Terry stop (Rodriquez)

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63
Q

What is RS based on for Terry?

A

Based on the totality of the circumstances, particularized, and can be based on common sense inferences (Terry)

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64
Q

Can RS come from informants? (case)

A

RS can come from officer’s observation or a known informant (Adams v Williams)

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65
Q

Can anon tips be used for RS? (case)

A

Anonymous tip that is “significantly corroborated” provides RS (lower standard than PC) (Alabama v. White)

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66
Q

When was anon tip valid for RS and invalid? (cases)

A

Invalid
An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a stop and frisk of that person (FL v. J.L.)

Valid
An anonymous tip from person who actually witnessed the alleged criminal conduct (+ some more) establishes RS (Navarette)

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67
Q

What is Wardlow?

A

Flight + high crime area = RS

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68
Q

Can reasonable mistakes of law give rise to RS?

A

Reasonable mistakes of law can give rise to RS (Henien)

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69
Q

Can race give rise to RS? (majority & minority view) (case)

A

Majority Rule: race can be a factor in reasonable suspicion (Weaver, Ramos)

Minority Rule: race cannot be a factor in reasonable suspicion (that’s unAmerican!) (Uber)

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70
Q

What are the 4 bright line rules under Terry?

A

Automatic right to order someone out of the car Terry (Mimms)
Mimms includes ordering passengers out of the car (Ark. v. Wilson)

Officers can patdown someone they think is armed and dangerous during a traffic stop (Ariz v. Johnson)
- & can search car/general grab area (Michigan v. Long)

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71
Q

Do you need RS or PC for searching a parolees home? (case)

A

No more than RS needed to search probationer’s home → balance test (Knight)

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72
Q

Do you need RS or PC for search a parolee? (case)

A

Suspicionless (No warrant, no PC, no RS) searches of parolees are reasonable → balance test (Samson)

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73
Q

Can frisk be used to search for evidence?

A

Frisks cannot be used to search for evidence, only for protection purposes; stop when you realize it’s not a weapon (MN v. Dickerson)

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74
Q

What is purpose of search incident arrest?

A

Purpose: (1) destruction of evidence and (2) officer safety

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75
Q

What is bright line rule search incident arrest? (case)

A

BRIGHT-LINE RULE: If probable cause to arrest, officer can perform full search of the arrestee for weapons or evidence of crime without further suspicion (Robinson)

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76
Q

Can you search incident arrest for minor crime?

A

Search can be pursuant to a custodial arrest for a minor offense (Atwater)

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77
Q

Can grab area be searched in a search incident arrest?

A

Grab Area: Incident to a lawful arrest, a warrantless search of the area in possession and immediate control of the person under arrest is permissible under the Fourth Amendment (Chimel v. California)

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78
Q

Can containers be searched in search incident arrest? (case)

A

Containers on a Person: Can perform full search of arrestee, including any containers on a person (Robinson)

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79
Q

Can cell phone be searched in search incident arrest? (case)

If you can’t, when can you?

A

No Cell Phones or Electronics: No warrantless search of contents of a cell phone seized incident to an arrest absent exigent circumstances (Riley v. California)

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80
Q

What is the rule for automobiles in search incident to arrest? (case)

A

RULE: Grab area at time of search (arrestee must be unsecured) OR if there is reason to believe that there is evidence in the passenger compartment of the crime for which he is being arrested (Gant)

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81
Q

What role is Gant clarifying?

A

Historically, Belton/Thornton Rule said automatic right → everything in the passenger compartment could be searched. But, Gant clarified that this was not an automatic right

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82
Q

Is breathalyzer and blood tests valid under search incident to arrest in car?

A

Scope: Government can require breathalyzer test after a lawful arrest for drunk driving but not blood tests (Birchfield)

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83
Q

Are protective sweeps valid in search incident to arrest?

A

Permits a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. Must be based on reasonable articulable suspicion and properly limited in scope (Maryland v. Buie)

84
Q

Are protective sweeps as broad as search incident to arrest?

A

Not as broad as search incident to arrest because there must be RAS that there are dangerous individuals on the premises who pose a threat to officers or public safety

85
Q

Are pre textual stops valid and if so why?

