Crim Pro Flashcards
1
Q
What is the community caretaking exception reasonableness test?
A
In order for public servant exception of community caretaking doctrine to apply:
(1) Police must be able to point to specific, objective, and articulable facts that would reasonably suggest to an experienced officer that a citizen is in need of assistance.
(2) The police caretaking action must be independent from the detection, investigation, and acquisition of criminal evidence. (independent of any law enforcement concerns).
(3) The level of intrusion must match with the perceived need of assistance.
2
Q
What is the community caretaking exception balancing test?
A
Balancing an individual’s interest in being free from police intrusion with State’s legitimate interest in public welfare. First, evaluate the degree to which an officer intrudes upon a citizen’s freedom of movement and privacy. Second, courts must determine whether the degree of public interest and exigency of the situation justified the seizure for community caretaking purposes
3
Q
What are the three specific exceptions encompassed by community caretaking doctrine? What do they each contemplate?
A
(1) Emergency aid
(2) Automobile impoundment/inventory
(3) Public servant/public safety
Each exception contemplates that the police officer’s actions be motivated by a desire to render aid or assistance rather than the investigation of criminal activity.
4
Q
What happens once you’re out of community caretaking exception and into a search and seizure?
A
Once you’re out of community caretaking exception and into a search and seizure, the full panoply of the 4th amendment protections applies.
5
Q
What was the takeway from Katz?
A
The Fourth Amendment applies when there is a reasonable expectation of privacy
The Fourth Amendment protects people, not places.
Harlan’s concurrence became the takeaway from Katz. There is a twofold requirement; First, that a person have exhibited an actual (subjective) expectation of privacy, and, second, that the expectation be one that society is prepared to recognize as “reasonable”.
6
Q
What was the takeaway from Jones?
A
Trespass test, Fourth Amendment is based on property, so trespasses definitely require 4th Amendment rights. Trespasses allow fourth amendments to be found on narrower grounds.
7
Q
What is the plain view doctrine?
A
An exception to the 4th amendment. There is no reasonable expectation of privacy in matters left within plain view.
8
Q
What is the test for plain view?
A
To qualify for plain view treatment, the police officer must view the item from a place where she has a right to be.
(1) What level of effort did police have to engage in to get to the spot where they saw it? The more effort, the less likely plain view.
(2) Was any technological enhancement necessary? The more enhancements, the less likely plain view.
(3) Any physical manipulation of the item or space to make it in plain view also makes it less likely in plain view.
9
Q
What is the scale of what is outside the 4th amendment, and what is under the 4th amendment?
A
Outside the 4th Amendment: Conversations Public welfare functions (community caretaking exception) Plain view Into the 4th Amendment: Stops Search Arrest
10
Q
What is the Mendenhall test?
A
How to determine a stop: Whether or not a reasonable person in that situation would feel free to leave, or to terminate the encounter.
11
Q
When is reasonable suspicion required?
A
In order to justify a stop there has to be reasonable suspicion.
12
Q
When is an investigatory stop justified?
A
An investigatory stop is justified if at the time of the stop the officer has an articulable suspicion that criminal conduct has taken place, is occurring, or imminently will occur, and the officer’s assessment of the existence of specific and articulable facts sufficient to warrant the stop is objectively reasonable in the totality of the circumstances.
13
Q
What actors does the 4th amendment apply to?
A
The Fourth amendment only applies to state action.
14
Q
How do you determine if a private actor is acting under state action.
A
(1) Whether law enforcement actively participate in or encouraged the private search, and
(2) Whether the private individual intended to assist law enforcement or had some other independent motivation.
15
Q
What are the two definitions of reasonable suspicion?
A
Specific articulable facts that support an inference that criminal activity is a foot
Something more than a hunch, less than probable cause.
16
Q
What is the totality of the circumstances rule for reasonable suspicion?
A
Reasonable suspicion requires a determination that, under the totality of the circumstances, the officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity.
17
Q
What are factors considered in the totality of the circumstances?
A
Time of day
Area, no apparent purpose
Proximity to crime scene
Erratic behavior
Running from police
disposing/concealing objects (evidence)
Demeanor and dress (appearance)
18
Q
How are high crime areas relevant to reasonable suspicion?
A
Presence in a high-crime area can be a factor in reasonable suspicion, but standing alone is not enough for reasonable suspicion.
19
Q
How are anonymous tips relevant to reasonable suspicion?
A
Anonymous tips can contribute to reasonable suspicion only if the police can find independent corroboration of significant details, especially of predicted future actions of the suspect, in the informant’s tip.
20
Q
What are whren stops?
A
“Whren stops” = stops based on reasonable suspicion of a traffic violation, but the stop is intended to further investigation of some other crime.
