Crim Pro Flashcards
Seizure
By means of (1) physical force, or (2) show of authority, a person’s freedom of movement is restrained.
Exceptions to search warrant
ESCAPES
E - Exigent circumstances
S - search incident to arrest
C - Consent
A - Automobiles
P - Plain view
E - Evidence obtained from administrative searches
S - Stop and Frisk
When is a warrant required for a search?
(1) government conduct violates a
(2) reasonable expectation of privacy
Need a warrant unless exception applies
Requirements for a valid search warrant
(1) issued by a neutral magistrate
(2) probable cause that items sought are fruits, instrumentalities, or evidence of crime
(3) property and place described with particularity
If invalid warrant, evidence excluded from prosecutor case in chief
Three types of seizures
1 - stop and frisk - terry stop: reasonable suspicion, based on articulable facts. Allowed to pat down for weapons, and if pat down reveals obvious other evidence, allowed.
2 - traffic stop - same as terry stop, but if a checkpoint, don’t need reasonable suspicion.
3 - arrest - need probable cause. can be with or without warrant
When can an arrest be made without a warrant?
(1) In public
(2) for crimes occuring in arresting officer’s presence
(3) if probable cause that D committed felony
If they did not witness, then can only arrest for a felony if probable cause. Cannot arrest for misdemeanor without warrant.
Inside a persons home ONLY IF exigent circumstances (hot pursuit - PC that D committed felony - or danger to others - or prevent destruction of evidence) OR if consent
Elements for arrest warrant
(1) neutral and detached magistrate
(2) - probable cause that named individual committed crime
(3) - name person and identify defense
Search incident to arrest
if arrest is lawful,
search of the person and immediate surrounding area to (1) protect officer from weapons or (2) prevent destruction or concealment of evidence.
Evidence can be used at trial
NOTE: in home, you can perform a protective sweep for people
This is different from a terry stop, because here an arrest occurs and officers have more liberty to search.
Open fields
Even if private property, cannot have a reasonable expectation of privacy for open fields
Limited expectation of privacy for cars
Warrantless search allowed incident to arrest if (1) arrestee is within reasonable distance from compartment and (2) inventory search of impounded vehicle.
Even without arrest, police can perform FULL search if probable cause that it contains contraband.
Third party consent
A third party can give consent for the defendant. But if defendant is present and rejects, officer does not have consent.
To apply, there must be (1) an agency relationship or (2) defendant assumes risk
Test to determine if ID procedure should be suppressed
(1) impermissibly suggestive
(2) substantial likelihood of misidentification
Prosecution can then try to prove that it was reliable
Knock and anounce
when executing a search or arrest warrant, police need to knock and say its the police.
Failure to do so does not result in exclusionary rule.
Exclusionary Rule
Evidence obtained in violation of the 4, 5, 6 amendment may not be introduced at trial to prove guilt (unless an exception applies)
Includes fruit of the poisonous tree - secondary evidence obtained only because of initial illegally obtained evidence
Exceptions to Exclusionary Rule
Inevitable discovery—in same condition through lawful means
o Independent source—unrelated to tainted evidence
o Attenuation—passage of time and/or intervening events may purge primary taint
o Good faith
o Isolated police negligence—not enough to trigger the exclusionary rule; must be sufficiently deliberate that exclusion can meaningfully deter it
o Knock and announce—exclusionary rule doesn’t apply when police fail to knock and announce their presence
o In-court ID—not fruit of an unlawful detention
Good faith exception to exclusionary rule
Applies if officer, in good faith, relies on (1) facially valid warrant later found to be invalid, or (2) existing law later found unconstitutional
does NOT apply if
1 - no reasonable officer would rely on affidavit of warrant
2 - warrant is facially defective
3 - warrant obtained by fraud (knowingly, intentionally, or recklessly)
4 - magistrate wholly abandoned judicial role; or
5 - warrant was improperly executed
Curtilage test
1 - proximity
2- whether it is enclosed
3 - nature of the uses
4 - steps taken to prevent observation
How can defendant show ineffective assistance of counsel?
(1) rep fell below objective standard of reasonableness
(2) prejudice - reasonable probability that the outcome would have been different
If based on conflict of interest, it can presumptively be prejudicial without showing that they are innocent.
Jury pool requirement
must be a reasonable cross section of community; but the final jury panel need not be
Right to remain silent - Miranda Warning
You have to affirmatively state that you will remain silent. Mere silence does not trigger the officer’s duty to stop questioning
Three exceptions to Miranda warnings
(1) public safety
(2) routine booking questions; and
(3) undercover police
Court is required to find this to enter a valid guilty plea
Defendant entered (1) intelligently and (2) voluntarily.
voluntarily - cannot be by force
intelligently - knows and understands (i) nature of the charges, (ii) consequences of the plea, and (iii) rights the defendant is waiving
Statements made in violation of Miranda warnings
Cannot be used in prosecutor’s case in chief, BUT
can be used to impeach defendant if made voluntarily (even if made in response to questions)
Fruits of non-Mirandized statement
Derivative physical evidence IS admissible, so long as confession was not coerced. This is different than fruit of the poisonous tree from other violations.