A

Any traffic offense committed by a driver is a legitimate legal basis for a traffic stop, and a differing true motive to detain the person does not negate the stop’s validity (Whren)

OFFICER SUBJECTIVE INTENTION IRRELEVANT

86
Q

What is plain view? (case)

A

Permits an officer to make a warrantless seizure of incriminating items that they come upon while otherwise engaged in a lawful arrest, entry, or search (NH v. Coolidge)

87
Q

What is plain view test?

A

(1) Item must have incriminated character that is immediately apparent (as soon as officer looks, she must know it’s incriminating)

(2) Officer has to be lawfully located in a place where she can gain access to the object (lawful right of access)

88
Q

Is inadvertence required for plain view?

A

Inadvertance is not required → police can seize an item in plain view w/o a warrant, even if finding the item was not inadvertent, as long as police have legal right to be where item is found (Horton v. CA)

89
Q

Does PV apply to searches and seizures?

A

Plain view applies to seizures and not searches (Arizona v. Hicks)

90
Q

What is plain touch doctrine?

A

Permits seizure of evidence discovered through the sense of touch in the course of a lawful search is allowed under plain touch doctrine (Minnesota v. Dickerson)

91
Q

What is bright line rule for automobile exception?

A

BRIGHT LINE RULE: Police may search an automobile without a warrant, so long as they have probable cause to believe it contains evidence of a criminal activity (Carrol)

92
Q

What is the justification for Carroll doctrine?

A

Justification: Car’s mobility (Carroll) and diminished expectation of privacy (Carney)

93
Q

What is standard for search at station? (case)

Automobile Exception

A

A warrantless search of a car made at a police station is constitutional so long as there is probable cause to believe that the car contains evidence of criminal activity (chambers v. maroney)

94
Q

What is standard for search for movable containers? (case)

Automobile Exception

A

When the police have probable cause that a container has evidence of a crime, they can seize the container but must get a warrant to search the contents. Can seize, but not search w/o warrant (Chadwick)

95
Q

What is standard for search for movable containers in the car? (case)

Automobile Exception

A

Overrules Sanders and Ross. The Fourth Amendment permits warrantless searches of containers found in automobiles provided the police have probable cause that the container contains evidence of criminal activity. California v. Acevedo

96
Q

What is test for exigent circumstances?

A
  1. The officer has probable cause to search/seize; and
  2. The officer has probable cause to believe that the persons or items to be searched or seized are at risk of flight; present a danger to the police or public; or evidence will be destroyed.
97
Q

Is there a bright line rule for exigent circumstances?

A

Involves a totality of the circumstances analysis.

98
Q

Can police create exigent circumstances?

A

Warrantless searches conducted in exigent circumstances do not violate 4A so long as police did not create the exigency by violating or threatening to violate the Fourth Amendment (Kentucky v. King)

99
Q

What is justification #1 for exigent circumstances and the rule/rationale?

A

Hot Pursuit: No arrest warrant needed when police are pursuing a fleeing suspect, but only if the suspect knows he is being pursued and there is no time for warrant

Rationale: unrealistic to expect police officers to stop in the middle of a chase in order to apply for a warrant & suspect knows being pursued so may escape, destroy evidence, or create a safety threat

100
Q

What two cases justify hot pursuit rationale?

A

Suspect has to know that he is being pursued by the police (Welsh)

A suspect cannot defeat an arrest which has been set in motion in a public place by escaping to a private place (Santana)

101
Q

What is justification #2 for exigent circumstances?

A

Justification #2 → Police and Public Safety

Regardless of intent, police may enter a home without a warrant if there is an objectively reasonable basis for believing an occupant is injured or in immediate danger (Brigham City v. Stuart)

102
Q

What is justification #3 for exigent circumstances?

A

Justification #3 → Risk of Destruction of Evidence
- If probable cause that evidence will be destroyed in the time it takes to obtain a warrant, then the warrant requirement is excused

103
Q

What are the doorman factors for destruction of evidence?

