Crim Pro Flashcards
Investigation
Commonly begins when a Police believes that a crime is occurring or has occurred
Elements:
-Search and seizure of persons and/or property (4th A)
-Interrogation (5th A.)
-Identification procedures (6th A., due process clause)
-Arrest and booking (5th A., due process, 4th A., 6th A.)
Adjudication
Filing of a criminal complaint Elements: -Probable cause hearing (needed if no warrant for arrest) -Initial appearance -Prelim hearing or grand jury -Arraignment -Trial -Sentencing -Appeals
Evolution of Criminal Pro
Two competing interests: liberty v security interests. Social relations (race); Tech changes
Due Process Clause
14th A gave right to “due process”
-14th came into practical effect in the last 50 years. Words are vague and ambiguous:
-strength: they are general and can apply in different circumstances
-Weakness: vague and difficult to figure out how to apply
Crim Pro is anchored in bill of rights as const.L justification
Incorporation
Theory that incorporates crim pro in the bill of rights against state actors. 14th A.
Hurtado Rule
No DP right to a grand jury
-The only thing DP requires is general applicability
Selective Incorporation Plus
Predominate theory of incorporation. Combines rights the court deems intrinsic to fundamental fairness and full incorporation of the bill of rights to the states.
Asks if any right is fundamental to our system of justice > if yes, then the right applies against the state.
4th Amendment
Protects privacy and property interests. Two clauses: Reasonableness and Warrant
Reasonableness Clause
One of the clauses in 4th A. “the right of the people to be secure in their persons, house, papers, and effects, against unreasonable searched and seizures shall not be violated”
4th A seeks to protect against illegal searches and seizures.
Warrant Clause
One of the 4th A. clauses.
“and no warrants shall issue, but upon PC, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”
Relationship Between 4th A. Clauses
- Close relationship: any search or seizure (s/s) conducted w/o a valid warrant is therefore unreasonable
- [Dominant interpretation] two independent clauses: warrant clause tells us how warrants should issue but nothing about whether or when they must issue. No reasonableness in warrant clause, can have reasonable searches that are not supported by a warrant
Exclusionary Rule
- Remedy to 4th A. violations.
- Def: The prosecution can’t introduce evidence in a criminal trial against a ∆ when the evidence was gathered by a search and/or seizure that violated the ∆s 4th A rights (i.e., the ∆ was unreasonably s/s).
- Ct created remedy.
- Designed to deter police from performing illegal/unreasonable s/s
Policy: Exclusionary Rule
It causes a high cost to crim justice b/c of a mistake the police made > Doesn’t say anything about the guilt of ∆, evidence could get thrown out even if the ∆ is dangerous/guilty.
-Tension b/w liberty and security interests
Alternatives:
1. Criminal prosecution of police who violate > police wouldn’t take any risks
2. Seek damages for violations > could result in overdeterance
3. Injunctions > time to get an injunction would be problematic
4. More administrative procedures > overdeterance
Exclusionary Rule Standing
Evidence can only be suppressed when the 4th A violation occurs against that ∆
4th A. Preliminary Questions
- Was there a search or seizure?
- If yes > ask question #2 - Was the s/s reasonable?
- Did the search comply w/ const.L stds?
Katz
“The 4th A. protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th A. protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
Search under Katz
A violation of some type of privacy
Katz Test
AND
- Subjective prong: person must have an ACTUAL expectation of privacy.
- Objective prong: this expectation of privacy must be REASONABLE (based on society’s expectations)
Policy: Katz Subjective Prong
Problems w/ this prong: different expectations of privacy b/c of the invent of tech, we get used to a lack of privacy, should our rights of privacy hinge so loosely on our expectations of privacy even if we have no choice about the shaping of these expectations?
Contingent on factors we may not be able to control, get used to a lack of privacy but we don’t like it
Policy: Katz Objective Prong
Problems w/ this prong: what is reasonable? Reasonableness can shift based on tech and we may have less privacy and not like it, maybe ct should ask if we think there should be privacy in X situation rather than if there is privacy in this situation
Katz Clause Relationship
Relationship b/w warrant and reasonableness clause is very closely connected (narrow) > a reasonable search is a search backed up w/ a warrant
Open Field Doctrine
The collection of evidence from areas not immediately adjacent to the house (not the curtilage) does not count as a search, there is no reasonable expectation of privacy for activities that occur outside in open fields
FL v. Riley
- ∆ put up privacy fences on the property; police went up 40 ft in helicopter and saw the weed, got a warrant based on these observations
- Was there a search? Ct says there was not a search b/c there was exposure of the greenhouse to an outside observer so there were no expectations of privacy > motion to suppress was denied
- Greenhouse was “knowingly exposed” > failed on threshold question of if there was a search…there was not a search so no need to ask if it was reasonable
Squeezing
Type of search. Squeezing a suitcase is a search. Physical inspection/touching = search.