21
Q
What is the minority rule regarding pretextual stops?
A
Minority (Washington) approach: A totality of the circumstances approach– Trial courts may inquire both about the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior to determine whether a stop was pretextual or not. (Reasonable officer “would have”).
22
Q
What is the majority and minority rule regarding criminal profiles?
A
Majority: does not allow the match to a police department’s criminal profile, standing alone, to constitute reasonable suspicion. Match to a profile will add weight to reasonable suspicion calculation.
Minority: rejects any reliance on the use of profiles to add any weight to facts observed in the field.
The federal law places no independent weight, positive or negative, on the existence of a profile. Some state courts reject particular components of a profile, without rejecting the reliance on profiles generally.
23
Q
What is the majority approach to relying on race in reasonable suspicion?
A
Most courts allow the police to rely on race as one among many components of reasonable suspicion, particularly if the police use the racial element of a description received from a victim or witness of the crime.
24
Q
What is the holding of Terry v. Ohio?
A
Where a police officer observes unusual conduct which leads him to reasonably conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
25
What is the plain feel doctrine?
Under the “plain feel” doctrine, if an officer conducts a properly circumscribed Terry search for weapons and feels an object that is not a weapon, the officer can seize the item if it is “immediately apparent” that the item is contraband or evidence of a crime.
26
How far do frisks extend?
Frisks extend to anything on your person, like coats and purses. In frisks of drivers it extends to the vehicle.
27
What was the holding in Edmond?
Edmond distinguishes types of permissible checkpoints. Checkpoint programs with the primary purpose to detect evidence of ordinary criminal wrongdoing are not permissible.
28
What is the majority and minority position on sobriety checkpoints?
State courts are split on whether suspicionless sobriety checkpoints violate their state constitutions, with a strong majority mirroring the federal position. A minority require individualized suspicion before a vehicle stop may occur at a sobriety checkpoint.
29
What are the warrant requirements?
To be valid, a warrant must describe with particularity the place to be searched and the evidence to be seized. It must also be issued by a neutral and detached magistrate and must be executed in a reasonable manner.
30
What is the definition of probable cause?
The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. And this means less than evidence which would justify condemnation or conviction. It has come to mean more than bare suspicion: Probable cause exists where facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.
31
What are the sources of information for probable cause?
```
Sources of information to support probable cause:
Police officer
Confidential sources
Anonymous sources
Victims
Witnesses
```
32
What is the immigration exception to relying on race?
For immigration enforcement, federal law allows explicit reliance on race or ethnicity.
33
What is the Four Corner's rule of warrant applications?
The government’s defense of the warrant must come from within the four corners of the application. Some states allow courts to supplement the four corners of the affidavit with information that could be reasonably inferred from the document, while a few others go further and say that the court is free to use outside information at its discretion.
34
What is the minority and majority test for ascertaining probable cause?
(Minority) Aguilar-Spinelli = Two prong test to determine whether probable cause exists, evaluate the informant upon whose information police relied:
Basis of knowledge
Veracity or reliability
(Majority) Gates Totality of the circumstances = Looks at the totality of the circumstances to see if probable cause exists. Can take into account the Aguilar-Spinelli prongs, but is not a rigid test.
35
What is a citizen informant? Why are they important?
Citizen informant: A citizen who purports to be the victim or to have been the witness of a crime who is motivated by good citizenship and acts openly in aid of law enforcement. Persons criminally involved or disposed are not regarded as citizen informants because they are generally motivated by something other than good citizenship.
Generally a warrant affidavit must show that the informant had given reliable information in the past or that the informant was a citizen informant.
36
Who may issue search warrants?
Most states allow only judges and magistrates to issue warrants. Some state statutes require that magistrates be lawyers. A smaller group of states allow functionaries like clerk magistrates, ministerial recorders, clerks of court, or court commissioners to issue search warrants.
37
How does timing impact the issuance of a warrant?
All but three states prescribe a deadline for serving a warrant, at which time the warrant expires. This period ranges from two days to 60 days. The typical time span is 10 days.
38
How are no-knock entries analyzed?
No-knock entries are more likely to be valid if it is included in the warrant. Absent that, reasons must be articulated that would permit a no-knock entry. For this reason, the Anyan case analyzes the exigent circumstances justifying the no-knock entry before finding the entry impermissible.
39
How do nighttime searches vary from daytime?
The majority of states have statutes or procedural rules imposing legal limits on the execution of search warrants at night beyond the usual requirements for daytime warrants.
40
What are exigent circumstances?
an exception to the warrant requirement of the 4th amendment, which applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable. This exception requires fact-sensitive and objective analysis.