A

Dorman Factors to determine if evidence will be destroyed:
(1) Gravity or violent nature of the offense with which suspect is charged
(2) Whether suspect is reasonably believed to be armed
(3) Clear showing of probable cause
(4) Strong reason to believe that the suspect is in the premises being entered
(5) A likelihood that the suspect will escape if not swiftly apprehended
(6) Peaceful circumstances of the entry

104
Q

What is special needs test?

A
  1. Is there a special need outside of traditional law enforcement purposes?
  2. Is the manner of addressing the special need reasonable?
    - Terry Balancing Test → Individual privacy interests vs. Government interests.
105
Q

What is rule for administrative searches?

What is the exception?

A

Rule: a warrant is required for administrative searches of a home or business, but does not have to be based on probable cause - but instead upon a finding that a search is incompliance with a reasonable administrative scheme

Exception: pervasively regulated industry (do not need a warrant or PC

106
Q

Can you search home under admin search? (case)

Does it apply to non-residential places?

A

Warrant is required, but may be based on either probable cause OR compliance with a reasonable administrative scheme, and inspection fits within program (Camara)

Also applies to non-residential commercial structures (See v. City of Seattle)

107
Q

What is the Burger test?

A

Reasonableness Analysis: Three criteria must be met:
1. Substantial government interest that informs the regulatory scheme
2. Warrantless inspections must be necessary to further the regulatory scheme.
3. The statute’s inspection program must provide a constitutionally adequate substitute for a warrant.
- The statute must be sufficiently comprehensive in defining inspector discretion
- The statute must be carefully limited in time, place, and scope

108
Q

What is a pervasively regulated business and what is not?

A

Closely-Regulated Industries: Firearms, liquor, mining, and running an automobile junkyard (Burger)

Not Closely-Regulated: Hotel industry (City of Los Angeles v. Patel)

109
Q

What is special needs for children? (case)

Do you need RS or PC?

A

Reasonable suspicion needed to search schoolchildren.

This standard is sufficient to protect the student’s diminished expectation of privacy in the school environment, while permitting the government the proper degree of leeway in maintaining standards of safe school learning environment (New York v. TLO)

110
Q

What is drug testing special need?

A

Showing the targeted group has a propensity for drug use is helpful for the judicial determination, but not dispositive. The sole purpose cannot simply be to incriminate people—must serve broader safety purpose.

Special Need: Safety
Reasonableness Inquiry: State interest outweighs minor intrusion of urine test.

111
Q

What are permissible groups to drug test under special needs? (3)

A

Railroad employees who were in accidents and had documented drug problem (Skinner)

Customs Services employees involved in drug interdiction and who carry firearms (Von Raab)

All kids in extracurriculars (including student athletes) subject to warrantless drug tests
- Schoolchildren involved in athletics (Vernonia) and extracurriculars (Earls)

112
Q

What are not permissible groups to drug test under special needs?

A

Political candidates (Chandler v. Miller)

Pregnant mothers suspected of cocaine use (Ferguson)

Customs services employees handling classified documents (Von Raab)

113
Q

Is DNA testing a special need? (rule/case)

A

Warrantless testing of a cheek swab of a detainee pursuant to an arrest for a serious offense supported by probable cause is permissible. (Maryland v. King – Scalia dissent: fingerprints ID; DNA solves crime)
- Special Need: Identification – legitimate police booking measure (like fingerprinting).
- Reasonableness Inquiry: State interest in identifying detainees outweighs minor intrusion.

114
Q

Is searching a detainee a special need? (case)

What is the special need?

A

Court upheld the reasonableness of a policy of strip-searching jail detainees, even when those detainees are arrested on minor offenses (Florence)

Special Need: Necessary to detect contraband, assure contagious infections are not introduced to the prison population, discover gang tattoos that indicate need for special housing, and to discover weapons.

