Crim Pro

Question 1

Who are government actors?

Answer 1

Publicly paid police, on or off duty
Private citizes if they are acting at the behest of the police
Privately paid police deputized with the power to arrest
Public school officials

Question 2

What is a 4th Amendment search?

Answer 2

A 4th Amendment search is a governmental invasion of a person’s constitutitionally protected reasonable expectation of privacy

Question 3

What is the Kats test?

Answer 3

1. The defendant exhibits an actual, subjective expectation of privacy, and
2. Society is prepared to recognize that expectation as reasonable

Question 4

What is the Jones test?

Answer 4

A search occurs when the government physically intrudes (trespasses) on a constituionally protected area (person, home, papers, effect) for the purpose of obtaining information.

• Ex: Government installation of a GPS device on an individual’s vehicle—an “effect” under the 4th Amendment—and the use of that device to monitor the vehicle’s movement constitutes a search.

Question 5

What is the exeption/corollary to a 4th Amendment Search under Kats and Jones?

Answer 5

If someone knowingly/voluntarily exposes something to society, the public, or a third-party, then it is NOT a search and protected under the Fourth amendment.

Thus, society may have an expectation of privacy for someone’s fenced in backyard, but this expectation is defeated when it is knowingly exposed it

Question 6

Is a government intrusion into an open field a search?

Answer 6

No. Because open fields are not persons, houses, papers, or effects, a government intrusion upon an open field is not an unreasonable search proscribed by the test of the Fourth Amendment.

A government intrusion into a privately owned open field is also not a search because an individual may not legitimately demand privacy for activities conducted outside in fields, except in the curtilage—the area immediately surrounding the home

Question 7

What is curtilage?

Answer 7

The area immediately surrounding the home?

Question 8

How do court’s define the extent of a home’s curtilage?

Answer 8

In defining a home’s curtilage, Courts consider whether the area in question is so intimately tied to the home itself that it should be placed under the home’s umbrella of Fourth Amendment protection. In making that determination, a court should consider the following factors:
* The proximity of the area claimed to be curtilage to the home
* Whether the area is included within an enclosure surrounding the home
* The nature of the use to which the area is put
* The steps taken by the resident to protect the area from observation by passerby

Question 9

Are aerial observations of a home’s curtilage a search?

Answer 9

No. Aerial observation of a home’s curtilage is not a search if the curtilage is visible from the public navigable airspace.

An individual’s expectation that his curtilage or garden is protected from such observation is unreasonable and not an expectation that society is prepared to honor

Question 10

Is the government’s use of a thermal imagine device, or a similar device not in the general public’s use, a search under the 4th Amendment?

Answer 10

Yes, when a government actor uses a thermal imaging device, or a similar device that is not in the general public’s use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.

Question 11

Is it a search when government actors gather and sort through a person’s trash left for collection outside the curtilage of a home?

Answer 11

No, because trash left for collection on a public street is readily accessible to others, including the garbage collector, so it is not objectively reasonable to expect that its content will remain private.

Question 12

Is there a search when government actors install a tracking device on property not yet owned by the defendant and then uses the device, once in the defendant’s position, to reveal information of his public movements?

Answer 12

No. A person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. Information regarding one’s public movements could also be obtained through ordinary visual surveillance.

Different from Jones where is car was tracked 24/7 for 28 days

Question 13

Is there a search when government actors use a tracking device to obtain information about the interior of a private residence that they could not have obtained by observation from outside the curtilage?

Answer 13

Yes a search does occur. Private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is one that society is prepared to recognize as reasonable.

*United States v. Knotts *(compare with United States v. Karo)

Question 14

Is the government’s use of a pen register a search?

Answer 14

No, an individual does not generally expect the numbers he dials to remain secret, nor is it reasonable to expect privacy in information voluntarily disclosed to third-party telephone companies whose equipment completes the call

Question 15

Is the government’s use of a narcotics detection dog to sniff a person’s luggage in a public airport a search?

Answer 15

No, the use of a narcotics detection dog to sniff a traveler’s luggage in a public airport does not constitute a search under the Fourth Amendment.

Drug sniffing dogs only reveal the presence of contraband (nothing more) and people have no privacy interest in contraband.