41
What factors determine whether exigency exists?
The degree of urgency and amount of time necessary to obtain a warrant
The reasonable belief that the evidence was about to be lost, destroyed, or removed from the scene
The severity or seriousness of the offense involved
The possibility that a suspect was armed or dangerous
The strength or weakness of the underlying probable cause determination
42
How can an officer conduct a warrantless home search or home arrest?
In order to justify the officers’ warrantless home search the State must establish: (1) the existence of exigent circumstances, and (2) that those exigent circumstances were not police-created.
43
What is police-created exigent circumstances? What is an example?
Police created exigency = created by engaging or threatening to engage in conduct that violates the Fourth Amendment (very narrow standard). An example includes demanding to be allowed the search or else you'll return with a warrant.
44
How do administrative searches compare to criminal searches?
Searches based on special needs require administrative warrants. Required for noncriminal searches where consent is not given, and requires administrative probable cause. Such standards will vary with the municipal program being enforced, may be based upon the passage of time, the nature of the building, or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling. Administrative warrants require reasonableness test. Balancing the need to search against the invasion of which the search entails.
45
What is first party consent?
Consent of the party being searched.
46
How does consent affect the need for a warrant?
The police can conduct a full search without a warrant and without probable cause if the target of the search consents. Any valid consent to search must be voluntary.
47
What was the holding of Bustamonte?
Bustamonte: When the subject of the search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth Amendment requires that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from the totality of the circumstances. While the subject’s knowledge or a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.
48
What is the majority position on the consent analysis for searches?
Almost all state courts agree with Bustamonte that a totality of the circumstances determines whether a person consented to a search, and that it is not necessary to inform the person of the right to refuse consent.
Subjective factors: person’s age, education, and intelligence.
Objective factors: evidence of coercion, deception, threats, or undue influence by the police. Whether the police conduct could have been coercive (et. al) to a reasonable person in the defendant’s circumstances.
49
How does consent affect the scope of a search?
A consent search is valid only if the government agent conducting the search remains within the bounds of the consent granted. A reasonable person’s understanding of the request to search. If a typical reasonable person would not have understood that the request of the search extended to such a scope, the search is unreasonable.
50
What is the rule for third party consent?
A third party may consent when: Mutual use of the property by persons having joint access or control for most purposes.
When a co-tenant objects to a search, there is no longer consent for that search.
51
How may one withdraw consent to a search?
A person who has consented to a search can withdraw that consent or restrict its scope at any time before the completion of the search. The person must make an unequivocal withdrawal, through words or actions or both. An action withdrawing consent must be clearly inconsistent with the prior consent.
52
How can police conduct invalidate consent?
Flat out lying about having a warrant or being able to get a warrant invalidates consent. Police are otherwise able to make statements that encourage consent.
53
What is apparent authority? How is it measured?
Apparent authority: where the police reasonably believe that the third party who allowed the search had the authority to consent, the search is valid.
Apparent authority is judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?
54
What is a search incident to arrest?
When government agents arrest a person, it has long been clear that they may search the person “incident” to the arrest, without any probable cause or reasonable suspicion to believe that the search will produce any weapon or anything else connected to the crime. The search incident to arrest also extends beyond the body of the arrestee to include areas nearby.
55
What is the balancing test used for searches? How does physical intrusion play into the test?
Balancing test: legitimate governmental interest against the individual’s expectation of privacy
The more physically intrusive the search, the more it burdens the individual’s legitimate privacy interests.
56
What is the rule for breath tests incident to arrest?
Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.
57
What justification is required for a search incident to arrest?
Searches incident to arrest are automatic: it only requires a lawful arrest, no other justification.
58
How far may searches incident to arrest span?
The search may extend to the area within the immediate control of the arrestee, that is, the area in which the arrestee could reach a weapon or destroy evidence--their “wingspan”. The majority of states have the wingspan to be determined on a case-by-case basis. The minority, and federal standard, simply asks if the search happened within an area that was within the defendant’s immediate control in the moments before the arrest began.
Police making an arrest may search items immediately associated with the arrestee’s person, such as purses, wallets, and luggage.
59
What are protective sweeps and when can they be used?
Protective sweeps outside the area within the immediate control of the arrestee:
1. The arresting officers may look in closets and other places immediately adjoining the place of the arrest from which another person might launch an attack on the officers.
2. The officers may search other areas in the house for any persons who might pose a danger to them, but only if they have a reasonable suspicion that the sweep will reveal the presence of such a person.
In either case, the search is limited to places where a person may be found.
60
What was the holding of King Jr?
The Supreme Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.
61
What is the Schmerber test?
Schmerber test: “Probable cause plus” for especially intrusive bodily searches.