115
Q

What is standard and rule for roadblocks and checkpoints under special needs? (case)

A

Standard: Stop must be based on neutral, articulable standard (e.g. “every third car”)

Suspicionless checkpoints are permissible if it serves primarily a non-law enforcement purpose based on balancing state interests and individual privacy interests (City of Indianapolis v. Edmond)

116
Q

What are examples of permissible roadblocks/checkpoints under special needs? (2 cases)

A

Permanent checkpoint at border to regulate traffic of undocumented individuals (Martinez-Fuerte)

DUI checks (Sitz)

117
Q

What are examples of impermissible roadblocks/checkpoints under special needs? (2 cases)

A

Ad hoc stop to check license and registration (Prouse)

Sole purpose of interdicting drugs (Edmond) – however, drug interdiction is permissible if it’s a secondary purpose.

118
Q

What makes a good checkpoint?

A
  1. Limited police discretion
  2. Limited length of stop
    3 .Permanent
  3. All drivers alerted
  4. Minimally intrusive.
119
Q

What are inventory searches under special needs?

What is the special need? (case)

A

Warrantless and suspicionless searches permissible of impounded vehicle

Special Need: Part of police community caretaking function (Cady v. Dombrowski)

120
Q

What is justification for inventory searches under special needs? (case)

A

Justifications: (South Dakota v. Opperman)
(1) Protect police against false claims of lost or stolen property
(2) Prevent destruction of property while in police custody
(3) Protect police and public from dangerous items

121
Q

What are two permissible inventory searches?

A

Search of car towed to private garage when officer looking for service revolver (Cady v. Dombrowski)

Search of car impounded for parking violation (Opperman)

122
Q

Are border searches a special need and what is the standard?

A

Warrantless, suspicionless routine border searches permissible. Non-routine border searches necessitate reasonable suspicion.

123
Q

What are routine border searches? (2 cases)

A

Searching car carefully
Dog-sniffs
Hole-drilled in truck, gas tanks (Flores-Montano)
Going through customs and pat-down and lifting up of shirt
International Mail (Ramsey)

124
Q

What are non routine border searches?

A

Looking into body cavities
X-ray or strip search (Montoya de Hernandez)
Taking off artificial leg
Holding for extended periods of time (not a routine intrusion)

125
Q

What is the consent exception to the warrant clause and must it be voluntary (who bears the burden)? (case)

A

Search based on consent is reasonable without warrant or suspicion
-Must be voluntary, burden on the Government to prove that consent was voluntarily and freely given. (Bumper)

126
Q

What is test for consent exception?

A

TEST: Whether consent was voluntary under the Totality of Circumstances (Bustamonte)

127
Q

What is totality analysis for consent? (case)

A

Six Factors for Totality Analysis (Gonzales-Basulto 5th Cir.)
1. Voluntariness of defendant’s custodial status
2. Presence of coercive police procedures
- Note: Courts disagree on when officer threat is coercive enough to render consent involuntary
3. Extent of the defendant’s cooperation with the police
4. Defendant’s awareness of his right to refuse consent
- Note: Exercising right to refuse cannot be considered evidence of wrongdoing (Prescott 9th Cir.)
5. Defendant’s education and intelligence
6. Defendant’s belief that no evidence will be found

128
Q

Under third party consent, can co-owner consent for both people? (case)

A

Co-owner may consent in absence of the other owner’s presence (Frazier)

129
Q

Under third party consent, if someone has actual authority can they consent? (case)

A

Actual Authority: Third party’s ability to consent rests on mutual use of property by persons having joint access or control. Parties have assumed the risk that other might permit inspection (Matlock)

130
Q

Under third party consent, if someone has apparent authority can they consent? (case)

A

Apparent Authority: If police reasonably believe third party has authority over property, search is still permissible (Illinois v. Rodriguez)

131
Q

Under third party consent, what happens if third party says it is okay and the person refuses? (case)

A

Refusal: even though one occupant consents, a physically present co-occupants’ stated refusal to permit entry prevails, rendering warrantless search invalid and unreasonable as TO HIM (Randolph)

132
Q

What is exclusionary rule? (case)

A

Evidence obtained in violation of Fourth Amendment must be excluded (Weeks)

133
Q

What are two themes of exclusionary rule?

A

(1) Exclusionary rule is the only effective means of protecting Fourth Amendment rights

(2) Preserving judicial integrity requires that the courts sanction illegal searches by admitting the fruits of illegality into evidence

134
Q

How was exclusionary rule incorporated and what is silver platter doctrine?

