Crim: Constitution Issues

Question 1

Fourth Amendment: Introduction

Answer 1

4A applies to searches and seizures conducted by the government, in areas where an individual has a reasonable expectation of privacy.

S&S: government intrudes onto a constitutionally protected area, or violates an individual’s subjective and objective expectations of privacy.

REP: Exists in the home and surrounding curtilage, personal property, and public areas that ensure privacy (phone booths; public bathroom).

Standing: Whoever has a REP in the thing being searched or seized.

Question 2

Examples of situations you have no REP?

Answer 2

If you have no REP, you do not get standing!

1. Individual uses a residence for business only (i.e., drug deal)
2. Individual stores item in an area they have no REP (i.e., hiding drugs in friend’s house/purse)
3. Mere passengers of a car (unless they had a REP in the place searched)
4. Anything that can be lawfully seen by public
5. Public airspace/open fields
6. Things viewable with devices regularly available to public
7. Abandoned property (e.g., garbage on curb)
8. Smells detected from outside of a car/luggage at a public airport (e.g., by drug sniffing dog). It IS a violation if it was outside of your home.
9. Account information available to your bank/phone company

Question 3

How can the government perform a lawful search and seizure?

Answer 3

1. Valid warrant and execution
2. Invalid warrant and good faith behavior
3. Warrant exception

Question 4

Requirements of a valid warrant

Answer 4

1. Issued by a neutral and detached magistrate (unbiased)
2. Supported by probable cause. Must be based on facts that would make a reasonable person conclude the crime was committed or that the evidence will be found there. (Ex: an informant can provide probable cause if their tip is reliable).
3. Particularity: warrant is specific about people/places to search

Question 5

Validly Executing a Warrant

Answer 5

1. Must comply with the knock and announce rule (knock, announce presence, wait a reasonable time before entering). Failure does not trigger exclusion. Not required to knock and announce if it is unreasonable (dangerous or would lead to destruction of evidence)
2. Complying with terms of warrant. Only searching/seizing the items/places stated. In Michigan, a search warrant for the premises includes the vehicle.

Question 6

Arrest Warrants: When is it required? When is it not required?

Answer 6

Police can arrest people if they have probable cause that they have, are about to, or are committing a crime.

Required for:

1. Arrests in home
2. Arrests in someone else’s home (also need a search warrant for that home). Exigency exception.

Not required for:

1. Arrests in public
2. Cop witnesses crime
3. Arresting all occupants of a crime if there is evidence of a common criminal enterprise.

Question 7

Good Faith of Officer

When does Good Faith not apply?

Answer 7

If the cop has an invalid warrant, but executes it in good faith, that is generally lawful.

Good faith will not save a defective warrant:

1. Extreme lack of probable cause
2. Affidavit based on a lie
3. The warrant was clearly deficient
4. Magistrate was not neutral

Question 8

Warrant Exceptions

Answer 8

1. Consent
2. Plain view
3. Exigency
4. Search incident to arrest
5. Automobile exception
6. Administrative search

Question 9

Exception: Consent

Answer 9

Anyone with actual/apparent authority can voluntarily consent. This allows cops to search the areas that they consent extends to:

Who cannot consent?

1. Kids
2. Landlords/employers to private areas
3. Co-tenants can consent to common area searches, but other co-tenants can revoke it if they are present

Question 10

Plain View Exception

Answer 10

Lawfully present officer can seize items that are immediately apparent as evidence of a crime.

Extends to other senses (plain smell/feel)

Question 11

Exigency Exception

Answer 11

1. Hot pursuit of fleeing felon: can even follow suspect onto private property and detain him if there is probable cause the felon committed the crime
2. Emergency: cops must enter to treat/prevent serious injury
3. Imminent destruction of evidence

Question 12

Search Incident to Arrest Exception

Answer 12

During an arrest, an officer can search the arrestee without a warrant (person/wingspan).

Question 13

Searching Vehicle Without Warrant: All Exceptions

Answer 13

CAT SIP

Consent Exception:
Driver consent to search of their vehicle (does not extend to containers in car)

Automobile Exception:
Officers may search upon probable cause that evidence of a crime is inside (including trunk and containers)

Terry Car Frisk:
Officers can search interior (not trunk) for weapons during a traffic stop if the officer reasonably believes the occupants are armed and dangerous

Search Incident to Arrest:

• Unsecured: can search car and closed containers, but not the trunk
• Secured (handcuffed in cop car): can only search the car if it is reasonable to believe that it contains evidence of the crime the suspect was arrested for

Inventory Exception:
Officers can search cars that are impounded if in line with protocols

Plain View:
Officers may seize contraband from car if it’s in officer’s plain view.