Question 16

Is the government’s use of a narcotics detection dog to sniff a person’s vehicle during a lawful (justified at its inception) traffic stop?

Answer 16

No, as long as the sniff does not prolong the traffic stop.

Drug sniffing dogs only reveal the presence of contraband (nothing more) and people have no privacy interest in contraband.

Question 17

Does the government’s use of a narcotics detection dog to sniff a person’s vehicle after the completion of a lawful (justified at its inception) traffic stop violate the Fourth Amendment?

Answer 17

Yes, the use of a narcotics detection dog to sniff an individual’s vehicle after the completion of a lawful (justified at its inception) traffic stop constitutes an unlawful seizure under the Fourth Amendment.

Question 18

Does the use of a narcotics detection dog to sniff an individual’s home and its immediate suroundings a search?

Answer 18

Yes, the home and the curtilage are constitutionally protected areas, and bringing a drug-sniffing dog onto the premises is an unlicensed physical intrusion.

Question 19

What is probable cause for a search?

Answer 19

Probable cause for a search exists where the facts and circumstances within an officer’s knowledge and of which she has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed and that the evidence bearing on that offense will be found in the place to be searched.

Question 20

What is probable cause for an arrest?

Answer 20

Probable cause for an arrest exists where the facts and circumstances within an officer’s knowledge and of which she has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person whom the officer intends to arrest.

Question 21

What approach/standard does the Court use determining probable cause?

Answer 21

Court’s use a totality of the circumstances approach and consider factors such as (1) a reliable source of information, including the source’s basis of knowledge; (2) detailed information suggestive of criminal activity; (3) verification or corroboration of the information by the police
AND

Probable cause is an objective standard focused on what a “reasonable officer” would believe with the same knowledge and information. The subjective beliefs and motivations of any particular officer are not relevant to the probable cause determination.

Mistakes of law are permissible so long as they are reasonable (e.g., police officer reasonably believed the law required two working headlights; probable cause to stop a car)

Question 22

How does probable cause work for a narcotics detection dog?

Answer 22

In determining whether drug detection dog is reliable, the question is whether all facts surrounding dog’s alert, viewed through lens of common sense, would make reasonably prudent person think that search would reveal contraband or evidence of crime.
* Evidence of drug detection dog’s satisfactory performance in certification or training program can itself provide sufficient reason to trust his alert; if a bona fide organization has certified a dog after testing his reliability in controlled setting, the court can presume, subject to any conflicting evidence offered, that dog’s alert provides probable cause to search

Question 23

What makes a valid search or arrest warrant?

Answer 23

• issued by a neutral and detached magistrate
• supported by probable cause sworn by oath or affirmation
• particularly describe a place to be searched and the persons or things to be seized

The magistrate need not be a lawyer of judge, but he must be capable of determining probable cause and must not have financial interests or connections to law enforcement that would compromise his independence

Question 24

What are the possible issues concerning compliance with the warrant requirements?

Answer 24

• Police must knock and announce their presence before entering a residence to execute a search warrant, absent exigent circumstances
• Police may not search a person on the premises while executing a search warrant without individualized suspicion
• Police may detain a person on the premises while executing a search warrant, if necessary for officer safety or other legitimate reason

Question 25

What can justify a "no knock warrant?"

Answer 25

Exigent circumstances and reasonable suspicion that by the police knocking and announcing their presence, under the particular circimstances, it would be **dangerous or futile** or **inhibt the effective investigation of the crime** ## Footnote Evidence obtained following a "knock and announce" violation will not be suppressed under the exclusionary rule

Question 26

What authority do police have to detain individauls on the premises when effectuating a search warrant?

Answer 26

* They may not search them, unless they have individualized suspicion * The detention may involve handcuffs * The detention may last several hours * The authority of police to detain a person is limited to those within the immediate vicinity of the premises to be searched

Question 27

What if there is a mistake in the execution of a search warrant?

Answer 27

If the mistake was objectively reasonable and understandable, a mistake does not violate the 4th Amendment and does not require supression of the evidence

Question 28

What are the exceptions to the warrant requirement?