A

Exclusionary Rule incorporated against the States (Mapp v. Ohio)

SILVER PLATTER DOCTRINE ISSUE: federal officials would often allow state officers to obtain evidence illegally and then serve it to the federal officers on a “silver platter” (abolished in Elkins)

135
Q

What is balancing test for exclusionary rule?

A

Balancing Test: No exclusion if deterrent effect on police misconduct is outweighed by social costs of excluding probative evidence

136
Q

What is exception #1 to exclusionary rule? (case)

A

GOOD FAITH

Exception: Evidence obtained in good faith, reasonable reliance on warrant issued by a judge on probable cause is not subject to the Fourth Amendment’s exclusionary rule, even if the warrant is later deemed defective. (Leon)

137
Q

For good faith exception to exclusionary rule? What is the scope for the following:
- legislative acts
- clerical errors
- law enforcement clerical errors

A

Evidence okay from search authorized by statute later found to be unconstitutional (Krull)

Evidence okay seized per warrant based on clerical mistakes by court personnel (Evans)

Evidence okay seized incident to unlawful arrest based on negligent police mistake (Herring) – not okay if reckless

138
Q

What is exception #2 of exclusionary rule?

A

STANDING

New Standing Test: (Rakas v. Illinois)
Whether someone has standing depends on:
1. Whether there was a subjective expectation of privacy, and
2. Whether that expectation is reasonable

Rakas did not have reasonable expectation of privacy as passenger in someone else’s car—no standing to try to exclude evidence

139
Q

What is exception #3 of exclusionary rule?

What is attenuation?

A

Causation & Attenuation

Attenuation Doctrine: Evaluates the causal link between the government’s unlawful act and the discovery of evidence which often has nothing to do with the defendant’s actions

140
Q

When does exclusionary rule apply?

A

Exclusionary Rule only applies where there is a substantial causal link between the illegal activity and the evidence (fruit of the poisonous tree), offered at trial.

Deterrence is unjustified without that link

141
Q

What is exception to the exception of #3 of exclusionary rule? (2 case)

A

Exception: If evidence is obtained by a legal secondary means after the initial illegal search and seizure and is sufficiently attenuated to purge the taint of the illegal action, it can be admissible (Wong Sun)

“Independent act of free will” to purge the taint. (Brown v. Illinois)

142
Q

What are the three factors for the exception of the exception #3 of exclusionary rule? (case) (TIP)

A

Three Factors: (Brown v. Illinois)
1. Temporal proximity between unconstitutional conduct and the discovery of evidence;
2. Intervening circumstances; and
3. Purpose and flagrancy of official misconduct

143
Q

What breaks chain of causation? (Utah v. Streiff)

A

Unconstitutional detention leading to seizure of evidence is okay when officer discovers a valid, preexisting and untainted arrest warrant; warrant attenuates the connection between unconstitutional stop and evidence seized incident to lawful arrest, and evidence is admissible (Utah v. Strieff – applying Brown factors)

144
Q

Does knock and announce break the chain of causation for attenuation requirement? (case)

A

Violation of knock-and-announce requirement does not justify exclusion of evidence found in the warranted search because the individual’s interests that are violated have nothing to do with the search and seizure of evidence (Hudson v. Michigan)

145
Q

What is exception #4 to the exclusionary rule? (case)

What is the justification?

A

Independent Source Exception: Allows the introduction of evidence discovered initially during an unlawful search if the evidence is discovered later through a source that is untainted by the initial illegality (Murray)

Justification: Don’t want to put police officers in a worse position than they would be if violation hadn’t occurred (Murray)

146
Q

What is exception #5 to the exclusionary rule? (case)

A

Inevitable Discovery Exception: Government must show that the illegally obtained evidence would have been discovered through legitimate means independent of the official misconduct (Nix v. Williams) – preponderance of evidence standard

147
Q

What is justification #1 to exclusionary rule? what is the counterargument?

A

Preserves judicial integrity by insulating the courts from tainted evidence.

Counterargument: Preventing the correct verdict undermines judicial integrity

148
Q

What is justification #2 to exclusionary rule? what is the counterargument?

