Crim Pro Flashcards
Reasonable expectation of privacy
Subjective expectation of privacy that society was prepared to recognize as reasonable.
Fourth Amendment – Three factor test
- Government actor
- Search
A. Subjective expectation of privacy
B. That society recognizes as reasonable - Standing
Aerial surveillance from 1,000 feet
No search
Garbage left for collection outside curtilage of home
No search
Installation and use of pen register
No search
Government agent listening to conversation with radio
No search
Financial records
No search
Open field
No search
Dog sniff around the car during a routine traffic stop
No search
Dog sniff on closed luggage at airport
No search
New technology that is not in public use
Search
Physical trespass and intent to gather incriminating information
Search
Dog sniff on someone’s property
Yes
Police extend duration of stop beyond what is needed to carry out traffic stop
Search
Rental car owners
Search
Cell phone records
Search
Curtilage
Search
Home
Search
Person
Search
Papers
Search
Effects
Search
Curtilage test
- Proximity of the area
- Enclosed surrounding
- Nature of its uses
- Steps taken to protect area
Probable cause
Fair probability that criminal activity is afoot
Probable cause for informant information
- Basis of knowledge
- Veracity of information
- Reliability
Fourth Amendment – Searches and seizures
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated.
Fourth Amendment – Warrant requirement
No warrants shall issue but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons to be seized.
Arrest in public
Warrant or orobable cause or exception
Arrest in private
Warrant or exception
Search in private
Warrant or exception
Arrest for misdemeanor
No warrant requirement
Knock and announce
Exceptions
1. Dangerous or futile
2. Inhibit investigation
3. Hot pursuit
Exigent circumstances
The Fourth Amendment permits officers in hot pursuit of a fleeing felon to enter a home, into which the suspect had fled, and search the home for them.
Whether a fleeing misdemeanor suspect qualifies as an exigent circumstance turns on the particular facts of the case.
The need to protect or preserve life or avoid serious injury may justify an exigent circumstance.
Exigent circumstances justifies a warrantless search when the conduct of the police is reasonable and the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amend.
In drunk driving cases, whether there is exigent circumstances reasonably justifying a warrantless blood sample must be determined case by case based on the totality of the circumstances. Only reasonable to do so if the impracticality of obtaining a warrant outweighs the DEF’s privacy right.
The Supreme Court upheld a warrantless blood test of an individual arrested for DUI b/c the officer reasonably believed the delay required to get a warrant threatened the destruction of blood evidence (Schmerber had been in a car accident and taken to the hospital).
When drunk drivers are unconscious and cannot be given a breath test, the exigent circumstances rule almost always permits a blood test without a warrant.
Cady v. Dombrowski (1973) appeared to establish a “community caretaking” exception to the 4th Amendment. The “community caretaking” exception to the 4th AM does not create a standalone doctrine justifying warrantless searches and seizures in the home.
Search incident to arrest
Search incident to arrest exception is automatic if the arrest is valid; it does not need to be justified. Police need probable cause and/or a warrant to arrest, but if those conditions are met, they do not need probable cause to search incident to the valid arrest.
Police cannot invoke the search incident to arrest exception to the warrant requirement if they issue a citation instead of an arrest.
It is reasonable for the state to require a person to submit a breath test incident to an arrest, but not to a blood test (for Driving Under the Influence of Alcohol arrest).
If in house, they need an arrest warrant (Payton) barring exigent circumstances or consent to search any area in house beyond the suspect’s wingspan (Chimel).
Automobile searches
If police have Probable Cause to search car generally OR they have Probable Cause to search only a container in a car, they can search container without warrant.
Only need probable cause to search a vehicle (auto exception).
Mobile home on public property can be searched without a warrant, even though it is being used a home.
For Const. purposes, no warrant required to search car, even if it is completely immobile.
Police do not violate the 4th Amendment when they search a passenger’s personal belonging inside an automobile that they have probable cause to believe contains contraband.
Police may not enter the curtilage of a house to search a parked car without a warrant or consent of the homeowner.
Search incident to a lawful arrest (cars)
Police may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment (open area in the main part of the car where passenger or driver can sit; does not include trunk, console, or glove compartment unless console or glove compartment are open) at the time of the search. Police may also search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.
Plain view and plain touch
The warrant for the search and seizure of petitioner’s automobile did not satisfy the requirements of the Fourth Amendment, as made applicable to the States by the Fourteenth, because it was not issued by a “neutral and detached magistrate.”
The Fourth Amendment does not prohibit the warrantless seizure of evidence in plain view, even though the discovery of the evidence was not inadvertent. Although inadvertence is a characteristic of most legitimate plain view seizures, it is not a necessary condition.
Under the plain view doctrine, the police must have probable cause to believe that an item in question is evidence of a crime or is contraband in order to search and seize it without a warrant.
