Crim Pro Flashcards
reasonable expectation of privacy test
- person must have a subjective expectation of privacy
- AND that expectation must be objectively reasonable
when is the use of technology a search?
when the technology is not in general use or generally available to the public, then it is a search
Does a person have a reasonable expectation of privacy in their movements?
Yes, monitoring of a person’s movements with GPS tracking FOR AT LEAST 7 DAYS is a violation of that person’s privacy
curtilage
area immediately outside of a home that society recognizes as being afforded special privacy protections under property law (ex front porch or back patio)
Curtilage vs open fields factors
- how close is the area to the house
- is the area enclosed with a common fence with the house
- is the area used for traditional residential purposes
- what measures did the home owner take to protect the area from being viewed by people
when is property seized?
when law enforcement engages in meaningful interference with a person’s possessory interest
when is a person seized?
when, from an objective standpoint, a reasonable person would believe that they are not free to disregard the police and leave
The automobile exception
police can search a car without a warrant if they have probable cause
SITA a car’s driver
allows an officer, after arresting a car’s driver, to search the person and the car’s glove box
(Does not apply if the person is detained and away from the car)
Inventory searches
allows officers to warrantless search a car after impounding it, so long as the search is pursuant to PREEXISTING STANDARDIZED POLICY
hot pursuit exception
when officers have probable cause to believe that a suspect who committed a felony offense has fled into a home, the officers may enter the home without a warrant
preventing destruction of evidence exception
if officers reasonable believe that evidence is imminently being destroyed, then they may enter without a warrant
Can officers SITA search a phone?
No
K-12 special needs exception
school officials may conduct a warrantless search of students if they have a REASONABLE SUSPICION that a student possesses contraband
closely regulates businesses exception
government actors may conduct a warrantless search of closely regulates businesses if legislation says they can
(ex pawnshops, gun salesmen, junk yards)
what is required for police to enter a home with an arrest warrant
police must reasonably believe that
1. the home is the defendant’s residence and
2. the defendant is actually present when the officers enter the home
can police enter a third party residence to arrest someone with an arrest warrant?
Not without a separate search warrant for the third party residence
Reasonable suspicion
a suspicion based on specific, articulable facts objectively supporting the assumption that a suspect is or is about to commit a crime
can anonymous informants provide reasonable suspicion
Yes, but they must supply sufficient descriptive and predictive information that is corroborated by officers
how long does a terry stop last?
only long enough for an officer to confirm or deny their reasonable suspicion
how can an officer search during a terry stop?
open handed pat down of the outer clothing
what kind of proceedings does the exclusionary rule not apply to
grand jury, pre lims, sentencing, parole
Also immigration cases, admin proceedings, and civil trials
4th amendment standing
in order to challenge admissibility based on 4th amnd. grounds, the D must have a privacy or property interest related to the officer’s search
Car occupants 4th amnd. standing
Only a driver has standing to challenge a search. All occupants can challenge a stop.
Home visitors 4th amnd. standing
Overnight guest has standing. Commercial guest does not.
independent source exception
despite an officers fourth amnd. violation
1. the officer had an entirely independent source of probable cause that was untainted by the violation and
2. a judge issued a search warrant to the officer in a manner entirely unattributable to the officer’s earlier violation
inevitable discovery exception
prosecution must prove beyond a preponderance of the evidence that
1. the contested evidence would have been discovered by constitutional means completely apart from the violation and
2. a substantial alternate line of investigation was being pursued at the time of the violation
Good Faith Exception
exclusionary rule does not apply if a police officer reasonably relies on some objective factor in engaging in a search or seizure (ex. facially valid warrant, reliance on a computer database, reliance on precedent)
what is required for a person to invoked the 5th
their testimonial response would have to produce a realistic posibility of self incrimination
testimony-only immunity
prosecution cannot use any incriminating testimony. Person offered this can still invoke the 5th
derivative use immunity
prosecution cannot use any testimony or evidence gathered through said testimony. Person offered this CANNOT INVOKE THE 5TH
Transactional immunity
provides immunity from prosecution for any offense to which the testimony relates.
Person offered this CANNOT INVOKE THE 5TH
Involuntary confessions
incriminating statement that was not the product of free will or rational capacity
Involuntary confession factors
- defendant’s characteristics and
- the specific conduct interrogating officers used to obtain the confession
Custody RE Miranda
suspect has either been arrested or, from an objective standpoint, otherwise has been deprived of their freedom of movement in a significant way
Interrogation RE Miranda
incriminating questions or its functional equivalent (statement made by an officer that the officer should have known was reasonably likely to elicit an incriminating response)
When can officers reinitiate communication after a D invokes his right to remain silent?
after a significant amount of time (at least several hours)
Break in custody rule RE Miranda
If a person invokes their right to counsel and is then released. That invocation is good for 14 days. After that a new invocation is required
when does the 6th amendment right to counsel attach?
when adversarial judicial proceedings commence. This means the D has been charged in some manner. (Complaint then arraignment, pre lim, or indictment)
to what does the 6th amendment right to counsel apply?
all critical stages of prosecution
Does the 6th right to counsel apply to all charges against a D
6th amendment right to counsel is offense specific. Ex. charged with burglary, a confession to a murder without counsel present is not protected
Does the 6th require a custodial interrogation?
NO, just that an officer or their agent deliberately illicit incriminating information
when does one have a right to appointed counsel?
indigent defendants charged with a felony or misdemeanor carrying a day or more of jail time
Strickland test for effective assistance of counsel
- did the attorney perform deficiently
- did that deficient performance prejudice the defendant
How to gage deficient performance
court asks whether the challenged conduct fell below the level of performance expected of a reasonably competent attorney. An attorney is presumed to be effective.
How to gage prejudice for IAC
reasonable probability that, but for the deficiency, the result would have been different
when do you have a right to a jury?
if your crime is punishable by a maximum of over 6 months. 6months or less and there is no right to a jury trial
when does jeopardy attach?
When a trial jury is sworn in or, in a bench trial, when the first witness is sworn in or the first piece of evidence is submitted
collateral-estoppel doctrine
if a judge or jury finds a D not guilty based on the lack of an essential fact, then the state cannot charge D with a related offense, provided a conviction would be factually inconsistent with the original acquittal