Sniffing
- Dogs sniffing luggage is not a search, b/c no physical touching
- Sniffing car as part of a traffic stop to search is not a search > contraband has no privacy rights
- dog sniffing for drugs at front door is a search b/c this was a trespass since purpose was in search of info
Bugged Informant
Not a search. Declarant bears the risk of telling someone D’s criminal plans. ∆ knowingly exposed the information to the public (i.e. the gov) and privacy requires secrecy
Trash on the Curb
Not a search b/c of the 3rd party doctrine > conveyed the trash to trash co. so there was knowing exposure and there can’t be an expectation of privacy.
Counterarg: gov requires the putting of trash on curb; the line from Katz “what a person seeks to preserve as private, even in an area accessible to the public, may be const.Ly protected.” Concern w/ modern tech and phones.
Thermal Images
Search. It involves a house which is very protected under 4th A.
Rule: “Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained w/out physical intrusion…constitutes a search – at least where…the technology in question is not in general public use.”
- The last sentence is problematic b/c tech proliferates > as it becomes more widespread then our expectation of privacy changes
Electronic Tracking Devices
When placed on a car it is a physical trespass and thus a search
Jones Case
Privacy + Property
Facts: When ∆s car was in a public parking lot, police attached a GPS tracker to the car and tracked it for 28 days
Ct: this was a trespass and therefore a search, Katz never replaced protections from trespass on physical effects = this car is a physical effect and thus property
Seizures
Def: occurs when the gov exercises control over a person’s property by destroying it, or by removing it from that person’s actual or constructive possession.
Requires “some meaningful interference with an individual’s possessory interests in that property.”
Seizure of House
If police seize a house, they also seize everything in it
Seizure of Person
- Arrests are always seizures. —Being closely surrounded by police is a seizure.
- A seizure does not occur until some physical constraint of the suspect is actually achieved, whether through application of physical force OR the suspect’s submission to a show of authority
Consent Search
Always reasonable and adheres to 4th A.
Exception to s/s, warrant and PC.
std of proof: no individualized suspicion = can ask for consent to search even if cops have no suspicion of wrongdoing.
Consent must be voluntary > totality of the circumstances
Police on Bus
RULE/TEST: “Whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” AKA the Mendenhall Test
a. If yes > no seizure
b. If no > yes seizure
Ex.’s of not a seizure by police on bus:
- no weapons, no intimidating movements, aisle was clear, spoke to passengers one by one, polite
Policy: Why police don’t have to tell people they have the right to say no to a s/s?
B/c the info police get from these s/s is very valuable.
Balance of liberty and security
Warrant Requirement
Procedural Std for determining whether the sub. std is satisfied.
Def: Advance authorization from a neutral third party, namely the judiciary, to conduct a search (search warrant) or seizure (arrest warrant)
Arg. for Warrants
- provides an independent check on police
- balance of power
- helps ensure the rights aren’t violated in the first place -> prevent rather than redress violations of rights
Arg. Against Warrants
- from a practical standpoint, it can take more time to obtain,
- more cumbersome,
- one-sided and ex-parte,
- too easy to get one
- person whose rights are being violated doesn’t get a say
Warrant Req.s
- Probable cause (PC)
- Oath or affirmation (ex. Sworn affidavit)
- A particualirzed description: want to constrain discretion
a. There must be two things in description:- The place to be searched: specific address, description of automobile
- Persons or things to be seized: allows for more discretion, there needs to be some description of what’s being looked for (ex. “medical records” “drug paraphnelia”)
EXCEPTION to this requirement: Plain View Doctrine
- A neutral and detached magistrate: has to be issued by the judiciary;
a.Can’t be issued by the AG but can be issued by a ct employee
Plain View Doctrine
Applies to seizures w/o a warrant as long as there is PC, does not apply to searches.
Warrant Execution
Must be reasonable
Knock and Announce Rule
To execute a warrant at someone’s house, the police must knock, identify themselves, state their purpose for entering, request admittance, and only after being refused admittance/unable to enter can they use force to enter
- Should wait 15-20 seconds to entering would be deemed reasonable
Exception to Knock and Announce Rule
Police must have a reasonable suspicion that such knocking and announcing would be dangerous, futile, or would inhibit effective investigation.
Applies where there is: a threat of physical violence, hot pursuit (when someone flees into a home), evidence is likely to be destroyed if advance notice of entering is given
Probable Cause Std (PC)
Substantive Std.
Exists when the facts and circumstances w/I an officer’s personal knowledge, and of which s/he has reasonably trustworthy information, are sufficient in themselves to warrant a reasonable belief that:
1. In the case of an arrest, an offense has been committed and the person to be arrested committed it; and
2. In the case of a search, a specifically described item subject to seizure will be found in the place to be searched
PC Std
Totality of the circumstances
Particularized PC
RULE: Belief of guilt necessary for PC “must be particularized w/ respect to the person to be s/s.” “Mere proximity” to people independently suspected of criminal activity does not create PC.