1. Clear indication that search would produce evidence of a crime
2. The test is commonplace and involves no risk or trauma
3. The test was conducted in a reasonable manner
62
What is an example of a medical search that requires probable cause plus?
The pumping of a stomach,
63
What is curtilage?
Curtilage is the area surrounding the residence, to which historically the Fourth Amendment protection against unreasonable searches and seizures has been extended.
64
How is curtilage determined?
The extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself. The central component of this inquiry is whether the area harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life. Curtilage questions should be resolved referencing four factors:
1. The proximity of the area claimed to be curtilage to the home
2. Whether the area is included within an enclosure surrounding the home
3. The nature of the uses to which the area is put
4. The steps taken by the resident to protect the area from observation by people passing by.
65
What is the Greenwood analysis?
Greenwood analysis: whether it was so readily accessible to the public that its contents were exposed to the public for Fourth Amendment purposes. (a garbage bin on the curb has less privacy expectations than a burn barrel in a rural backyard)
66
How is plain view broken down into observation and seizure?
Courts have distinguished between the plain view observation and plain view seizure. If it’s in a public area (“open fields”) the two have the same justifications. If it’s in a protected area, such as a building, most courts will require the officer to get a search warrant or explain an exception to the search warrant.
67
What is the majority and minority position for workplace searches?
Majority: whether the worker has some control over access to the area (right to exclude others)
Minority: Some courts look to the nexus between the area searched and the work space of the defendant.
68
How do workplace searches change in government offices?
If a government agent conducts a search of a government workplace, neither a warrant nor probable cause is necessary when the government is conducting:
1. A noninvestigatory work-related search (such as retrieving a file); OR
2. An investigation of work-related misconduct.
Reasonable suspicion was the best method in O’Connor v. Ortega.
69
What is the test for conducting school searches?
School searches
Nature of the privacy interest allegedly compromised by the search
Character of the intrusion imposed by the search policy
Nature and immediacy of the school’s concerns and efficacy of the search policy in meeting them
70
What is the rule for searches of prison cells?
There is no 4th amendment expectation of privacy in prison cells.
71
What is the majority and minority position on searches of open fields?
Majority says searched outside the cartilage is not a search
Minority says it might be searched if someone takes steps to indicate an expectation of privacy. (Oregon is in minority).
72
How are paper searches handled today?
Papers searches are governed more by statutes today. For example, legislatures have enabled banking customers to challenge the reasonableness of government efforts to search their banking records.
73
What paper searches has the Supreme Court squarely addressed? What haven't they?
The Supreme Court has allowed searches and seizures of business records but has not squarely addressed private papers.
74
What is the search incident to arrest standard for searches of cars?
Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if (1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or (2) it is reasonable to believe the vehicle contains evidence of the crime of arrest.
[Reasonable to believe under (2) standard; most states have concluded this equates with reasonable suspicion under Terry v. Ohio.]
75
What are the elements of an inventory search of a car?
Three requirements for a valid warrantless inventory search of a vehicle:
1. The original impoundment of the vehicle must be lawful
2. The purpose of the inventory search must be to protect the owner’s property or to protect the police from danger; and
3. The inventory search must be conducted in good faith pursuant to reasonable standardized police procedures and not as a pretext for an investigatory search.
There is no constitutional requirement that the state produce the actual written policy.
76
What are the ways to search a car?
1. Automobile exception → Probable cause
2. Search incident to arrest → Lawful arrest, either unsecured and within reach or reasonable to believe contains evidence of a crime
3. Consent
4. Michigan v. Long (Terry frisk of a car)
5. Inventory search
6. Warrant
77
How are searches of containers in cars treated?
If there’s probable cause to search the car, they can search any container within the car. If there’s probable cause only for the container,the search can only be of the container, not of the whole car.
78
What's the difference between searching a car under the automobile exception and searching it under SITA?>
If you get into the car with the automobile exception you can search for any crime/contraband that you have probable cause for.
If you get into the car with the SITA, it must be searching for evidence of the crime for which he was arrested
79
What is the federal definition of arrest?
Federal definition of an arrest “Constructive Arrest”: An arrest takes place when a reasonable person would believe that he or she is under arrest, even if the officer has not used the word arrest.
80
What is an example of factors a court considers in determining a legal arrest (taken from Bailey - not the federal standard)?
Maryland Example
Four elements to constitute a legal arrest:
An intent to arrest
Under a real or pretended authority
Accompanied by a seizure or detention of the person
Which is understood by the person arrested.
81
How do you distinguish from seizures for arrest and seizures for investigative detentions?