Question 14

Administrative Search Exception

Answer 14

This provides an exception for cops, public employees/schools to conduct reasonable searches in different scenarios.

Searches must be neutral, and not for purpose of investigation.

Question 15

Administrative Search Exception: Parolees

Answer 15

As a condition of parole, parolees agree to warrantless searches of their home for any/no reason.

Question 16

Administrative Search Exception: Caretakers

Answer 16

Cops can search items given to them to care for

Ex: girl finds duffle and takes it to police station. They can search it.

Question 17

Administrative Search Exception: Border Searches

Answer 17

Cops can ask questions and conduct searches for any/no reason.

1. Includes searches of closed containers
2. An extremely invasive search may require some suspicion
3. Can include disassembly/reassembly of the car

Question 18

Administrative Search Exception: Public School Searches

Answer 18

Public officials may search students and their personal effects (backpack, locker, purse, etc.) upon reasonable suspicion.

RS: A moderate chance of finding evidence of wrongdoing (includes violation of school rules).

The search must not be overly intrusive in light of the kid’s age and sex.

Question 19

Administrative Search Exception: Informational Roadblocks/Sobriety Checkpoints

Answer 19

Not allowed in MI.

MBE: Police can do this if:

1. The checkpoint is narrowly tailored to learning about a serious crime
2. The stops are brief and systematic, not random; and
3. Questions are specific to the crime that they set up the scheme for.

Question 20

Administrative Search Exception: Random Drug Testing

Answer 20

Not allowed if primary purpose is to advance law enforcement efforts.

Question 21

Terry Stop and Frisk: Overview

Answer 21

A Terry stop and frisk allows an officer to lawfully stop and frisk an individual.

Stop: A brief seizure is permissible if the officer has a reasonable belief that criminal activity is afoot.

Reasonable Belief: officer must be able to articulate specific facts that would reasonably warrant the intrusion. Officer can draw from prior experiences.

Has a Stop occurred? Mendenhall factors:

1. Display of a weapon
2. Physical touching by officer
3. Officer’s tone, voice, demeanor
4. Presence of several officers
5. Not being told you are free to leave

Make sure the stop did not turn into an arrest. (Look at level of intrusion/force, and amount of time the stop should have taken).

Terry Frisk: A limited pat down of a stopped individual is permissible if the officer has a reasonable suspicion that the person is armed and dangerous.

• This is a pat down for weapons only
• Can seize items that, by plain feel, are contraband or evidence

An officer may have reasonable suspicion if:

1. Suspect believed to be involved in dangerous crime/drug trafficking
2. Suspect is aggressive
3. Large bulge under suspect’s clothes
4. Suspect is in a high-crime neighborhood (with other factors)

Question 22

Terry Stop: Reasonable Suspicion

Answer 22

Officer can point to specific and articulable facts which, when taken together, reasonably warrant the intrusion.
- A reasonable person would believe the action taken was appropriate

Question 23

Exclusionary Rule

And when does it not apply?

Answer 23

Evidence obtained in a 4A violation is inadmissible against the person whose rights were violated.

Does not apply: SICK

1. People without standing
2. Impeaching defendant’s testimony
3. Civil proceedings
4. KAAR

Question 24

If the evidence is obtained in a 4A violation, how can it still be admitted?

Answer 24

1. Inevitable Discovery: evidence unlawfully obtained, but would have been lawfully obtained, regardless.
2. Independent Source: evidence initially discovered during unlawful search, but later obtained through independent and untainted activity.
3. Attenuation: evidence unlawfully obtained, but the connection to the misconduct is so attenuated that it dissipated the taint (i.e., time passed; other factors).

Question 25

Who is government for purposes of the 4A?

Answer 25

• Police
• Private citizens following police orders
• Public school administrators (like principals)
• Security with power to arrest

Note that public school administrators only need reasonable suspicion, under the Administrative Search exception.

Question 26

Fourteenth Amendment

Answer 26

Officers cannot engage in coercive conduct to overcome the suspect’s will.
- Subjective

The statement and all fruits that come from it are inadmissible for all purposes.

