Constitutional Protection of Accused Persons Flashcards
What is a search
Search is a government search of a location with a reasonable expectation of privacy.
Open fields doctrine
If the cop is flying over your back yard in a helicopter and you grow the weed in the open field and the cop looks down and sees the plants, its not search because you have no expectation of privacy in open field.
AKA:
Open areas with no expectation of privacy
Not a search
Standard for conducting a search
The cop has to have probable cause.
Probable Cause: Reasonable person would conclude its more probable than not that a crime has taken place.
Warrant requirement
Searches must be pursuant to a warrant
Requirements:
AKA
1. Detached magistrate
2. Fresh Facts
3. Must state specifically where and who is being searched
4. Cops cannot exceed scope of warrant.
o Warrant must be issued by neutral and attached magistrate AKA not a judge whos apart of it
o Facts have to be fresh and not out of date.
o The warrant must state specifically who and where is being searched
o The cops cannot exceed the scope of the warrant.
Informants
Cops can rely on them to get a warrant
Plainview
Police can seize what is in plain view during a lawful search
o Once they find what they’re looking for the search must stop.
Protective sweep
They want to look for more bad guys, people not contraband for their own safety
o They can only do this if they have evidence that there would be other criminals in the house
Exceptions to the warrant requirement
CASSIE BA (Bad Ass)
1. Consent
2. Auto Exception
3. Search Incident to a lawful arrest
4. Stop and Frisk
5. Inventory Search
6. Exigent Circumstances
- Boarder Searches
- Automobile Stop (Random Stops)
Consent
- If I consent to the search and let the cop in. I cant argue there was no warrant
o Who can consent to the search: one who owns or has apparent authority over the property.
o If 2 people share property and one refuses consent then the cops cannot search.
o If only 1 person is present and they consent, then the consent is valid and they can search the house
Search Incident to a lawful arrest
- The arrest has to be lawful first then you can search anywhere on my person or on my wingspan without a warrant
- If a person is arrested in a car the cops may search the passenger compartment if the defendant is not secured (in shackles, tied up) and they can still get access to the car or if the cops have reasonable belief that there is evidence of a crime inside the car.
Inventory search
- Once ur at popo station cop can do inventory search of the car and person.
Exigent Circumstances
- Reasonable belief that the evidence maybe lost or destroyed.
o They have to tell you there were exigent circumstances for this to be the ans.
Auto Exception
- Illegal automobile stop- no traffic violation
o If there was no reason to pull the car over, nothing found is admissible. - Legal automobile stop- traffic violation
o Popo cannot search the car unless come evidence of other crimes
Boarder Searches
- No warrant is necessary for a boarder search
- US Officials may search you on foreign land.
- A dog sniff in a public place is not considered a search and none of the rules apply the dog is not conducting a search
Stop and Frisk
- The stop part is: when can cop stop me and talk to me
o Allowed when there is reasonable suspicion that criminal activity is afoot - Frisk (pat me down)
o Can only frisk if there is reasonable belief that a person is armed and dangerous
Automobile Stops (random Stops)
- If youre just stopping particular cars for certain reasons not allowed to do
- Checkpoint stops allowed if have generic uniform method for stopping
o Every 10th car that’s ok. Ect
Miranda- custody
o Custody
When objectively to a reasonable person you don’t feel free to leave.
Don’t mean you have to be handcuffed.
Miranda- Interrogation
o Interrogation
When the statement that the cops makes is trying to elicit a criminal response.
Miranda
Need to have both be in custody and be interrogated
Volunteer Statements
- If I blurt something out on my own then no need Miranda rights because I volunteered statements.
- No Miranda required if suspect volunteers information
Miranda Warnings
If you are under custodial interrogation the Miranda warnings are:
1. Right to remain silent
2. Anything said can be used against you
3. Right to an attorney
4. If you cannot afford one, one will be provided
If you get Miranda and request a lawyer
all questioning must stop
You can waive your Miranda rights as long as
It is knowingly and voluntarily
Right against self incrimination
- Regarding testimonial or communication.
- You can make the D perform certain physical acts (walk across the courtroom, if person had limp who allegedly robed bank).
o Never required to testify
o May be required to perform physical acts
o Cannot be forced to make statements. - There is no right to counsel at a line up prior to indictment.