Answer 28

**E**xigent Circumstances **S**earch Incident to Lawful Arrest **C**onsent **A**utomobile Exception **P**lain View/Plain Touch **I**nventory Search **S**earch of an Automobile Incident to Arrest **S**pecial Needs * Administrative Searches * Border Crossing * Checkpoints * Schools * Government Employee * Drug Testing * Searches in Jails and Prisons * Probation & Parolee Search * Medical Procedures **T**erry "stop and frisk"

Question 29

**(E)**scapisst

Answer 29

Exigent Circumstances Exception * hot pursuit of suspected felon * emergency aid to injured occupant or to prevent imminent injury * destruction of evidence (determined by totality of the circumstances); police cannot create the exigency, but can secure/seizre premises to allow officers time to obtain a search warrant * murder scenes; when police arrive at the scene, they can perform a warrantless search to look for the killer or other victims

Question 30

E**(S)**capisst

Answer 30

Search Incident to Lawful Arrest Exception * police may search arrestee's person, pockets, personal effects and the grab space where arrestee could grab weapon or destructible evidence; do not need PC/RS for the search, just PC for the arrest * for serious offenses, the search can involve DNA evidence like cheek swabs, fingerprinting and photographing; police cannot search arrestee cell phone (most of the time police need a warrant for a cell phone search) * also may perform a protective/cursory sweep w/o warrant for places where a person may be hiding; beyond areas immediately adjoining the place of arrest, police need RS that the area could harbor someone who poses danger

Question 31

Es**(C)**apisst

Answer 31

Consent Exception * Police may perform a search w/o a warrant or PC if they have valid consent * Valid consent must be given **voluntarily** and not the result of duress or coercion, express or implied * Voluntariness is determined from the **totality of the circumstances** * A 3rd party's consent to search is valid if voluntary and reasonable to believe they have common authority over the premises * A physically present resident's refusal of consent trumps another resident's permission/consent; BUT once the objecting residence is no longer physically present, the police may search with voluntary consent of another resident with common authority

Question 32

Esc**(A)**pisst

Answer 32

Automobile Exception * police may search a vehicle if they have probable cause to believe there is evidence/contraband in vehicle * the search need not take place immediately * search may include containers/personal effects, but if probable only extends to a certain containers then the search must be confined to those containers only

Question 33

Esca**(P)**isst

Answer 33

Plain View/Plain Touch Exception * Police may seize an item in plain view if they are legitimately on premises AND it is immediately apparent that the object is evidence/contraband or otherwise subject to seizure * Police may use all senses, including smell and touch, when lawfully present * For plain touch, the evidence must be immediately apparent based on a quick touch and without further manipulation

Question 34

Escap**(I)**sst

Answer 34

Inventory Search Exception * If police are lawfully in possession of private property (e.g., impounded vehicle, purse, or bag belonging to arrestee) they may inventory the contents without probable cause or a warrant, as long as it is part of a routine police or procedure * Any evidence or contraband discovered is admissible

Question 35

Escapi**(S)**st

Answer 35

Search of an Automible Incident to Lawful Arrest Exception * Police may perform a warrantless search of a vehilce incident to a **recent occupant's arrest** if (1) the arrestee is not secured at the time of the search OR (2) it is reasonable to believe that the vehicle contains evidence relevant to the crime of arrest * Police may perform a warrantless search like this only if the police **actually arrest** one of the occupants, thus if there is a citation rather than arrest, the exception does not apply

Question 36

Escapis**(S)**t

Answer 36

Special Needs Exception * Administrative searches * Border or Its Functional Equivalent * Stops and Searches Near the Border * Checkpoints * Schools * Government Employee * Drug Testing * Searches in Jails & Prisons * Probation and Parolee Searches * Medical Procedures

Question 37

Escapiss**(T)**

Answer 37

*Terry* Stop and **Frisk (Search)** Exception In order to frisk a person who has been stopped, police must have RS that the person is armed and presently dangerous * officer need not be certain; whether a prudent person under the circumstances would be warranted in the belief that their safety is in danger To reach in and seize a weapon, officers must have RS that the item felt during the frisk is a weapon or could be used as a weapon To reach in and seize drugs/contraband, police must have PC that the item felt is drugs/contraband w/o any manipulation A *Terry* stop and frisk must be reasonably related in scope to the circumstances which justified the stop and should not be longer or more intrusive than necessary to confirm/dispel the officer's suspicion of armed and presently dangerous