Factors indicating the difference between a seizure that amounts to an arrest and a seizure that is merely an investigative detention:
The amount of time the detention lasts
The techniques (such as handcuffs) used to restrain the suspect
The location of the suspect (including distance covered during any transportation of the suspect)
What the police officers say to the suspect about the purposes of the detention
82
How have arrests for misdemeanors changed from common law?
At common law, couldn’t arrest for a misdemeanor unless it happened right in front of the police. In domestic violence cases, statutes (like mandatory arrest statutes) have allowed for arrest for misdemeanors, even when committed outside the presence of the police.
83
How may police officers arrest someone who is in their home?
The Fourth Amendment prohibits law enforcement officers from making a warrantless and nonconsensual entry into a home in order to make a routine felony arrest absent exigent circumstances.
84
How are search warrants and arrest warrants different when it comes to entry of a home?
A search warrant is not constitutionally required if the entry was made into a home where one who was the subject of a felony arrest warrant resided if there was reason to believe the subject was present in the home.
Federal constitution requires an arrest warrant to justify entry into a suspect’s home to carry out the arrest, along with some reason to believe the suspect is inside.
85
How can police enter the home of a third party when making an arrest?
An arrest warrant, standing alone, is not a sufficient basis to enter the home of a third party. When an officer enters a third party’s home to arrest a suspect, he or she must have: A search warrant for the third-party home, alleging probable cause to believe that the suspect (the object of the search) is present in that location.
86
What is the procedure when suspects are arrested without warrants?
For defendants arrested without warrants, magistrates review the existence of probable cause to support the arrest immediately after the arrest has taken place.
“Gerstein hearing” must be held within 48 hours of the arrest.
If the magistrate finds no probable cause, the suspect must be released from custody.
87
What is the federal standard and a state standard for arrest citations?
4th Amendment Standard (from Atwater): If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.
Even if state law requires citations rather than arrest, there is no Fourth Amendment violation for an arrest.
State v. Bayard:
Under state statute, police have discretion to arrest, or to give citations. An officer’s exercise of discretion must be reasonable. Reasonableness requires probable cause that a traffic offense has been committed and circumstances that require immediate arrest.
88
What was the common law rule of use of force?
At common law, you could use deadly force for felonies.
89
What was the holding of Tennessee v. Garner?
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.
Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used:
If necessary to prevent escape, and
If, where feasible, some warning has been given.
90
What is the Ruby Ridge policy on use of force?
Officers may use deadly force only when necessary; when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or another person.
Deadly force may be used to prevent the escape of a fleeing subject if there is probable cause to believe:
(1)The subject has committed a felony involving the infliction or threatened infliction of serious physical injury or death; and
(2)The escape of the subject would pose a imminent danger of death or serious physical injury to the officer or another person.
If other force reasonably appears to be sufficient to accomplish an arrest or otherwise accomplish the law enforcement purpose, deadly force is not necessary.
If feasible and would not increase the danger, a verbal warning to submit to the authority shal be given prior to the use of deadly force.
91
What remedy for illegal searches and seizures?
The exclusion of the fruits of the illegal police conduct. (Exclusionary rule).
92
What is Leon Good Faith reliance?
Where a police officer conducts a search:
In objective good faith reliance upon a search warrant, duly issued by a magistrate or judge, the Fourth Amendment does not require exclusion of evidence found pursuant to the warrant, even if it is later determined that there was no probable cause for the warrant to issue.
There is no objective good faith when
1. The officer gives to the magistrate information that the officer knew or should have know was false
2. The magistrate wholly abandons the judicial role
3. The affidavit is so lacking in indicia of probable cause that it would be entirely unreasonable for a well-trained officer to believe probable cause existed; or
4. The warrant is so facially deficient that the officer could not reasonably believe it is valid.
93
What proceedings does the exclusionary rule not apply to?
Administrative proceedings
Sentencing stage (most courts, usually an exception for egregious police conduct)
Grand jury proceedings
Impeachment of defendant
94
What are the causation limits on the exclusionary rule? Define each.
Independent source doctrine - The government must show that an untainted source actually did lead the police to the evidence in question, rather than a source or process that hypothetically might have done so. Key question is whether the evidence at issue was obtained by independent legal means.
Inevitable discovery - a court may use evidence obtained as the fruit of an illegal search or seizure if the government would have learned about the evidence through proper techniques or channels without the illegal search or seizure ever taking place
Under federal law, the government must prove by a preponderance of the evidence the facts necessary to conclude that the discovery was inevitable.
A few states require the showing by clear and convincing evidence.
Attenuation - proximate cause limitation on violation (causal connection is too remote). Strieff held that discovery of an outstanding warrant and subsequent arrest and search are attenuated from the initial illegal stop. (The warrant cures the illegality)
95
What is federal standing? What are state alternatives?
