Crim Pro Flashcards
4A Search – Reasonable Expectation of Privacy
4A protects a person from unreasonable government searches. A search occurs when a government actor (can include informant) violates a person’s reasonable expectation of privacy.
Warrant Requirements
Search warrant must be issued by a neutral magistrate and be based on probable cause and describe the place and property to be searched with particularity.
If a warrant doesn’t meet these requirements, it’s invalid and the items should be excluded from prosecutor’s case in chief
Warrant Exceptions
Absent one of these exceptions, a warrantless search performed by the govt that violates person’s REP is unlawful
ESCAPES from the warrant requirement: Exigent circumstances Search incident to lawful arrest Consent Automobiles Plain view Evidence obtained from administrative searches Stop and frisk
Exigent Circumstances
Available when officers are in “hot pursuit” or immediate danger OR when the evidence would spoil or disappear in the time it would take to get a warrant
BUT a warrant is necessary for a search if the officers create the exigent circumstances
Search Incident to a Lawful Arrest
Officers can conduct a search without a warrant if it occurs at the time that a lawful arrest is made.
The search is limited to objects within the reach of the arrestee.
If arrestee is restrained, this further limits the scope of the search.
Consent
Available when the person or a third party with apparent authority consents to the search.
Officers don’t have to inform person that they have the right to refuse consent.
Officers can’t search if one occupant refuses and that occupant is present.
Automobiles
Available to conduct a search without a warrant if cops have probable cause to believe the car contains contraband or evidence of a crime.
They can search the parts of the vehicle and containers inside that could reasonably contain the items you have probable cause to search for.
–Ex. You can search the glove box for a shotgun that couldn’t fit in it
Plain view
Can seize evidence without a warrant when officers are
- Legally on the premises
- Evidence is within plain view
- There is probable cause to believe the items are contraband or evidence of a crime
Evidence Obtained from Administrative Searches
Search warrants not needed for administrative searches (think: airplane boarding, international borders, roadblocks) if search is reasonable and conducted pursuant to established police agency procedures that are designed to meet legitimate objectives while limiting officer’s discretion
Stop and Frisk (Terry Stops)
Cops can stop someone when they have reasonable suspicion based on articulable facts (more than a hunch but less than probable cause) to believe the subject is or is about to be engaged in criminal activity
During Terry stop, can frisk for weapons but cannot initiate search for evidence. If the frisk for weapons reveals objects that are obviously contraband, cop can seize that. But they couldn’t for example look inside a wallet to find drugs.
5A
Right against self-incrimination and Miranda
No person must voluntarily be a witness against themself…D can invoke 5A rights and not testify
5A - Miranda
Under Miranda, any incriminating statement obtained from a custodial interrogation cannot be used against suspect at trial unless police informed suspect of Miranda rights.
D can knowingly and voluntarily waive Miranda. Burden is on govt to show by preponderance of the evidence
Police must cease interrogation if suspect invokes right to remain silent OR right to counsel
If Miranda violation, the statement is inadmissible for prosecutions case in chief but can be admitted to impeach the D. Evidence obtained from a voluntary statement taken in violation of Miranda is admissible.
Exceptions to Miranda: 1. When public’s safety is at risk 2. when suspect doesn’t know the interrogator is a cop, 3. if the questioning is biographical info for routine booking purposes
Harmless Error Rule: Evidence obtained in violation of Miranda can still be used if D would’ve been convicted even without the tainted evidence
5A vs 6A Right to Counsel
6A: Automatically attaches once formal charges//criminal judicial proceedings commence. Offense specific. D can voluntarily, knowingly and intelligently waive this right. Applies even if D doesn’t know they’re talking to the police.
5A: Does not automatically attach – must be affirmatively invoked. Applies once in custody. Once invoked, police cannot question suspect on any matter