Question 38

Special Needs – Administrative Search

Answer 38

Administrative Searches * Administrative searches without occupent consent, need a warrant based on PC * PC exists if the search is based on reasoanble legislative or administrative standards * Warrantless inspections are allowed for closely regulated industries

Question 39

Special Needs – Border or Its Functional Equivalent

Answer 39

Border or Its Functional Equivalent * Presumptively reasonable because at the border * Must have reasonable cause to suspect a violation of custom laws to search mail * A prolonged detention or invasive search of a **person** is justified by RS

Question 40

Special Needs – Stops and Searches Near the Border

Answer 40

Stops and Searches Near the Border * Govt. may briefly stop and question vehicle occupants w/o PC or Warrant, but to search they need consent or PC * Govt. may make a **roving** stop of a vehicle based on RS (based on the totality of the cirumcstances) but need PC or consent to search a vehicle from a roving stop

Question 41

Special Needs – Checkpoints

Answer 41

Checkpoints * Police do not need a warrant, PC, or RS to stop people at a checkpoint if they are stopped neutrally with limited police discretion * Courts weigh (1) gravity of public concern, (2) effectiveness of checkpoint; and (3) degree of intrustion on liberty

Question 42

Special Needs – Schools

Answer 42

Public school searches don’t require a warrant or probable cause—only reasonable suspicion. The search must be: * Justified at its inception (RS of rule/law violation); AND * Reasonable in scope (not overly intrusive based on age, sex, and nature of infraction * Highly intrusive searches require stronger suspicion than basic searches of outer clothing or bags

Question 43

Special Needs – Govt. Employee

Answer 43

No warrant or probable cause required for searches related to legitimate, work-related purposes (including investigations or retrieving files). * Reasonableness is the key standard—judged case-by-case based on the work environment. A search must be: * Justified at inception (reasonable grounds for work-related need or misconduct), and * Reasonable in scope (not excessively intrusive based on the purpose).

Question 44

Special Needs – Drug Testing (shools and govt. employees)

Answer 44

Schools may drug test students as a condition for participating in athletics or extracurriculars with no need to show a preexisting drug problem. Courts apply a balancing test: * Privacy interest of students * Intrusiveness of the test * Urgency and effectiveness of the school’s concerns If the school’s interests outweigh the student’s privacy, no warrant or individualized suspicion is needed. Govt. may drug test employees in high-risk, safety-sensitive roles (e.g., railroad workers, armed agents) with no need to show a preexisting drug problem. Courts apply a balancing test: * Government safety interest * Privacy intrusion on employees If the safety interest outweighs the intrusion, no warrant or suspicion is required.

Question 45

Special Needs - Searches in Jails and Prisons

Answer 45

Courts defer to correctional officials on safety policies. A rule limiting inmate rights is valid if reasonably related to legitimate penological interests. Inmates have minimal privacy rights: authorities may conduct strip searches, search cells, and monitory communications (except those barred by attorney-client privilege) without warrants or individualized suspicion

Question 46

Special Needs - Parolee and Probationer

Answer 46

Officers may search **probationers** with reasonable suspicion and no warrant. **Parolees** may be searched without a warrant or any suspicion if it’s a condition of parole. * Courts have signaled they may also uphold suspicionless searches of probationers who consented as a condition of probation.

Question 47

Special Needs – Medical Examinations

Answer 47

Patients in State-Run Hospitals * The Fourth Amendment bars state-run hospitals from drug testing patients and sharing results with law enforcement without consent, a warrant, or individualized suspicion. * If staff collect evidence solely to incriminate, they must inform patients of their constitutional rights.

Question 48

What is a Seizure under the 4th Amendment?

Answer 48

A seizure is the control by the government over a person or thing

Question 49

What is the test for determining a seizure?

Answer 49

A person is seized when a reasonble person would not feel free to leave/terminate the encounter Arrests are seiures; stops are seizures * Casual encounters may be seizures if a reasonable person would not feel free to leave/terminate the encounter

Question 50

What standard to courts apply for the seizure test?