Federal standing: legitimate expectation of privacy in the place searched or items seized for 4th amendment standing
State alternatives:
Automatic standing
Proprietary, possessory or participatory interest
Target standing for purposefully unlawful searches
96
How do federal courts handle standing issues from the suppression hearing to the trial?
the federal courts now allow the argument for legitimate expectation of privacy in the suppression hearing, then excludes those statements from use at trial.
97
What limitations are there on tort remedies for police misconduct?
Tort claims do not usually reach “discretionary acts” of state officials.
Law enforcement officers, as employees of the state, are entitled to limited sovereign immunity for some types of acts that are performed in the course of their official duties.
While law enforcement officers generally cannot be held liable for nonmalicious acts, they can be held liable for such acts to the extent that such acts are covered by liability insurance.
Under the doctrine of qualified immunity, an individual is immune from suit if the actions complained of were taken in good faith in the performance of one’s duties, and the acts do not violate any clearly established constitutional right. The test for the applicability of qualified immunity turns upon the objective legal reasonableness of the action assesses in light of legal rules that were clearly established at the time the action was taken.
There is absolute immunity for judges and prosecutors.
98
What was the holding of Carpenter?
The fact that cell-site location information is gathered by a third-party, does not make it outside of Fourth Amendment protection. Carpenter declined to extend Smith and Miller to cover cell phone location records. Warrants are necessary where the suspect has a legitimate privacy interest in records held by a third party.
99
What are the Carpenter factors?
Comprehensiveness and precision of surveillance
Extent to which sharing of the info with a 3rd party was voluntary
Extent to which the technology enables police to engage in surveillance they would not ordinarily have been able to conduct in the past
100
What is the third party doctrine?
The third party doctrine holds that when a person shares information with others (whether individuals or businesses), he or she assumes the risk that the information might further be shared with law enforcement and loses any legitimate expectation of privacy in the information.
101
What was the holding of Jardines?
Drug-sniffing dogs on the porch is a search, because it is in the curtilage, and it is beyond a typical license allowed.
102
What do wiretap statutes require?
Wiretap statutes require the government to minimize the number of conversations intercepted.
103
What is the federal rule on one-sided electronic monitoring? How do states interpret the rule?
Federal Rule: Warrantless electronic monitoring of face-to-face conversations, with the consent of one party to the conversation, does not constitute a search and therefore the fourth amendment is not particular
Most states follow the federal rule in interpreting their own state constitutions
104
What is the McNabb-Mallory rule? How do states interpret the rule?
Federal Rule of Crim Pro 5(a) requires an arrestee be presented before a magistrate without unnecessary delay. Any violation will require suppression of confessions.
Most states have rejected the McNabb-Mallory per se rule and include violation of timeliness requirements as one part of the totality of the circumstances indicating an involuntary confession.
105
What is the third degree?
the inflicting of pain, physical or mental, to extract confessions or statements.
106
What is the holding of Bram? How did caselaw develop following Bram?
Bram: the Fifth Amendment’s self-incrimination clause limits coercive police interrogations.
The federal standard in Bram was applied to the states through the due process clause in Brown.
Today: Convictions upon confessions beaten out of the suspect violate due process.
There must be a link between the coercive conduct of the State and the confession.
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How does the Supreme Court treat promises and threats? How have states followed?
Most jurisdictions have not taken literally the Supreme Court’s prohibition on the use of confessions obtained through any sort of threats or any direct or implied promises, however slight.
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What promises or threats are enough to warrant a confession involuntary when standing alone?
Promises to reduce or decline charges
Threats to file more serious charges
Promises to seek more or less punishment for the crime
Threats to refuse to protect the suspect from mob violence by fellow prisoners in exchange for a confession
Promises to protect an inmate from violence by fellow prisoners in exchange for a confession
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What promises or threats are allowed without invalidating a confession?
Promise to inform the prosecutor about the defendant’s cooperation in making a statement
Promise to ask the prosecutor to discuss lesser charges
Promise to arrange for treatment programs or similar activities
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How is voluntariness of a confession considered?
Totality of the circumstances.
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What characteristics of the suspect are considered in determining voluntariness of a confession?
A suspect who is especially young or who is suffering from illness or injury will be more likely to succeed in claiming that a confession was involuntary. A suspect who is mature and well educated will find it more difficult to sustain a claim of involuntariness.
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How are police lies treated?
Police lies are permissible.
Extrinsic lies are per se violations of due process, extrinsic lies are unrelated to the investigation. (But there still must be a causal connection).
Intrinsic lies are permissible, intrinsic lies are related to the evidence in the investigation.
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How is falsifying physical evidence treated?