Consent searches
When the subject of a search is not in custody and the State would justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact, voluntary; voluntariness is to be determined from the totality of the surrounding circumstances.
While knowledge of a right to refuse consent is a factor to be taken into account, the State need not prove that the one giving permission to search knew that he had a right to withhold his consent.
The Fourth Amendment does not require that a lawfully seized defendant be advised that he is “free to go” before his consent to search.
The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches.
When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.
If any occupant of a home objects to a search, the consent of another occupant is not sufficient to waive the warrant requirement for the search.
Police officers may lawfully conduct a search of a home without a warrant if a physically present occupant consents to the search and no physically present occupant refuses the search, even if a physically absent occupant refuses the search.
Inventory searches
The expectation of privacy in one’s automobile is significantly less than that relating to one’s home or office. When vehicles are impounded, police routinely follow caretaking procedures by securing and inventorying the cars’ contents. These procedures have been widely sustained as reasonable under the Fourth Amendment.
Consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect.
Stop and frisk
Officer must be able to articulate the specific facts giving rise to reasonable suspicion that criminal activity may have been afoot. Additional step of patting down or frisking constitutes a further intrusion. It therefore requires additional justification: reasonable suspicion that the suspect may be armed and dangerous.
Three detectives go to the defendant’s neighbor’s house to get the defendant. Then drive him to the police station in a police car. Then place in in an interrogation room. He is not told he was under arrest but police testify that he would have been physically restrained if he had attempted to leave. He is interrogated. Court rules this is an arrest, not a Terry seizure.
We adhere to the view that a person is seized only when, by means of a show of authority, his freedom of movement is restrained… We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
Two Types of seizures: Physical force seizure occurs when officer terminates movement by physical force. Show of authority seizure occurs when suspect submits to officer’s authority.
Beyond the scope of Terry and cannot invoke the plain touch exception.
Seizure only lasts as long as the application of physical force.
Totality of the circumstances doctrine implies that bar for reasonable suspicion is very low.
Officer can reasonably rely on knowledge and experience to make commonsense inferences that lead to reasonable suspicion.
Basis for reasonable suspicion can be a series of activities leading to criminal activity (as opposed to the reasonable suspicion of criminal activity, itself).
Not enough predictive details. Knowledge was not detailed or predictive enough. Another application of reasonable suspicion. Investigative stop based on informant tip.
Court finds reasonable suspicion of criminal activity (such as drunk driving) as opposed to isolated episode of recklessness based on: 911 call was anonymous, contemporaneous report, eyewitness knowledge, truck stopped near where incident occurred, detailed description with license plate, and running off road.
Reasonable suspicion for police flight is satisfied by unprovoked flight in “high crime” area.
Police can search anywhere on the premises during protective sweep. This is separate from search incident to arrest.
Fourth Amendment – Big picture questions
- Does the Fourth Amend. apply?
- If so, did the police violate it?
- If so, will evidence be excluded?
Exclusionary rule – Knock and announce
Exclusionary Rule does not apply to Knock and Announce violations. This is because the deterrence benefits do not outweigh the substantial social costs
Exclusionary rule – objectively reasonable good faith
Evidence obtained pursuant to a search warrant later declared to be invalid may be introduced at a defendant’s criminal trial in the prosecutor’s case-in-chief if a reasonably well-trained officer would have believed that the warrant was valid.
Exclusionary rule – negligent bookkeeping
The Supreme Court creates a new exception to the exclusionary rule: it applies only to police action that is deliberate or reckless or grossly negligent, or the result of systemic department violations.
Exclusionary rule – binding appellate precedent
When police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.
Fruit of the Poisonous Tree – Independent source
Even if police obtain evidence in violation of the Fourth Amendment, it is still admissible if it is obtained through a source independent of the police illegality.
Fruit of the Poisonous Tree – attenuation of taint
Evidence that is secured as the result of police illegality is admissible if the connection between the illegality and the challenged evidence has “become so attenuated as to dissipate the taint.” Factors: (1) the temporary proximity between he initial unlawful event and the tainted evidence, (2) the presence of intervening events, and (3) the flagrancy and purpose of the official misconduct.
Fruit of the Poisonous Tree – inevitable discovery
Evidence is admissible despite police illegality if the evidence seized was not causally linked to that illegality – i.e., if the police can demonstrate that they would have inevitably discovered the evidence, even without a violation of the 4th AM.
Fourteenth Amend. – use of force
The Due Process Clause prevents the prosecution from using information in a confession that resulted from the use of force by police.
Fourteenth Amend. – shocks the conscience
Rochin added behavior that “shocks the conscience” into tests of what violates due process clause of the 14th Amendment. The Court held that stomach-pumping when conducted without the accused’s consent “shocks the conscience” and thus constituted a method of obtaining evidence that violated the Due Process Clause.