Answer 50

Court's use an **objective standard** and look at **the totality of the circumstances** Totality of the Circumstances includes: * location of questioning * number of officers * appearance of officers * behavior of officers * tone and language of the questioning * physical contact

Question 51

What if the seizure is an arrest?

Answer 51

All arrests need PC, regardless of whether they are made with or without a warrant. * There is PC when, at the time of the arrest, the officer has knowledge of reasonbly trustwortyh facts and circumstances sufficient for a reasonably prudent person to believe that the suspect has committed or is committing a crime

Question 52

When do police need a warrant for an arrest?

Answer 52

Police need a warrant to make a routine felony arrest in a suspect's home * Police may make a warrantless arrest at a suspect's home if there are exigent circumstances and court's consider the gravity of the offense A police officer may make an arrest w/o a warrant in a public place as long as she has PC to believe the person to be arrested has commited a criminal offense

Question 53

For what crimes may a person be arrested?

Answer 53

If an officer has PC to believe that a person has commited even a very minor criminal offense in his presence, the officer may arrest the offender without a a warrant * does not matter if the arrest for a minor offense is improper under state law * Court has not decided whether police can make a warrantless arrest for a minor offense not committed in their presence

Question 54

What is a *Terry* stop?

Answer 54

A *Terry* stop is an investigative detention lasting no longer than necessary to effectuate the reason for the stop (dispel/confirm suspicion) * the duration of the stop matters, but there is no rigid measure

Question 55

What do officers need to conduct a *Terry* stop?

Answer 55

In order to make a stop, police must have reasonable suspicion of imminent or ongoing criminal activity. * Police may also stop an individual upon reasonable suspicion that he is involved in or wanted in connection with a completed felony. A person’s presence in a high-crime area coupled with evasive behavior or unprovoked flight creates reasonable suspicion of criminal activity necessary to justify a stop * Flight alone is generally not enough for reasonable suspicion, but when it is combined with other factors, such as presence in a high crime area or behavior indicating possessing a weapon, can create reasonable suspicion.

Question 56

During a *Terry* stop, can police require an individual to identify themselves

Answer 56

Yes, during a lawful stop, police may require an individual to identify himself

Question 57

Can police perform a *Terry* stop on a vehicle on the road?

Answer 57

Yes, to stop a vehicle on the road, the police must have reasonable suspicion of a driving infraction or some other violation of law RS is based on TOC and can be based off: * an anonymous 911 call reporting reckless/drunk driving * an officer's reasonable mistake as to the facts or the law

Question 58

During a lawful traffic stop (*Terry* like) may the police order the driver and passengers out of the vehicle?

Answer 58

Yes, police may order the driver and any passengers out of the vehicle.

Question 59

During a lawful traffic stop (*Terry* like) may the police order the drive and any passengers out of the vehicle? May the police search the driver and passengers out of the vehicle?

Answer 59

Yes, the police may order the driver and any passengers out of the vehicle. And yes, police may frisk the driver and any passengers upon **reasonable suspicion** that they are armed and presently dangerous.

Question 60

During a lawful traffic stop (*Terry* like) may the police search the interior of the vehicle?

Answer 60

Yes, a police officer may search the interior of a vehicle during a lawful traffic stop if she has reasonable suspicion to believe that any of the occupants is dangerous and may gain immediate control of a weapon inside the vehicle. * Any contraband other than weapons found in the course of the search may be seized and admitted into evidence at trial.

Question 61

What is the Exclusionary Rule?

Answer 61

Evidence obtained in violation of the Constitution is generally excluded from the defendant's criminal trial and cannot be used to establish guilt * does not apply when police conduct a search in objectively reasonable reliance on binding judicial precedent, even when the law is later changed while the case is pending on appeal

Question 62

Who can challenge evidence obtained in alleged violation of the 4th Amendment?

Answer 62

A criminal defendant can challenge a search or seizure and invoke the exclusionary rule only if the police violated **his or her own legitimate expectation of privacy** under the 4th Amendment ## Footnote A criminal defendant cannot challenge a search and claim the protection of the exclusionary rule simply because she was “aggrieved” by the search or was legitimately on the premises.

Question 63

Do visitors in a home have a legitimate expecation of privacy?

