Crim Pro Flashcards
Exclusionary rule for grand juries
No exclusionary rule for grand jury
Constitutional Requirements Binding on States
The first eight amendments to the U.S. Constitution apply to the federal government. Most of these rights are applicable to the states through the Due Process Clause of the Fourteenth Amendment.
The following rights are binding on the states (as well as the federal
government):
The Fourth Amendment prohibition against unreasonable searches and seizures, and the exclusionary rule
The Fifth Amendment privilege against compulsory self-incrimination
The Fifth Amendment prohibition against double jeopardy
The Sixth Amendment right to speedy trial
The Sixth Amendment right to a public trial
The Sixth Amendment right to trial by jury
The Sixth Amendment right to confront witnesses
The Sixth Amendment right to compulsory process for obtaining witnesses
The Sixth Amendment right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed
The Eighth Amendment prohibition against cruel and unusual punishment; and
The Eighth Amendment prohibition against excessive fines
Note: The Constitution provides the floor of protection for criminal defendants. States are free to grant greater protection, and many do.
Constitutional Requirements Not Binding on States
The right to indictment by a grand jury for capital and infamous crimes has been held not to be binding on the states. It has not yet been determined whether the Eighth Amendment prohibition against excessive bail creates a right to bail. However, most state constitutions create a right to bail and prohibit excessive bail.
4A: Seizure
The Fourth Amendment provides that people should be free from unreasonable searches and seizures.
Any exercise of control by a government agent over a person or thing is a seizure.
Governmental seizures of persons, including arrests, are seizures within the scope of the Fourth Amendment and so must be reasonable.
Reasonable person would not feel free to decline officer’s requests or terminate encounter
4A: Arrest
Police take person into custody against their will for prosecution or interrogation
4A: Arrest: Probable Cause Requirement
An arrest must be based on probable cause—that is, trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law.
Probable cause is based on the totality of the circumstances.
4A: Arrest: Warrant Generally Not Required Except for Home Arrests
A warrant generally is not required before arresting a person in a public place. However, police generally must have a warrant to effect a nonemergency arrest of a person in their home. The officers executing the warrant may enter the suspect’s home only if there is reason to believe the suspect is within it.
4A: Arrest: Station House Detentions
Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting against the person’s will.
4A: Arrest: Effect of Invalid Arrest
An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution
Investigatory Detentions – Terry Stops
The police have the authority to briefly detain a person even if they lack probable cause to arrest. If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (that is, not merely a hunch), they may detain a person for investigative purposes.
If the police also have reasonable suspicion that the detainee is armed and dangerous, they may frisk the detainee for weapons.
Terry Stops: Reasonable Suspicion
Reasonable suspicion is more than just vague suspicion but is less than probable cause.
Whether the police have reasonable suspicion depends on the totality of the circumstances.
Informants: When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (including predictive information) to be sufficient.
Terry Stops: Duration and Scope
Investigatory stops are not subject to a specific time limit.
The police must act in a diligent and reasonable manner in confirming or dispelling their suspicions.
The police may ask the detained person to identify themself and generally may arrest the detainee for failure to comply with such a request.
The detention will also turn into an arrest if during the detention other probable cause for arrest arises.
Terry Stops: Property Seizures
Brief property seizures are similarly valid if based on reasonable suspicion
Automobile Stops
Police may stop car if reasonable suspicion to believe that a law has been violated.
Automobile Stops: Traffic Stops and Police Dogs
During routine traffic stops, a dog sniffing is not a search.
SO LONG AS: Police do not extend stop beyond normal time to write ticket or give warning, conduct normal inquiries.
If dog alerts, can become probable cause for search.
But note: In 2013, the Supreme Court also held that the police (without probable cause) cannot use a drug sniffing dog outside of the home of a suspected drug dealer.
Automobile Stops: Police Officer’s Mistake of Law
A police officer’s mistake of law does not invalidate a seizure as long as the mistake was reasonable.
Automobile Stops: Seizure of All Occupants
An automobile stop constitutes a seizure not only of the automobile’s driver, but also of any passengers as well. Thus, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop.
Automobile Stops: Informational Checkpoints and Roadblocks
If the police set up a roadblock for purposes other than seeking incriminating information about the drivers stopped, the roadblock will be constitutional.
If special law enforcement needs are involved, the Supreme Court allows police officers to set up roadblocks to stop cars without individualized suspicion that the driver violated some law.
To be valid, the roadblock must:
Stop cars on the basis of some neutral, articulable standard (for example, every car) and
Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility
Automobile Stops: Police May Order Occupants Out
And can frisk occupants if they believe the detainees are armed
Automobile Stops: Pretextual Stops
If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.
Evidentiary Search and Seizure
Like arrests, evidentiary searches and seizures must be reasonable to be valid under the Fourth Amendment, but here reasonableness requires a warrant except in six circumstances.