Fourteenth Amend. – threat of violence
A credible threat of physical violence is sufficient to support a finding of coercion.
Fourteenth Amend. – Overbears the will
On the record in this case, petitioner’s will was overborne by official pressure, fatigue and sympathy falsely aroused, his confession was not voluntary, and its admission in evidence violated the Due Process Clause of the Fourteenth Amendment.
Fourteenth Amend. – Mental condition
While a defendant’s mental condition may be a “significant” factor in the “voluntariness” calculus, this does not justify a conclusion that his mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional “voluntariness.”
Fourteenth Amend. – False documents
Manufacture and use of false documents by the police to induce a confession is a violation of the Fourteenth Amendment.
Fourteenth Amend. – totality of the circumstances
The court considers the totality of the circumstances, including the police’s deceptive tactics and Swanigan’s low IQ and susceptibility to anxiety. The court must also consider statements promising leniency and threatening non-cooperation as coercive and violating a defendant’s rights.
Fourteenth Amend. – Primary factors
- Interrogation methods
- Environment
- Personality traits
- Background
Fourteenth Amend. – Interrogation factors
- Psychological pressure
- Deception
- Promises of leniency
- Threats of punishment
- Length of interrogation
- Conditions of custody
Fourteenth Amend. – Individual factors
- Age of the suspect
- Suspect’s level of education
- Suspect’s background
- Mental condition or capacity of suspect
- Suspect’s intelligence
- Suspect’s personality traits that may make him more/less vulnerable to stress/pressure
Bright lines for voluntariness
- Physical violence
- Interrogations that last longer than 36 hours
- Threats of harm and promises of leniency
Voluntariness (Fourteenth)
- Mental freedom
- Risk of false confession
- Shocks conscience/fundamental fairness
Privilege against self-incrimination (Fifth)
Freedom from testimonial compulsion
Fifth Amendment – Miranda
- Custody
- Interrogation
- Known government agent
Miranda – Custody; free to leave
Suspects who are being interrogated by police are not always “in custody,” even if the interrogation is at the police station. The test: Would a reasonable person have felt free to terminate the interrogation and leave?
Miranda – Custody; Beheler warnings
“Beheler” warnings in police work: Advise the suspect that he is not in custody, free to go at any time, and does not have to answer questions.
Miranda – Custody; age factor
The age of a child subjected to police interrogation is relevant to the analysis of whether the suspect was “in custody” for Miranda purposes.
Miranda – Custody; roadside questioning
Miranda applies to all crimes, regardless of the severity or type of crime. Roadside questioning is generally not considered custodial because it is so brief and in public view (i.e., not police-dominated). However, roadside questioning could become custodial.
Miranda – Interrogation
Any words or actions that police should know are reasonably likely to elicit an incriminating response from the suspect constitutes an interrogation.
Miranda – Known government agent
Questioning by undercover govt. agent does not require Miranda warnings. Because government agent is unknown, there is no interplay between police interrogation and police custody and thus no inherently compelling pressures for Miranda warnings to dispel.
Miranda – Form and content; Order of warning
The order in which the Miranda warnings are given does not matter.
Miranda – Form and content; Exact language of warning
Exact language is not required for Miranda warnings. The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda.
Miranda violations – Missouri two-step
When an interrogator deliberately uses the two-step strategy, the second confession (i.e., the post warning confession) must be suppressed unless curative measures were taken before the post-warning confession was made. Curative measures are “anything designed to insure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver.” (e.g., substantial break in time and circumstances; additional warning that explains the inadmissibility of the pre-warning custodial statement)
Miranda violations – Fruit of poisonous tree
Miranda violation is not constitutional and does not lead to fruit of the poisonous tree. If secondary evidence comes in as result of Miranda violation, it is admissible.
Miranda violations – Physical evidence
Exclusionary rule does not apply to physical evidence obtained from an illegal confession.
Miranda violations – Leads and witnesses
Exclusionary rule does not apply to leads and witnesses obtained from an illegal confession.
Miranda exceptions – impeachment exception
Allows statement(s) elicited in violation of Miranda to be used to impeach the defendant if he takes the witness stand at trial and says anything that contradicts his statement. Note: This exception only applies to Miranda and specifically does not apply to violations of the Fourteenth Amendment.
Miranda exceptions – public safety
When the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the 5th Amendment’s privilege against self-incrimination.
Miranda exceptions – booking questions
Exclusionary rule does not Miranda warnings are not required when police ask “routine booking” questions (i.e., biographical questions necessary to complete the booking process and that are requested for record keeping purposes only).