A

Prevents the government from profiting from its own wrong.

Counterargument: Criminals get a windfall.

149
Q

What is justification #3 to exclusionary rule? what is the counterargument?

A

The rule is not costly because it only excludes evidence that should never have been obtained in first place.

Counterargument: Excludes evidence that would’ve been obtained otherwise (with warrant).

150
Q

What is justification #4 to exclusionary rule? what is the counterargument?

A

The rule is necessary to deter police conduct.

Counterargument: Makes criminals into “private attorney generals.”

151
Q

A suspect can only claim the privilege against self-incrimination if all 3 elements are met & it is properly invoked?

A
  1. Incriminate: testimony must be incriminating
  2. Compulson: state must compel the witness
  3. Testimonial: state must compel the witness to be a witness against herself
152
Q

What is incrimination? (case)

What is not incriminating? (case)

A

RULE: Protects individuals from self-incrimination in criminal cases AND from answering questions in any proceeding that might incriminate him in future criminal proceedings (Counselman)

Not incriminating: Use of compelled testimony in civil case (Murphy)

153
Q

What is compulsion?

A

5th amendment self incrimination protection only applies if COMPELLED by the gov. (not voluntary)

154
Q

What are two examples of compulsion?

A
  1. Contempt power
  2. Threat of substantial economic sanction to government employees (Lefkowitz)
155
Q

What is the benefit burden theory?

A

Rule: denial of a benefit is NOT a penalty and is not compulsion

156
Q

What is the case for the benefit burden theory?

A

Benefit-Burden Test is NOT required by the Constitution because it is in the eye of the beholder (McKune)
- Loss of prison privileges for failure to join sex offender treatment is not compulsion

157
Q

What is the Griffin rule?

A

Government cannot use your decision to invoke right against self incrimination against you
- Judge and jury cannot make any adverse comments about your silence, decision not to testify, etc. (Griffin)

158
Q

Under the griffin rule does the judge instruct the jury? (2 cases)

A

Judge can tell jury not to draw bad conclusions from failure to testify (Carter, Lakeside)

159
Q

What do you ask yourself about testimonial?

A

(1) who can assert the privilege AND (2) what kind of evidence is protected

160
Q

Who is protected under testimonial requirement? (case)

A

Rule: it is a personal privilege that can only be asserts by the person who would incriminate herself (Fisher)

161
Q

Who is and is not protected under testimonial requirement under collective entities? (cases)

A

Protected: sole proprietorship (Doe)

Not protected: partnerships (Bellis), corporations (even if run by 1 person) (Brasell)

162
Q

What is protected under testimonial requirement? (case)

A

RULE: only testimonial evidence is protected, not physical (Schmerber)

163
Q

What makes evidence testimonial? (case)

A

Evidence is testimonial if the witness faces the cruel trilemma in disclosing, otherwise it is physical and not protected (Muniz)

164
Q

What is cruel trilemma?

Does physical evidence face the cruel trilemma?

A

Cruel trilemma: Self-accusation, perjury, or contempt

Physical evidence does not face cruel trillema because it is just true (cannot be perjury)

165
Q

What kind of evidence is protected under cruel trilemma?

A

Content of speech (Muniz)

166
Q

What kind of evidence is not protected under cruel trilemma?

A

Blood test (Schmerber)
Nature of speech (Muniz)
Voice line up
Line up
Handwriting test

167
Q

Are documents testimonial? (case)

A

Voluntarily created/written documents are NOT protected (Fisher)

168
Q

What are the two exceptions to documents being testimonial? (2 cases)

A
  1. Act of Production Privilege → Do not have to turn over voluntarily produced documents when the act of turning it over is testimony because (a) it tells the gov. Something it did not know AND (b) is incriminating (Fisher)
  2. Required Document Exception → Exception to voluntary requirement: If the gov. Requires you to keep records for legit admin purposes then there is no privilege in the content or act of producing them (Shapiro)
169
Q

How do you invoke the 5th amendment? (case)

A

MUST BE EXPRESSLY INVOKE → If not invoked and then question is answered, privilege is waived (Murphy)

170
Q

Is the 5th amendment self-executing? (case)

A

Privilege is not self-executing and that a witness who desires its protection must claim it. (Salinas v. TX)

171
Q

What are the two exceptions to the invocation requirement?