Answer 63

An **overnight social guest** has a legitimate expectation of privacy in his host’s home and can challenge a search of the home and claim the protection of the exclusionary rule but a **short-term business guest** does not have a legitimate expectation of privacy and may not claim the protection of the exclusionary rule ## Footnote Although a short-term business guest cannot challenge a search of his host’s home, he may still object to a search of his own person or effects located within the house because he has a legitimate expectation of privacy in his person and personal effects that is independent of any expectation of privacy he may have in his host’s house.

Question 64

Do car passengers have a legitimate expectation of privacy?

Answer 64

A car passenger, who has neither a property or possessory interest in the vehicle (like a spouse/co-owner would) does not have a legitimate expectation of privacy in the car or in areas like the trunk/glove compartment and thus cannot challenge a search of the car in which is is riding or claim protection of the exclusionary rule A car passenger may still object to a search of his **own person or effects** located within the vehicle AND the car passenger is still **"seized"** and can challenge the constitutionality of the traffic stop * if the stop is found illegal, the search and evidence it turns up can be declared inadmissible as **fruit of the posinous tree**

Question 65

Does a person in lawful possession of a rental car have a legitimate expectation of privacy in it?

Answer 65

Yes, a person who is in lawful possession of a rental car has a reasonable expectation of privacy in it, regardless of whether he is listed as an authorized driver on the rental agreement

Question 66

What are the exceptions to the Exclusionary Rule?

Answer 66

* **Independent Source** – Evidence is admissible if discovered through lawful means wholly independent of any constitutional violation. * **Inevitable Discovery** – Illegally obtained evidence is admissible if the government proves, by a preponderance of the evidence, it would have been discovered anyway by lawful means. * **Inadequate Causal Connection (Attenuation Doctrine)** – Evidence is admissible if the link between illegal police conduct and the evidence is too weak (or attenuated) to trigger exclusion. Courts consider: 1. Temporal proximity, 2. Intervening circumstances, and 3. Purpose and flagrancy of the misconduct. * **Good Faith Exception** – Evidence is admissible if police acted in good faith reliance on a warrant later found invalid, or made non-reckless mistakes. * **Knock-and-Announce** – Evidence found after violating knock-and-announce rules is not excluded.

Question 67

What is the Independent Source Exception to the Exclusionary Rule?

Answer 67

An exception that allows the admission of evidence that is discovered by lawful means wholly independent of and untainted by any constitutional violation * does not apply if information/evidence obtained from an unlawful search prompts the police to apply for a warrant or is used to secure a warrant

Question 68

What is the Inevitable Discovery Exception to the Exclusionary Rule?

Answer 68

The inevitable discovery exception to the exclusionary rule allows the admission of illegally obtained evidence if the prosecution can prove, by a preponderance of the evidence, that the illegally obtained evidence would have ultimately or inevitably been discovered by lawful means * Prosecution need not prove a lack of bad faith for this exception

Question 69

What is the Inadequate Causal Connection (Attenuation of the Taint) Exception to the Exclusionary Rule?

Answer 69

The exclusionary rule should not be applied if there is an inadequate causal connection between the illegal conduct of the police and the disputed evidence, or if the connection between the unlawful conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. Factors relevant to this determination include: * The temporal proximity between the illegal police conduct and the evidence. * The presence of intervening circumstances. * The purpose and flagrancy of the official misconduct. Miranda warnings do not always, by themselves, purge the taint of an illegal arrest, rendering an arrestee’s subsequent statement admissible. For the causal chain between the illegal arrest and the subsequent statement to be broken, the statement must not only meet the 5th Amendment standard of voluntariness, but it must also be sufficiently an act of free will to purge the primary taint of the illegal arrest. ## Footnote The exclusionary rule should be invoked with much greater reluctance to exclude live witness testimony, as opposed to an inanimate object

Question 70

What is the Good Faith Exception and Negligent Mistakes Exception to the Exclusionary Rule?