Fifth Amendment – Miranda
- Custody
- Interrogation
- Known government agent
- Waiver
A. Voluntary
B. Knowing
Miranda waivers – implied waivers
Explicit waivers are not required; implicit Waivers will suffice. But mere silence is not enough. However, silence, understanding, and a course of conduct indicating waiver may be enough. In some cases waiver can be inferred from the actions and words of the person interrogated after Miranda warnings are given.
Miranda waivers – Requirements for implied waivers
An implied Miranda waiver, according to Berghuis v. Thompkins, would appear to require that: The suspect was read the Miranda rights; the suspect understood the Miranda rights; the suspect engaged in a “course of continuing conduct indicating waiver” of the Miranda rights.
Miranda waivers – counsel retained
(1) Suspect need not be told that counsel has been retained or is waiting for him/her prior to interrogation. (2) Only suspect – not counsel, not suspect’s relatives – can invoke Miranda rights.
Miranda waivers – crime specific
Miranda waiver is not crime specific (i.e., suspect need not be advised of nature of charges).
Miranda invocation – right to silence
If a suspect invokes his right to remain silent, the interrogator must “scrupulously honor” the defendant’s right to cut-off questioning. If police “scrupulously honor” this right, it is possible that they may be able to re-initiate questioning. Determined on a case-by-case basis. (In Mosley, police waited 2 hours before interrogating the defendant.)
Miranda invocation – right to counsel
Once the suspect has invoked the right to counsel, subsequent statements made during interrogation are inadmissible unless:
(1) Counsel is actually present when police reinitiate interrogation and suspect has been provided Miranda warnings and executed a voluntary and knowing waiver; or
(2) Suspect reinitiates interrogation and police provide Miranda warnings and suspect executes a voluntary and knowing waiver; or
(3) Two weeks (a 14 day break in Miranda custody) has/have passed, police reinitiate interrogation, and suspect executes a knowing and voluntary waiver.
Miranda invocation – invoking right to counsel
Ambiguous or equivocal invocation will not cease questioning. Police are not obligated to ask clarifying questions in response to ambiguous or equivocal attempts to invoke.
Miranda invocation – invoking right to counsel
Ambiguous or equivocal invocation will not cease questioning. Police are not obligated to ask clarifying questions in response to ambiguous or equivocal attempts to invoke.
Sixth Amendment
- Post indictment
- Deliberate elicitation
- Government agent
Sixth Amendment – Massiah rule
The Supreme Court defined waiver as “an intentional relinquishment of a known right or privilege” (comprehension was not sufficient). However, suspect did not know police or their informants were deliberately eliciting an incriminating statement.
Sixth Amendment – right to counsel
Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him – whether by way of formal charge, preliminary hearing, indictment, information or arraignment.
Sixth Amendment – offense specific
Sixth Amendment is offense specific. It only attaches for the offenses for which accused has been charged, not uncharged ones.
Sixth Amendment – double jeopardy
Offenses are the same only when proving the elements of the greater will always prove the elements of the lesser. Result: Prosecutors are incentivized to charge suspects with offenses unrelated to offenses they wish to have the defendant interrogated about.
Sixth Amendment – waiver
Once a DEF invokes his 6th AM right to counsel, a subsequent waiver of that right is presumed invalid if secured pursuant to police-initiated conversation.
Sixth Amendment – invoking a waiver
Miranda waiver of Fifth Amendment right to counsel carries over as waiver of Sixth Amendment right to counsel.
Sixth Amendment – Deliberate elicitation
Police put informant in jail cell with the instructions to keep his ears open, to avoid
asking Wilson any questions and to report to the police statements made by Wilson. The Supreme Court concluded that the informant was merely a “listening post” and did not elicit the incriminating information. The Supreme Court says that in order to prove a violation of the Sixth Amendment the defendant must demonstrate that the police and their informant took some action, beyond mere listening, that was designed to deliberately elicit incriminating remarks.
Confessions – constitutional protections
- Fifth Amendment
- Sixth Amendment
- Fourteenth Amendment
Identifications – Wade-Gilbert rule
Sixth Amendment requires counsel present for post-indictment live line-ups unless the defendant knowingly and voluntarily waives right to counsel.
Identifications – Pre-charge identifications
No Sixth Amendment right to counsel for pre-indictment line-up.
Due Process Challenges – Manson Factors
- Unnecessarily suggestive
- Reliability
A. Opportunity to view
B. Degree of attention
C. Accuracy and detail of description
D. Level of certainty
E. Length of time from crime to
identification
Identification – Sixth Amendment right to counsel
- Post-formal charges
- Applies only to live lineups
Remedies
1. Per-se exclusion of out-of-court identification
2. Allow in-court identification if not tainted
Identification – due process right
- Any stage
- Was the identification unduly suggestive?
Remedies
Not excludable if reliable