A
  1. Criminal defendant does not need to take the stand at criminal trial and invoke the privilege (Griffin)
  2. Failure to invoke is excused when government coercion makes his forfeiture involuntary
172
Q

What is the rule for immunity?

A

RULE: A person with immunity has not right to refuse to testify and may be punished with contempt for refusing to; not subject to cruel trilemma because not incriminating

173
Q

What are the two types of immunity?

A
  1. Transactional Immunity: No transaction about which a witness testifies can be the subject to future prosecution against the witness
  2. Use Immunity → 18 USC 6002: No testimony or other information compelled under the order may be used against the witness, except for a subsequent perjury prosecution (Kastigar)
174
Q

When are confessions admissible?

A

DUE PROCESS RULE: Confessions are ONLY admissible if they are voluntary (not forced, coerced by the gov). (Brown)

175
Q

What is the test for knowing whether confessions are voluntary?

A

Totality of the circumstances → looking at both police conduct & defendant’s ability to withstand coercion:

Factors Include:
(1) Personal characteristics of the accused (youthfulness, educational background, mental deficiency)
(2) Actions of the police (physical deprivation or mistreatment, psychological pressure, whether warnings were given)
(3) Circumstances surrounding the confession (how much other evidence police have)

176
Q

What is improper police action under voluntariness for confessions?

A

Physical threats, beating (Brown)
Creating false documents
Using friend to create pressure (Spano)

177
Q

What is proper police action under voluntariness for confessions?

A

Good cop, bad cop
Deception/false assertions
False promises (Scully)

178
Q

When does Miranda apply?

A

Applies when there is CUSTODIAL SETTING + INTERROGATION

179
Q

What is the Miranda rule?

A

MIRANDA RULE: Before you can use any statements obtained in a custodial interrogation, you must show that procedural safeguards/Miranda warnings were provided, and that the defendant waived effectuation of their privilege voluntarily, intelligently & knowingly.

180
Q

What is the bright line rule miranda creates?

A

Creates a bright-line rule that anything a defendant says when the warnings weren’t given is involuntary.

181
Q

What is the bright line rule miranda creates?

A

Creates a bright-line rule that anything a defendant says when the warnings weren’t given is involuntary.

182
Q

Does Miranda apply to all offenses? (case)

A

DOES NOT depend on seriousness of offense; same standard for misdemeanors and felonies (Berkemer)

183
Q

What are the 4 miranda warnings?

A

(1) Right to remain silent.
(2) Anything you say can be used as evidence against you in Court.
(3) Right to an attorney.
(4) If you cannot afford an attorney, one will appointed to you

184
Q

What is custody?

Is arrest or Terry stop custody? (case)

A

TEST: Custody is whether a person is deprived of his freedom of action in any significant way (Miranda)
- Arrest IS custody
- Terry stop is not custody (Berkemer)

185
Q

What is an example of custody and what is not an example of custody? (case)

A

Ex. Custody: Four armed policemen broke into D’s bedroom at 4am to get incriminating info. (Orozco)
Ex Not Custody: Two IRS agents invited into D’s home at 8am to discuss tax returns (Beckwith)

186
Q

What mitigates the existence of custody?

A
  1. Most important factor: Whether suspect informed at time of questioning that it was voluntary, that the suspect was free to leave or request officers to do so, or that suspect was not considered under arrest
  2. Whether suspect possessed unrestrained freedom of movement during questioning
  3. Whether suspect initiated contact with authorities or voluntarily acquiesced to official request to respond to questions
187
Q

What aggravates the existence of custody?

A
  1. Whether strong arm tactics or deceptive statements were employed during questioning
  2. Whether the atmosphere of questioning was police dominated
  3. Whether suspect was placed under arrest at termination of questions
188
Q

What is interrogation? (case)

A

RULE: interrogation is any questioning initiated by law enforcement AND the functional equivalent of express questioning (Innis)

189
Q

What is functional equivalent rule under interrogation?