PC in a Car
People in the same car can be searched b/c they are involved in a common enterprise and that gives police PC to arrest everyone in the car
Exigent Circumstances
4th A. Exception to Search, Seizure, Warrant. Need PC.
Elements:
a. Where delay could endanger the lives of officers or others
b. Hot pursuit of a fleeing felon into a home
c. Where evidence would be destroyed
d. Where police are performing a “community caretaking” function
Where delay could endanger the lives of officers or others
Type of Exigent Circumstance.
Ex. bomb in suitcase
Hot pusuit of a fleeing felon into a home
Type of Exigent Circumstance.
Does not apply to people committing misdemeanors.
Where evidence would be destroyed
Type of Exigent Circumstance.
i. Minor offenses in the context of home entry should not be sanctioned
ii. If they have to take time to get warrant then the evidence could get destroyed
iii. No per se exception for cases of intoxication > there are many ways you can quickly get a warrant.
Police can’t create their own exigent circumstance: “open up or we will come in” = violates 4th A.
Where police are performing a “community caretaking” function
Type of Exigent Circumstance.
i. While inside for an exigent circumstance (fight inside house) anything officers can plainly see is fair game
ii. Objectively reasonable std which is slightly lower than PC > don’t look to officers intent
iii. Public policy rng: want to encourage police to go in and help people
Plain View Doctrine Test
AND
An article is in “plain view” and subject to warrantless seizure by a police if:
i. The officer observes the article from a lawful vantage point;
1. Like an exigent circumstance, officer cannot have violated the 4th A at arriving at the place from which the evidence could be plainly viewed
ii. The officer has a right of physical access to it; and
1. Difference b/w first and second element: officer walks by house and sees weed growing in the window, needs to have a reason to go in w/o a warrant
iii. The criminal nature of the article is “immediately apparent” to the officer (i.e. PC to believe the item is evidence of a crime, w/o knowledge obtained from an unlawful search).
1. There has to be PC to believe something is evidence of a crime
Automobile Searches
Less expectation of privacy in cars.
RULE: the police can conduct a warrantless search of an automobile when two criteria are satisfied:
1. The car either stopped on the highway or is otherwise found stationary in a place not regularly used by the person for residential purposes
2. The search is limited to those areas supported by PC
Ex. Can’t look in glove compartment if looking for a violin. Can extend to whole car if info is not particularized.
Consent: Third Party Doctrine
The police may search based on the consent of someone other than the suspect, provided that this third person has common authority over the area searched
> Roommates have authority over common areas
> There’s an assumption of the risk > when you have a co-occupant then it is reasonable to think that person would let the police in
Consent: Apparent Authority Doctrine
If police reasonably believe that the person who gave consent had authority to do so, then the police were reasonable to search and the search is permissible.
Party that is refusing consent must be doing so actively > if non-consenting party is asleep or not there or arrested after not consenting (arrested for an unrelated, legit reason) then the police can still reasonably search w/ consent of the other party
Scope of Consent Search
The scope of a consent search is measured by “objective reasonableness”: a consent search extends to everything a typical reasonable perons would understand the consent offered to cover.
> ∆ can say “you can search my car but not my trunk” or “you can search the lower level of my house but not the rest of the house.”
> The scope of a search is generally defined by its express object, only search areas where the item could fit/might be > only places that have been given consent
Arrests
Always need PC.
A person is arrested when she is taken into custody by lawful authority, typically for an indefinite period of time, for the purpose of holding her to answer for a criminal charge.
Seizure.
Can be restrained through physical force or show of authority.
Remedy: challenge arrest to get SILA thrown out.
Arrest in a Public Place
RULE: a warrantless arrest for a felony in a public place based on PC is reasonable under the 4th A. Public is any place other than a private residence like a home.
In C.L.:
>Felonies: permissable w/ PC
>Misdeamnors: permissible w/ PC and committed in officer’s presence
Policy: Arrests
Court requires PC b/c the court is concerned w/ their being too much litigation if only exigent circumstances are required.
Anomaly: arrest is more invasive than a search, but there are more protections for searches
Arrest inside the Home
RULE: An arrest of a person in that person’s private dwelling, including a temporary dwelling (i.e. motel room), requires a warrant supported by probable cause (subject to the exceptions permitting a warrantless search) and reason to believe the person subject to arrest is inside the home.
If in a home for other permissible reason and sees a crime = don’t need an arrest warrant
Inside the Home of a Third Person
RULE: An arrest warrant does not allow the police to search some third-party’s house for the person subject to arrest; rather, the police must in addition have a separate search warrant to search the third-party’s house.
Ex. Police had an arrest warrant for a 3rd party and arrested the home owner when they found cocaine = violates 4th A.