Falsifying physical evidence is considered a violation of due process, rather than an intrinsic lie.
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What kinds of threats or lies will the court consider more coercive?
Courts find lies/threats that involve other people more coercive (i.e. your wife will be charged).
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What was the holding of Colorado v. Connelly?
wrongful police coercion is a necessary predicate to the finding that a confession is not voluntary under federal law.
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Whose burden is it to prove voluntariness of a confession, and at what level?
The prosecution must prove voluntariness by a preponderance of the evidence under the federal standard.
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What is the difference in remedies for an involuntary confession versus an unmirandized confession?
Involuntary confession under due process of law remedy = supress all evidence
Unmirandized confession remedy = suppress confession but not the fruits of the confession
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What elements are required in a miranda warning?
Right to remain silent
Anything stated can and will be used in evidence against you
Right to an attorney
Right to have the attorney present during the interrogation
If you cannot afford an attorney one will be appoint to you.
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How does silence affect a 5th amendment invocation, according to Miranda?
A valid invocation will not be presumed simply from the silence of the accused after warnings are given.
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When is one considered in custody?
Custody = circumstances that seem like an arrest
| Freedom of action is curtailed to a degree associated to a formal arrest
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What factors are considered in the totality of the circumstances considering custody?
Time
Place
Purpose of the interrogation
Persons present during interrogation
Words the officers spoke to the suspect
The officers’ tone of voice and general demeanor
The length and mood of the interrogation
Whether any restraint or limitation was placed on the suspect’s movement during interrogation
The officers’ response to any of the suspect’s questions
Whether directions were given to the suspect during interrogation
Suspect’s verbal or nonverbal responses to such directions
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When do Miranda safeguards come into play?
Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. Functional equivalent = any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.
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What warning form does Miranda require?
courts have mostly upheld variations on the miranda warnings, as long as the basic content of the Miranda warning is present.
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What is the public safety exception to Miranda?
when the questions are necessary to prevent future crimes or accidents necessary in the interest of public safety.
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How does a waiver of rights impact the admissibility of a statement?
Unless the government can prove voluntary, knowing, and intelligent waiver of these rights after such warnings are given, any statements made by the suspect are inadmissible.
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How does invocation impact a previous waiver?
Any waiver, express or implied, may be contradicted by an invocation at any time.
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What is the federal standard for invocation of Miranda rights? What is the minority approach?
Federal standard: must affirmatively and unambiguously invoke the right to remain silent. The test is objective, requiring that a reasonable police officer in the circumstances would understand the statement to be an invocation of the Miranda right.
On sufficiently clear invocation, the right to remain silent must be scrupulously honored.
Not all states have followed the federal approach requiring an unambiguous invocation of Miranda rights. Some states follow stop and clarify approach.
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What are the Mosley factors deciding question of scrupulously honored right to remain silent?
Police immediately cease questioning
Only resume questioning after a significant period of time, and give a fresh set of warnings
Limit the scope of the later interrogation to a crime that had not been a subject of the earlier interrogation.
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What factors are used to assess the capacity to waive Miranda rights?
the defendant’s prior experience with the criminal justice system
The defendant’s intelligence and education
Mental illness
Vocabulary and literacy
State of intoxication
Emotional state
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What is the Edwards rule of invocation?
A person who invokes the right to counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates ruther communication, exchanges, or conversations with the police.
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How does a waiver impact a previous invocation of right to counsel?
Once an accused has invoked his right to counsel, any subsequent waiver of rights carries a presumption of involuntariness.
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What are the two steps to determine whether a suspect’s statement is admissible when made after an earlier invocation of the right to counsel?
1. The court asks who initiated any post-invocation conversation about the crime. If it’s the police, the confession must be suppressed. If it’s the suspect, proceed to step 2
2. Ask whether the defendant waived the right to counsel knowingly, and intelligently despite the earlier invocation.
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What is the temporal limit on invocation of right to counsel?
a conversation may be initiated after there has been a break in custody.
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When does the 6th Amendment apply?
6th amendment only applies after initiation of adversarial proceedings (prosecutions) and right to counsel only applies at a critical stage.
The 6th amendment attaches automatically after the initiation of adversarial proceedings.
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How does the federal standard treat "same offense" for the purposes of the 6th amendment? What about the minority?
The 6th Amendment only applies to specific offense. A second offense is not considered the same offense, and thus allows subsequent interrogation, when each of two statutory provisions requires proof of a fact which the other does not. (However, if officers begin to question about an unrelated offense but elicit information about the same offense, the latter statements will be blocked by the 6th Amendment if the officers should have reasonable expected the conversation to take this turn.)
A number of state courts have refused to follow this, and bar questioning about another charged offense when it is factually related.