Evidentiary search and seizure issues should be approached using the following analytical model:
Government conduct
Standing to object
Valid Warrant
If not, exceptions to warrant requirement
Evidentiary Search and Seizure: Governmental Conduct
Police, government agents, private individuals acting at direction of police**
It does not protect against searches by privately paid police unless they are deputized as officers of the public police
Evidentiary Search and Seizure: Standing to Object
Reasonable expectation of privacy with respect to place searched or item seized
Totality of circumstances
When Person has REP:
Person owned or had right to possess the place searched
Place searched is person’s home
Person is overnight guest of the owner
Note: constant use of object (use wifes purse all the time), may have REP
No REP when telling someone to “throw something away”, abandonment
Evidentiary Search and Seizure: Standing to Object: No REP in things handed out
Generally, this includes information in the hands of third parties (such as bank account records).
However, a person does have a reasonable expectation of privacy in their cell-site location information (that is, personal location information derived from cell phone usage data) which is stored in the hands of third parties.
The following is a list of things held out to the public, the seizure of which implicates no right to privacy:
(1) The sound of your voice
(2) The style of your handwriting
(3) The paint on the outside of your car
(4) Account records held by a bank
(5) The location of your car on a public street or in a driveway
Note: In 2012, the Supreme Court held that installation of a GPS device on a suspect’s car constitutes a search within the Fourth Amendment.
(6) Anything that can be seen across the open fields
(7) Anything that can be seen from flying over public airspace
(8) The odors emanating from your luggage or car; and
(9) Garbage set out on the curb for collection
Remind set out on the curb, not just leaning against house
Remember, no thermal imaging etc
Valid Warrant
Core requirements:
Probable cause
Particularity
Valid Warrant: Probable Cause
A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed.
Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers’ conclusions.
Valid Warrant: Probable Cause: Use of Informers
An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Under this test, the informant’s reliability and credibility or their basis for knowledge are relevant factors in making this determination.
Note that the informer’s identity generally need not be revealed
Valid Warrant: Particularity
Must describe place to be searched and items to be seized with particularity
Can be anticipatory, need not be on premises at time of getting warrant, know it will be there
A warrant may be obtained to search premises belonging to nonsuspects, as long as there is probable cause to believe that evidence will be found there.
Neutral magistrate
Execution of Warrant
Only the police (and not private citizens) may execute a warrant
No third parties allowed unless identifying stolen property
Violation of knock and announce rule will not result in suppression of evidence
Execution of Warrant: Search of Persons Found on Searched Premises
A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but
a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant.
Neither does the warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed.
Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed.
Of course, if a police officer has reason to believe any person present is armed and dangerous, the officer may conduct a Terry pat down for weapons
Exceptions to Warrant Requirement List
Search Incident to Arrest
—-Automobiles
—-Technological Searches
—-Search Incident to Incarceration or Impoundment
Automobile Exception
Plain View Exception
Consent Exception
Stop and Frisk
Hot Pursuit, Evanescent Evidence, and Emergency Aid
Exceptions to Warrant Requirement: Search Incident to Arrest
Police can search after a valid arrest
Police can make protective sweep of area if they believe accomplices may be in the area
Search must be contemporaneous with time and place of arrest
If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.
Can search person and person’s wingspan
Exceptions to Warrant Requirement: Search Incident to Arrest: Automobiles
The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search:
1. The arrestee is unsecured and still may gain access to the interior of the vehicle; or
2. The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle
Exceptions to Warrant Requirement: Search Incident to Arrest: Technological Searches
Court will balance how new type of search affects privacy vs how much search is needed for legitimate governmental interests
Warrantless breath test permitted but not blood
Physical attributes of cell phone may be searched but not data
Exceptions to Warrant Requirement: Search Incident to Arrest: Search Incident to Incarceration or Impoundment
At the police station, the police may make an inventory search of the arrestee’s belongings pursuant to established department procedure. Similarly, the police may make an inventory search of an impounded vehicle.
And can search all containers in the vehicle
Exceptions to Warrant Requirement: Automobile Exception: Parked in Curtilage
EXCEPTION: if the vehicle is parked within the curtilage (for example, the driveway) of a suspect’s home, the police may not search the vehicle without a warrant.
Exceptions to Warrant Requirement: Automobile Exception
If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.
If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later.
If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant.
Exceptions to Warrant Requirement: Automobile Exception: Probable Cause After Stop
Probable cause can arrive after being stopped
Still valid reason for stop needed
But after stop, probable cause can arise from facts
BUT must be before anyone or anything is searched (plain view works though)
Exceptions to Warrant Requirement: Automobile Exception: Passenger Belongings
The search may extend to packages belonging to a passenger; it is not limited to the driver’s belongings.
Exceptions to Warrant Requirement: Automobile Exception: Containers Placed in Vehicle
If the police have probable cause only to search a container in a vehicle, they may search only the container, not other parts of the vehicle.
Exceptions to Warrant Requirement: Plain View Exception
The police may make a warrantless seizure when they:
1. Are legitimately on the premises
2. Discover evidence, fruits or instrumentalities of crime, or contraband
3. See such evidence in plain view; and
4. Have probable cause to believe (that is, it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime
Exceptions to Warrant Requirement: Consent Exception
A warrantless search is valid if the police have a voluntary consent. Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent.