When are involuntarily obtained statements admissible?
NEVER; not even fruits of involuntarily statements are admissible.
What are 6th Amendment Rights
right to jury, public trial, confront witnesses against him, cross-examine witnesses, be present at his own trial, and assistance of counsel for his defense
Remedy for 6th Am right to counsel violation (guilty plea and conviction)
Guilty plea - Can withdraw plea and cannot be used as evidentiary admission
Conviction - automatically reverse even without showing of unfairness
Nontrial - harmless error rule
6th right to counsel denied at a nontrial proceeding?
Denial subject to harmless error on appeal
6th right to counsel and eyewitness ID procedures
lineups - right for post-indictment, no right for pre-indictment
photo arrays - no right to counsel, but police must turn over to defense
Double jeopardy protection
1 - protection from second prosecution after acquittal
2 - protection from second prosecution after conviction; and
3 - protection against multiple punishments for same offense
Does not protect from criminal prosecution if civilly liable.
DUAL SOVEREIGNTY - can be charged/convicted in federal and state court, as well as two different state courts
Transactional Immunity
Use and derivative- use Immunity
T - fully protects witness from prosecution for crimes related to her testimony
U - only precludes the prosecution from using witness’s testimony against the witness. This is the all that is required to compel testimony. (can still go from criminal to civil)
Automobile exception
Justifies warrantless search of car if:
1 - police have probable cause to believe car contains evidence of crime; and
2 - search is limited to areas where evidence might be.
Difference between Fifth and Sixth Amendment right to counsel
Fifth - applies when suspect is in custodial interrogation before judicial proceedings. It must be affirmatively invoked.
Sixth - attaches automatically upon commencement of judicial proceedings. Applies to all critical issues, but only for the specific offense. Includes interrogation, even by an undercover police officer.
Blockburger test
This will come up in 6th Am right to counsel issues. Right to counsel attaches upon commencement of judicial proceeding for all critical issues, but ONLY for the specific offense and things that would be the same offense.
This also comes up for double-jeopardy analysis
Under the Blockburger test, two offenses are not the same if each of them have an element that the other does not.
Brady Doctrine
Prosecutor has duty to disclose material exculpatory evidence
(1) evidence that tends to show defendant is not guilty
(2) evidence that would enable defense to impeach prosecution witnesses
Prosecutor NOT required to present exculpatory evidence to grand jury
Use of prior convictions and double jeopardy
use of defendant’s prior convictions to enhance sentence does not violate double jeopardy
But, anything other than prior convictions to enhance sentence must be proved beyond reasonable doubt.
Three strikes law and cruel and unusual punishment
does not violate this clause
does not violate Double Jeopardy clause either
Two prongs to determine if Miranda warnings are needed
Custodial - substantial seizure (questioning at police station not automatically custodial) (traffic and terry stops are not custodial)
Interrogation - questions or words/conduct likely to elicit info. Voluntary statements not protected.
Admission of confession by co-defendant
This violates 6th Amendment unless neutral references to third party are used along with limiting instruction.
Or, if tried together, the confession will be admissible if the confessing co-defendant testifies at trial
Right to appeal
No constitutional right, but D does have a right to appointed counsel for first appeal as of right.
D does not have right to appointed counsel for discretionary appeal.
Anonymous tip
does not give PC for warrant for arrest.
Standard for checkpoints
(1) done in a non-discriminatory manner; and
(2) automobile reason for checkpoint (DUI yes, Drugs no)
What rights are offense specific?
Miranda rights (5th amendment) - these are not offense specific, meaning once invoked stop questioning about nay crimes
6th amendment right - only attaches to specific offenses.
When does double jeopardy protection attach?
attaches once (1) jury is sworn in (jury trial), or (2) the first witness is sworn in (bench trial)
But pleading guilty can prevent you from being charged for a greater offense later.
How can statements taken in violation of 6th Am right to counsel be used?
They can be used to impeach.
Defendant’s right to choose own counsel
Defendant has this right, unless choosing the counsel would result in a high risk of a conflict of interest arising.
Is there a reasonable expectation of privacy in bank records?
Nope
Fifth Amendment privilege against self-incrimination
Applies only to testimonial evidence.
Applies in civil/criminal, formal/informal proceedings
Applies only to individuals, not corporations. This is true even if corporate custodian would be implicated
Dog-sniff - is this a search?
Home - it is a search if it results in physical invasion
Car - if there is no reasonable suspicion that there are drugs in car, then dog-sniff only allowed if it does not prolong the time it would take to complete the terry stop.
Required for Jury Verdict
Must be unanimous, regardless of number (both federal and state)
Use of technology to search house
Cannot use technology that is not available to the general public to search a house for information that would not be discoverable without the technology.
This constitutes a search for which a valid warrant is required.
Use of hearsay and unconstitutionally seized evidence at grand jury proceeding?
Yes, this is allowed
Writ of habeus corpus
Defendants may attack even an unsuccessful appeal under a writ of habeas corpus
Civil - preponderance of evidence
(1) unlawful detention had a substantial and injurious effect on verdict; and
(2) court’s decision was contrary to law or unreasonable determination of facts.