A

Functional Equivalent Rule: any words or actions on the part of the police that police should know or are reasonably likely to elicit an incriminating response from the suspect

190
Q

What is the exception #1 of Miranda? (2 cases)

A

Impeaching the Defendant-Witness → Suspects can be impeached using non-Mirandized testimony as long as it is not involuntary (Harris, Hass)

191
Q

Can you use silence to impeach under exception #1 of Miranda? (3 cases)

A

Impeachment by use of pre-arrest silence is okay (Jenkins v. Anderson)

Impeachment by use of post-arrest silence okay so long as the silence still precedes the Miranda warnings (Weir)

Note, after Miranda warnings, Due Process Clause prohibits the government from using the defendant’s silence against him, even for impeachment (Doyle)

192
Q

What is the exception #2 of Miranda? (2 cases)

A

Admitting the Fruits of a Miranda Violation

RULE: If an officer partially/fails to give Miranda, confession must be excluded from case-in-chief, but fruits are typically allowed:
- investigative leads (Tucker)
- physical evidence (Patina)
- a second confession (Elstad & Seibert)

193
Q

What is the exception #3 of Miranda?

A

Emergencies
RULE: Overriding concerns of public safety can justify officer’s failure to provide Miranda warnings, and an unwarned statement n is admissible in government’s case-in-chief (Quarrels)

194
Q

What is the rule for waiving Miranda? Who has BOP?

A

RULE: Waiver must be made (1) voluntary, (2) knowing, and (3) intelligent. (Miranda)
- The state has burden of proof to prove that they did not waive right to silence – state has the heavy burden of proving the suspect knowingly and intelligently waived right to counsel

195
Q

What does knowing mean under waiving Miranda? (case)

A

Product of free and deliberate choice; not the product of intimidation, coercion, or deception. (Moran)

196
Q

What does intelligent mean under waiving Miranda? (3 cases)

A

Full Awareness of the right being abandoned and consequences of the decision to abandon it (Moran)
- Officers don’t need to tell suspects the possible scope of the interrogation (Colorado v. Spring)
- Officers don’t need to tell the suspect that the previous confession is inadmissible. (Oregon v. Elstad)
- Officers don’t need to tell suspect that attorney is trying to get in touch with them (Moran)

197
Q

What is the rule after Miranda is invoked? (case)

A

Rule: invocation of rights must be scrupulously honored; but Miranda is not a per se bar to resumping of questioning (Mosley)

198
Q

Can someone invoke their right to silence by staying silent? (case)

A

Right to silence must be clearly invoked (Thompkins)
- BUT WAIVER CAN BE IMPLIED where a defendant does not invoke his right to remain silent after fully understanding Miranda rights, he implicitly waives his Miranda rights by making a voluntary statement to police

199
Q

Can you waive right to counsel?

A

Rule: Once right to counsel is invoked, must be unambiguously waived before they can attempt to resume questioning (Edwards)

200
Q

Can Congress overrule Miranda? (case)

A

Congress cannot overrule Miranda because it is a Constitutional ruling (Dickerson)

201
Q

What are the magic words for the 6th amendment to attach?

A

INDICTMENT & ARRAIGNMENT

202
Q

What does Massiah stand for?

A

6th amendment prohibits the government from deliberately seeking incriminating statements from a defendant in the absence of counsel after arraignment or indictment (formally charged w crime)

203
Q

Can right to 6th amendment counsel be waived?

A

Right can be waived only if made knowing, intelligent and voluntary (Massiah)

204
Q

What is an example of deliberately seeking incriminating statements under 6th?

A

Isolation + appealing to religiosity of man is deliberate elicitation (Brewer v. Williams)

205
Q

What case incorporated 6th amendment to states?

A

Anyone charged with a felony has the 6th amendment right to counsel & this right is incorporated against the states (Gideon)

206
Q

Why have exceptions under Miranda?

A

Miranda is not required by the constitution, but are procedural safeguards + main deterring effect comes when evidence is unavailable in the case in chief

Criminal Procedure (5 decks)

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