The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.
If police say they have a warrant, it NEGATES consent
Exceptions to Warrant Requirement: Consent Exception: Authority to consent
Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants.
Exception: an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant.
If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (for example, a lawful arrest), the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent.
Exceptions to Warrant Requirement: Stop and Frisk
Terry stop: Brief detention for the purpose of investigating suspicious conduct
Terry frisk: Pat down of outer clothing and body to check for weapons
Stop must be reasonable and reasonable belief man is armed for frisk. If feel weapon or contraband, then valid. However, no manipulation, only plain feel.
The scope of the frisk is generally limited to a patdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing.
Exceptions to Warrant Requirement: Stop and Frisk: Admissibility of Evidence
During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband, and such items are admissible as evidence.
Exceptions to Warrant Requirement: Stop and Frisk: Automobile Stops
If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may:
(1) conduct a frisk of the suspected person, and
(2) search the vehicle, so long as it is limited to the areas in which weapon may be placed
Exceptions to Warrant Requirement: Evanescent Evidence
Evidence that may disappear quickly if police took time to get warrant
Evanescent means fleeting
Blood draw requires warrant typically, but could have circumstances where they need to
Exceptions to Warrant Requirement: Hot Pursuit
If felon fleeing, may make warrantless search and seizure and may pursue suspect into private dwelling
Within 15 minutes is rule of thumb
If truly in hot pursuit, any plain view evidence is admissible, in any particular apartment even if not suspect
Exceptions to Warrant Requirement: Emergency Aid/Community Caretaker Exception
Police may enter premises without warrant if officer faces emergency that threatens health or safety
Ex. hears gunshots in house and screams for help
Exceptions to Warrant Requirement: Other Exceptions Permitting Warrantless Searches
The following warrantless searches have been upheld (non-exhaustive):
Administrative searches of a business within a highly regulated industry
Drug tests of public school students who participate in extracurricular activities
Exceptions to Warrant Requirement: Public School Searches
A warrant or probable cause is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary.
A school search will be held to be reasonable only if:
It offers a moderate chance of finding evidence of wrongdoing
The measures adopted to carry out the search are reasonably related to the objectives of the search; and
The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction
Wiretapping and Eavesdropping
Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes a search under the Fourth Amendment.
A valid warrant authorizing a wiretap may be issued if
(1) there is showing of probable cause,
(2) the suspected persons involved in the conversations to be overheard are named,
(3) the warrant describes with particularity the conversations that can be overheard,
(4) the wiretap is limited to a short period of time,
(5) the wiretap is terminated when the desired information has been obtained, and
(6) return is made to the court, showing what conversations have been intercepted.
Wiretapping and Eavesdropping: The Unreliable Ear and Uninvited Ear
Unreliable: A speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation or is an informer wired for sound or taping the conversation.
Uninvited: A speaker has no Fourth Amendment claim if they make no attempt to keep a conversation private.
Wiretapping and Eavesdropping: Pen Registers
Pen Registers
Although pen registers (devices that record only phone numbers that are dialed from a phone) are not controlled by the Fourth Amendment, by statute judicial approval is required before a pen register may be used.
Evidentiary Search and Siezure: Sense of Justice
Evidence obtained in a manner that offends a “sense of justice”—is inadmissible under the Due Process Clause. If a crime is induced by official actions that shock the conscience, any conviction stemming from those actions is unconstitutional.
Confessions: Voluntary
For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances.
A statement will be involuntary only if there is some official compulsion (for example, a confession is not involuntary merely because it is a product of mental illness).
Confessions: Harmless Error Test
Applies If an involuntary confession is admitted into evidence, the harmless error test applies; this means the conviction need not be overturned if there is other overwhelming evidence of guilt.
6th Amendment Right to Counsel
Applies to all critical stages of prosecution after judicial proceedings have begun
Prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless the defendant has waived their right to counsel.
Note that there can be no violation of the Sixth Amendment right to counsel before formal proceedings have begun.
Thus, a defendant who is arrested but not yet charged does not have a Sixth Amendment right to counsel but does have a Fifth Amendment right to counsel under Miranda.
Stages when 6th amendment right applies
Post-indictment interrogation
Preliminary hearings to determine probable cause to prosecute
Arraignment
Post-charge lineups
Guilty plea and sentencing
Felony trials
Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed
Overnight recesses during trial
Appeals as a matter of right
Appeals of guilty pleas
Stages when NO right to counsel:
Blood sampling
Taking of handwriting or voice exemplars
Precharge or investigative lineups
Photo identifications
Preliminary hearings to determine probable cause to detain
Brief recesses during the defendant’s testimony at trial
Discretionary appeals
Parole and probation revocation proceedings
Post-conviction proceedings
6th Amendment Right to Counsel: Offense Specific
The Sixth Amendment is offense specific. Thus, even though a defendant’s Sixth Amendment rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment right to counsel (although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda).
Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.
6th Amendment Right to Counsel: Waiver
Must be knowing and voluntary
Does not require presence of counsel, if counsel was not requested