136
What is a live lineup? Photo array? Showup? How does the right to counsel impact each?
Live lineup: places a small group of persons before the witness and the witness is asked if any person in the lineup is the person who committed the crime
Photo array: the witness reviews photographs of different people to identify a suspect
Showups/Field Confrontations: the police ask the witness to view the suspect alone.
Wade: The identification lineup is a critical stage such that the 6th amendment right to counsel applies.
There is no right to counsel present for a photo array.
No state has applied the right to counsel for field confrontations or showups.
137
What is the Biggers/Manson two step test?
1. First decide whether the procedure was in fact impermissibly suggestive
2. If yes, did the objectionable procedure result in a very substantial likelihood of irreparable misidentification. To determine second question, look at the totality of the circumstances factors.
1. The opportunity of the witness to view the criminal at the time of the crime
2. The witness’s degree of attention
3. The accuracy of the prior description of the criminal
4. The level of certainty demonstrated at the time of the confrontation
5. The time between the crime and the confrontation.
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What is the New Jersey Minority rule to the Biggers/Manson test?
1. To obtain a pretrial hearing, the defendant has the intial burden of showing some evidence of suggestiveness that could lead to a mistaken identification (In general, must be tied to a system variable).
2. The State must then offer proof to show that the proffered eyewitness identification is reliable
3. The burden is on the defendant to prove a very substantial likelihood of irreparable misidentification.
4. If, after weighing the evidence presented a court find from the totality of the circumstances the defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions.
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What are system variables? What are estimator variables?
System variables: factors which are within the control of the criminal justice system
Estimator variables: factors related to the witness, the perpetrator, or the event itself over which the legal system has no control.
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How does Due Process protect suspects from impermissibly suggestive procedures?
Due process protects the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures.
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What is the Telfaire instruction?
The Telfaire instruction asks the jury to consider whether the witness had the capacity and opportunity to observe the offender, whether the identification made by the witness subsequent to the offense was the product of his or her own recollection, whether the witness made an inconsistent identification, and the credibility of the witness.
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What are the three general approaches to address the problems perceived to be inherent in eyewitness identification testimony?
Some have accepted the rationale underlying Telfaire and have required or encouraged a particularized instruction to be given.
Some leave the decision up to the discretion of the court.
Some reject outright a requirement for Telfaire-like instructions. The courts in these jurisdictions have held that the other general instructions on witness credibility and the government’s burden of proof are adequate and/or that the identification instructions impermissibly comment on the evidence.
143
What is the grand jury's usual role? What other role does it serve?
Grand jury typically sitting body to issue indictments
| In complex investigations the grand jury plays an investigative role; subpoenas witnesses and documents.
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Who is not typically present for grand jury proceedings?
No defense attorney in grand jury. Typically no judge sitting in either.
145
What is the federal and majority rule for witness warnings at grand jury? Minority? What about the 6th amendment?
Federal and majority: Grand jury witnesses do not require Miranda warnings, even when that witness is a suspect.
Minority: requires the prosecutor to inform grand jury witnesses of their right to silence, especially when the witness is a target of the investigation. (Some states require the state to notify subpoena recipients if they are targets of the investigation.)
The 6th amendment does not attach at the Grand Jury.
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What is the federal standard and minority standard for allowing defense attorneys in the grand jury?
Defense attorneys are not allowed in the grand jury in the federal system. Some states allow the witnesses’ attorney in the room, but they are not allowed to object, make arguments, or ask questions.
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Who are the rules of secrecy imposed upon at grand jury proceedings?
Statutes and rules of criminal procedure typically impose an obligation of secrecy on the grand jurors and the government attorneys but not on grand jury witnesses. About a dozen states have statutes or rules that prevent a grand jury witness from discussing her testimony with anyone other than her attorney.
148
What is the difference between use immunity, use/deriviative use immunity, and transactional immunity?
Use immunity: provides immunity only for the testimony actually given pursuant to the order compelling said testimony.
Use/derivative use immunity: Later prosecution of an immunized witness is possible, but only if the prosecution’s case is not based on the witness’s statements or on any investigative leads obtained from that testimony.
Transactional immunity: in essence provides complete amnesty to the witness for any transaction which are revealed in the course of the compelled testimony.
149
What is the federal/majority standard for grand jury witness immunity? Minority?
Federal standard: use and derivative use immunity adequately protects the privilege against compulsory self-incrimination contained within the Fifth Amendment.
Minority: requires transactional immunity; some states the type of immunity needed varies depending on factors such as the seriousness of the offense being investigated.
150
What is the particularity requirement for warrants from Steele?
Particular enough to allow the searching officer with reasonable effort to ascertain and identify the place intended.