- After the D is charged you have right to counsel in the line up.
Right to counsel
5th
6th
- 5th amend right to counsel
o before charges or indictment - 6th am right to counsel
o after formal charges have been brought
Right to effective counsel
o Did the attorney deviate from the norms and reasonably probable that the verdict would not have been guilty had counsel been effective. (Q of fact).
Presumption is that D got effective counsel.
You can waive your right to counsel as long as it is:
knowingly
Right to counsel at all Critical Stages
o Post indictment interrogation
o Preliminary hearings for probable cause to prosecute
o Arraignment
o Post charge lineups
o Guilty pleas and sentencing
o Felony trials
o Misdemeanor trials with imposed imprisonment
o Overnight recesses during trial
o Appeals as a matter of right
o Appeals of guilty pleas
o Pleas of nolo contender
Not critical stage, no right to counsel
o Blood sampling
o Handwriting or voice samples
o Pre-charge/investigative lineups
o Photo IDs
o Preliminary hearings for probable cause to detain
o Brief recess during defendant’s testimony
o Discretionary appeals
o Parole & Probation revocation proceedings
o Post-conviction Proceedings
Codefendants can share one lawyer unless:
Codefendants can share counsel unless conflict arises.
If you plea guilty it must be entered
it must be entered voluntarily and intelligently and understand the consequences of what youre doing.
Jury Trial
o You have a right to a jury trial if the offence is longer than 6 months
o The jury should be a cross-section of the community
o State trial by 6 members must be unanimous
o State trial by 12 members need not be unanimous
o Federal trial by 12 members must be unanimous
o Exclusion of a juror based on race/gender violates equal protection
Public Trial
o D usually have the right to a public trial in all crim trials.
o The press can attend generally
o Except at a grand jury they press cannot attend, Otherwise the press has a right to be present unless the Judge has an overriding interest to close the trial
Right of Confrontation
o If youre the D and someone’s going to accuse you, you have the right to get them on cross examination because theyre making you look bad.
o AKA you have right to confront & cross examine all witnesses even if the statement is from out of court.
Plaintiff must prove
Every element of the crime beyond a reasonable doubt
Defendant must prove
an affirmative defense by a preponderance of the evidence
Grand jury
- The accused has no right in a grand jury to even know the grand jury is looking into evidence against them
- No right to be present while the grand jury is investigating and hearing evidence
- The exclusionary rule does not apply and you can even use illegally obtained evidence to indict someone in a grand jury.
Grand jury witness
o Has no right to counsel inside the room. Counsel can be outside and could consult later on but while youre in the room answering questions in grand jury no counsel
o AKA: Grand jury
1. Accused has no right to be present
2. Exclusionary rule does not apply
3. Witness has no right to counsel inside the room
Double jeopardy
- You cant be tried for the same crime twice.
- Anything that occurs prior to trial 1, double jeopardy does not apply.
o Ie: grandy jury, preliminary hearings
When did trial 1 begin
o If it’s a jury trial, when the jury is sworn and impaneled
o If not a jury trial (bench trial) when the first witness is sworn in
If either of these happens then trial 1 is beginning and double jeopardy can attach.
o Once trial 1 began there must be a final judgment (a verdict, the end of trial 1) for double jeopardy to apply.
Trial 1 began but never ended
o Mistrial: no double jeopardy because there was no final judgment.
Even if trial 1 began, ended, there was aa final judgment, it looks like double jeopardy could attach but there are exceptions:
it looks like double jeopardy could attach. There are exceptions.
o Separate sovereign:
o You can be tried in 2 diff states for same crime.
o You can be tried for same crime in state and fed court
o Cant be tried in same state diff counties for same crime
Collateral estoppel
You need the element from the crime 1 to convict me in crime 2.
o AKA: No retrial allowed when second trial requires an element defendant was acquitted of
Cruel and unusual punishment
o The sentence must be proportionate to the crime and the sentences of other criminals in similar cases.
o There is a right to counsel during the sentencing and you have a right to remain silent
Death penalty
o The death penalty is not cruel and unusual as long as there are procedural safeguards to prevent arbitrary or discriminatory sentencing.
o You cannot execute anyone under 18 at the time of the crime or anyone who is mentally challenged