Question 27

Sixth Amendment

Answer 27

The Sixth Amendment Right to Counsel attaches when formal charges are filed. CRIME SPECIFIC.

Rule: This prevents police from deliberately eliciting an incriminating response from the Defendant without their counsel or a waiver.

Any waiver must be knowing, intelligent, and voluntary.

Exclusion: Any confession is excluded from the prosecutor’s case in chief, but can be used on impeachment if it is not violating the 14A.

Question 28

Fifth Amendment

Answer 28

The Fifth Amendment attaches when there is a custodial interrogation.

Rule: This prevents officers from interrogating a defendant that is in custody, without their counsel or a valid waiver (exception: Public Safety).

Custody: formal arrest/something similar (objective)
Interrogation: questions/conduct that could reasonably lead to an incriminating statement (an undercover does not count).

Waiver: voluntary, intelligent, knowing

Exclusion: statement cannot be used in case in chief, but can be used on impeachment (if not violating the 14A). However, fruits can be admitted.

Miranda Warnings:

1. Right to remain silent
2. Anything you say can and will be used against you in a court of law
3. You have the right to an attorney
4. If you cannot afford, one, one will be appointed for you

The invocation must be clear and unequivocal.

Once the suspect invokes the right to remain silent, the cops must stop questioning and scrupulously honor the invocation.

Factors to determine if the invocation was scrupulously honored include:

1. Length of time the police stopped questioning (longer the better)
2. Whether Defendant was read his Miranda Rights again
3. Whether police questioned him about the same crime or a different crime
4. Whether the suspect initiated the convo

Invoking Miranda Right to Counsel
The request must be clear and unequivocal. Once you validly invoke, they must refrain from asking all questions (about ANY crime) unless suspect initiates it

Question 29

What if you want to challenge the admission of a confession?

What if a confession is improperly admitted?

Answer 29

If Defendant denies making statement:
Jury will decide whether it was made

If Defendant alleges he made it under duress:
He is entitled to a hearing outside of the jury to determine admissibility

Harmless Error Test: the verdict will stand if the government can prove, BARD, that the error was harmless.

Question 30

5A: Privilege Against Self-Incrimination

Answer 30

Any person (not corps) can plead the 5th in any proceeding where they are testifying under oath.
- Applies to testimony

Prosecution cannot comment on defendant’s invocation of the privilege.

Privilege does not apply:

1. If prosecution gives immunity
2. If defendant takes stand, he can’t invoke on cross re: things in direct
3. If SOL runs on the crime, witness must testify
4. If it was not asserted at first opportunity, it’s waived

Question 31

Pretrial Procedures: Bail

Answer 31

Bail ensures the defendant will show up to trial

1. Cannot be unduly high, but does not have to be affordable.
2. Judge must consider defendant’s individual circumstances
3. Bail decisions are immediately appealable

Question 32

Double Jeopardy

Answer 32

The 5th Amendment guarantees against double jeopardy. Double Jeopardy attaches when the defendant is put in jeopardy (i.e., a jury/bench trial, or accepted plea bargain).

Double Jeopardy provides that a defendant cannot be re-prosecuted by the same sovereign for the same crime once he is acquitted or convicted.

• State and Federal/Other States are different sovereigns
• State and its municipality are the same sovereign

Acquittal: if you are acquitted, you cannot be retried for the same offense.

Conviction: If your conviction is set aside on appeal, it can be retried unless the guilty verdict was set aside for a lack of evidence at trial.

Same Offense: a crime with the exact same elements, or a crime that includes all of the elements of the first charge.
- There must be at least one different element in EACH charge for it to be a different offense.

Exceptions to Double Jeopardy rule

1. Deadlock jury: no decision made
2. Appeal is successful: unless reversal is based on prosecutor not meeting its burden
3. Manifest necessity (ex: defendant asks for new trial or jury hears evidence they should not have heard)
4. Plea agreement is breached by defendant

Question 33

Who has the burden or proving that the defendant acted in self-defense?

Answer 33

Due Process allows a state to require a criminal defendant to prove elements of an affirmative defense, including self-defense.

Question 34

If Defendant is charged with a crime in one state, can another state charge the defendant with the exact same crime?

Answer 34

Yes! They are two different states, and each has the right to enforce their rights.

(Double Jeopardy)