Answer 70

The exclusionary rule does not bar the admission of evidence obtained by police who, in good faith, reasonably rely on a warrant that is later found to be unsupported by probable cause or otherwise technically deficient. * The officer’s reliance on the magistrate’s probable cause determination and on the technical sufficiency of the warrant must be objectively reasonable The officer will not have reasonable grounds if: * they knew the magistrate was misled by false/reckless info * magistrate wholly abandoned their judicial role * warrant lacks PC so bad that relying on it is unreaonable * warrant is facially deficient in identifying the subject of the search with particularity ## Footnote The exclusionary rule should be invoked only for deliberate, reckless, or grossly negligent police conduct. Minor mistakes resulting from ordinary and isolated negligence, including those made by police personnel, judges, or court employees, should not trigger the exclusionary rule

Question 71

What is the Knock and Announce Exception to the Exclusionary Rule?

Answer 71

In the absence of exigent circumstances, police must knock and announce their presence before entering a residence to execute a search warrant (unless it is a no-knock warrant) BUT evidence discovered following a “knock and announce” violation will not be suppressed under the exclusionary rule

Question 72

What must the prosecution prove for a confession to be admissible under Due Process?

Answer 72

That the confession was voluntary by at least a preponderance of the evidence.

Question 73

What is the test for voluntariness of a confession?

Answer 73

A court examines the **totality of the circumstances** to determine if police overbore the suspect’s will through coercive tactics, considering factors such as * threats * prolonged detention * deprivation of needs * deception * the suspect’s age, education, and mental state.

Question 74

What standard is voluntariness determined under due process?

Answer 74

The totality of the circumstances, considering whether the suspect's will was overborne by coercive police behavior

Question 75

Is coercive police activity necessary to find a confession involuntary under Due Process?

Answer 75

Yes, some form of coercive police activity must be present to render a confession involuntary.

Question 76

When are Miranda warnings required?

Answer 76

When a person is in (1) custody and (2) subjected to interrogation.

Question 77

What four warnings must be given under Miranda?

Answer 77

(1) Right to remain silent, (2) Anything said can be used in court, (3) Right to an attorney, (4) Attorney provided if one cannot be afforded.

Question 78

What is the test for whether a person is in custody for Miranda purposes?

Answer 78

Whether a reasonable person in the suspect’s position would feel they were not free to leave, considering all circumstances of the interrogation **OBJECTIVELY.** ## Footnote The ultimate inquiry is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest, coupled with consideration of whether the relevant environment presents the same inherently coercive pressures as the type of stationhouse questioning at issue in Miranda

Question 79

What are the key factors in determining Miranda custody?

Answer 79

Location, duration, statements made, whether the suspect was released afterward, and whether the environment was coercive like a stationhouse.

Question 80

Is a traffic stop considered custody for Miranda purposes?

Answer 80

No, a typical roadside traffic stop is not considered Miranda custody.

Question 81

Is a prisoner automatically in custody for Miranda purposes?

Answer 81

No. A prisoner must be subject to interrogation in a way that creates coercive pressure beyond normal incarceration.

Question 81

What qualifies as interrogation under Miranda?

Answer 81

Express questioning or its functional equivalent—any police words or conduct they should know are reasonably likely to elicit an incriminating response.

Question 82

Does police intent or suspect’s perceptions control the definition of “interrogation”?

Answer 82

The suspect’s perception controls, but deliberate elicitation by police is strong evidence of interrogation. * Any knowledge the police may have had concerning the **unusual susceptibility** of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect

Question 83

Does Miranda apply to undercover questioning in jail?

Answer 83

No. Miranda does not apply when the suspect does not know they are speaking to a government agent.

Question 84

What must there be for a *Miranda* waiver?

Answer 84

The waiver must be voluntary, knowing, and intelligent

Question 85

Do the police need to deliver *Miranda* warnings preciely as described in the SCOTUS opinion

Answer 85

No, the police are not required to deliver the *Miranda* warnings in the precise formulation described by the Supreme Court’s decision as long as the warnings are administered in a form that **reasonably conveys to a suspect his rights** as required by *Miranda*

Question 86

What factors are relevant to determine a valid waiver of *Miranda* rights?

Answer 86

The **totality of the circumstances**, considering factors such as: age, education, experience, mental condition, understanding of rights, and absence of coercion.

Question 87

How must a suspect invoke the right to remain silent under *Miranda*?

Answer 87

Unambiguously. Vague or silent behavior is not enough.

Question 88

Once a suspect invokes the right to silence, when may police reinitiate questioning?

