Crim Pro Flashcards
4th Amendment
Prohibits unreasonable search and seizers. To assert need standing and government conduct.
D must show a government agent did the search or seizure. Then must show that there is standing. Meaning the D has a reasonable expectation of privacy.
5th amendment
Seizure
By reasonable force or show of authority
under the totality of circumstances where a reasomable person feels they have the freedom to leave
Type of Seizure
- Stop and frisk
- Arrest
Warrantless arrest
Even though they have not personally witnessed the event, but if there is probable cause then they can conduct a warrently search
Stop and Frisk
If an officer has reasonable suspecion that someone has committed a crime, then can stop.
Police checkpoint
- Is it valid? as long as stopping on a nondiscriminatory basis and a reason other than general crime prevention
Traffic Stop
If a PO has reasonable suspecion or probable cause that the D has violated a traffic violation then can pull over
Search
Government violates D reaosnable expectation of privacy.
- Is there a valid search warrent? Yes then good.
Valid Warrant
- issue by neutral magistrate
- probable cause to issue the search warrant
- describe with particularility the items to be seized and places to be searched.
Execution of warrant
police should knock and announce but don’t have to
Invalid warrant
As long as police officer issues warrant in good faith that it is valid, then it is constitutional
Warrantless search
A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest
Terry frisk
Pat down for officer safety. If when patting down and find contriband, then okay. Can only search pockets if plain feel drugs
Terry Frisk of car
If a PO stops a car, if they think a weapon is in the car, then a PO can search the car for officer safety. If find contraband then probable cause for arrest
Lawful arrest
A proper arrest is one that is based on probable cause. Facts supporting probable cause may come from a number of different sources including a police officer’s personal observations.
Automobile exception
If police has reasonable basis to believe that a car contains contraband, then can any part of car. Not limited to just areas within reach of D.
Plain View
If police are in a area that they are allowed to be, and they see an item that is clearly contraband then they can take the item.
Under the plain view doctrine, if an item is in public view it may be seized without a warrant since there is no reasonable expectation of privacy for such an item.
Consent to search
Can not exceed scope and consent must be voluntary
Extegent circumstance
Many examples. Including hot pursuit, danger of destruction of evidence, public safety.
Exclusionary Rule
If the 4 amendment is violated, then evidence obtained as a result of the violation is excluded as well as fruit of the poisioness tree.
Exceptions to the exclusionary rule
- inevitable discovery
- Independent source doctrine
- passage of time
- good faith
5th Amendment
No person shall be compelled in a criminal case to testify against their self.
Right to counsel and right to remain silent.
testimonial evidence obtained by police
Miranda
If a D is undergoing custodial interegation, then police must provide Miranda.
A person is in custody if they are not free to leave or a reasonable person would believe they are deprived of their freedom.
Interrogation is express questioning or words/actions the police should know will likely illicit an incriminating response.
Miranda does not apply when
- police line up
- non government actor such as a police informant and D doesn’t know they are an informant
How to waive Miranda
D may waive but must be voluntary and not coerced.
Silence does not envoke
Once waived, then police have no duty to remind them of right
Invoke right to counsel
once invoked police can not question further. must be obvious and clear
non-offense specific meaning the person can not be questioned about any crimes.
ambigious statements do not count.
Right to maintain silence
Must be done in a clear and unambigious manner
Reapproach
If D invokes Miranda, then police may not reproach. Unless there has been a 14 day or more break in custody.
Who can assert miranda?
Only D can assert their miranda
Including a statement when Miranda is violated
- involuntary statement is never admissible, based on totality of the circumstance.
- second confessions may be admissible as long as the initial confession was an accidental forgetting of reading miranda
- voluntary statement will be excluded if no miranda, but statement can be used to impeach them.
- physical fruits of confession can be admitted if the statement was in violation of miranda
6th Amendment
Right to counsel automatically applies at all critical stages of prosecution after formal proceedings have began.
Formal proceedings have began after an indictment or formal charge.
applies to post charge lineups
If D doesnt know they are talking to an informant, then the 6 amendment still applies
Offense specific
Waive 6 amendment
knowingly and voluntarily
Lineup
Can not be unnecessarily suggestive or provide a substantial likelyhood of misidentification
Due Process burden of proof
Prosecution must prove all elements of a case beyond a reasonable doubt.
Judge can not provide a jury instruction telling the jury to presume a fact.
Sentencing
During the sentencing procress, any fact other than a prior conviction to enhance a sentence must be proven beyond a reasonable doubt. Must be submitted to jury and they decide
Post trial consideration
5th and 14th means can not subject D to double jeaperdy/
Double Jeaperdy
Protects D from
- Can’t prosecute for same offense after being acquited.
- Can’t prosecute for same offense after conviction
- Protects against multiple punishments for the same offense.
Blockburger Test
In order to make sure a crime is not the same offense, both crimes must have a proof of an element that the other does not.
Need to have an element that the other doesn’t
Greater and Lesser
D can not be charged with the greater and lesser crime.
i.e. D can not be charged for felony murder then lose and bring a separate action for robbery.
Custodial Interegation
Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody. A person under arrest is, by definition, in custody and any police questioning of the person under arrest would thus be custodial interrogation. Questioning of a suspect by a police officer subsequent to an arrest must be preceded by Miranda warnings and a waiver or the suspect’s Miranda rights are violated.