Answer 88

After a significant time has passed and new warnings are given, and suspect waive's right to silence

Question 89

How must a suspect invoke the right to counsel?

Answer 89

Clearly and unambiguously request an attorney.

Question 90

What happens if a suspect invokes the right to counsel?

Answer 90

All interrogation must cease until an attorney is present, unless the suspect reinitiates.

Question 91

Can police reinitiate questioning after a request for counsel?

Answer 91

Only after a break in Miranda custody of at least 14 days, AND they must still re-administer *Miranda* warnings in full and obtain a valid waiver ## Footnote The 5th Amendment *Miranda* right is NOT offense specific like the 6th Amendment right is

Question 92

Are statements taken in violation of *Miranda* automatically excluded? What about physical evidence?

Answer 92

Yes, unless an exception applies. However, physical evidence derived from the statement may still be admissible if the statement was voluntary. * If the suspect’s statement is actually coerced, however, any physical “fruit” of the statement will be inadmissible as well

Question 93

When is physical evidence admissible despite a *Miranda* violation?

Answer 93

If the statement was voluntary and not actually compelled, the physical evidence is admissible.

Question 94

Can a *Miranda*-violated statement be used to impeach?

Answer 94

Yes, if the statement was voluntary and not compelled

Question 95

What is the “second confession” rule under *Miranda*?

Answer 95

A second warned confession may be admissible if the first statement was not coerced, and there was a sufficient break or curative measures.

Question 96

What is the “public safety” exception to *Miranda*?

Answer 96

Statements made in response to questions asked for immediate public safety needs are admissible even without *Miranda* warnings

Question 97

Are routine booking questions exempt from *Miranda*?

Answer 97

Yes, as long as they are related to administrative processing and not designed to elicit incriminating responses.

Question 98

When does the Sixth Amendment right to counsel attach?

Answer 98

At the initiation of formal judicial proceedings—e.g., indictment, arraignment, or preliminary hearing.

Question 99

What conduct violates the Sixth Amendment right to counsel?

Answer 99

Deliberate elicitation of incriminating statements from the defendant after formal charges and without counsel present.

Question 100

Is the Sixth Amendment right to counsel offense-specific?

Answer 100

Yes. It applies only to the charged offense.

Question 101

Is the Fifth Amendment *Miranda* right to counsel offense-specific?

Answer 101

No, the 6th Amendment's is but not the 5th's.

Question 102

Can the police question a defendant about uncharged crimes after the Sixth Amendment right to counsel attaches for a separate offense?

Answer 102

Yes, because the right is offense-specific

Question 103

Can a suspect waive their Sixth Amendment right to counsel?

Answer 103

Yes, but the waiver must be voluntary, knowing, and intelligent.

Question 104

Is a *Miranda* waiver sufficient to waive Sixth Amendment rights?

Answer 104

Often, but not always. If police interfere with access to an attorney, the waiver may be invalid. ## Footnote For example, a Miranda waiver obtained by police who **fail to inform** a **charged defendant** that **her attorney was trying to reach her** would not constitute a valid waiver under the Sixth Amendment right to counsel. Similarly, a charged defendant has not validly waived her Sixth Amendment right to counsel when incriminating statements are deliberately elicited from her by an **undercover police officer**.

Question 105

How is the offense determined under the 6th Amendment?

Answer 105

Blockburger Test = The definition of “offense” is not limited to the four corners of a charging instrument. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.

Question 106

Can a statement obtained in violation of the Sixth Amendment be used to impeach?

Answer 106

Yes, if the statement was voluntary.

Question 107

What is a protective/cursoury sweep and what is the rule?

Answer 107

The rule for a protective sweep of a home is that if the police have reason to believe **(reasonable suspicion)** that there could be someone on the premises who could harm the officers or destroy evidence, officers can do a cursory search of the premises for the person. Search incident to a lawful arrest in a home also allows the officer to perform a **protective sweep** when making an arrest to ensure there are no other people in the house who pose a threat. This protective sweep is a **cursory inspection of those places where a person might be hiding.** * Police, without probable cause or reasonable suspicion, may look in closets and other spaces immediately adjoining the place of arrest where a person may launch an attack. * To look beyond those spaces, police need **reasonable suspicion** to believe that the area harbors an individual posing a danger to those on the scene.