Crim PRO Bar Flashcards
4th Amendment…
prohibition against unreasonable search and seizure
5th Amendment…
1) privilege against compulsory self-incrimination
2) prohibition against double jepoardy
6th Amendment…
1) righ tto a speedy trial
2) right to a trial by jury
3) right to confont witnesses
4) right to assistance of counsel
8th amendment….
prohibition against cruel and unusual punishment
1) the death penalty
2) prisoner rights
Exclusionary Rule:
remedy of american con law procedure where someone who has ben the victim of an illegal searh or a coerced confession can have the product of that illegal search or that coerced staement exlcuded from any subsequent criminal prosecution.
5 Limitations on exclusion (evidence can come in despite some illegality.)
1) exclusion does not apply to GRAND JURY proceedings.
* a grand jury Witness may be compelled to testify based on illegally seized evidence.
2) Exclusion is not an available remedy in civil proceedings
3) Exclusion is not an available remedy in parole revocation
4) exclusion does not apply to the use of excluded evidence for impeachment purposes
* ALL illegally seized evidence may be admitted to impeach teh credibility of the D’s trial testimony. Miranda violations qualify here (info obtained in violation of miranda excluded, but info can still come in to impeach trial test. of D when D takes stand); This only applies to D’s trial testimony, not the testimony of other defense witnesses.
5) Exclusion is not an available remedy for violations of the Knock and Announce Rule in execution of search warrants.
The Fruit of the Poisonous Tree Doctrine
Doctrine will NOT only exclude illegally seized evidence, but will also exclude ALL Evidence obtained or derived from Police Illegality.
This doctrine does not apply to Miranda violations, unless the police act in bad faith in obtaining such information.
3 ways Gov can break chain between an original unlawful police action and some suposedly derived piece of evidence.
*break the link between the fruit and the tree of police illegality..
‘3 IN’s of Breaking the Chain to the Fruit’
1) Independent Source
2) Inevitable Discovery
3) Intervening Acts of Free will
1) Gov could show that it had an ind. source for that evidence, ind. of original police illegality.
2) Inevitable discover, police would have inevitably discovered evidence anyway
3) intervening acts of free wil on part of Def. (voluntary)
Exclusionary Rule and Convictions
- A conviction will not necessarily be overturned b/c improperly obtained evidence was admitted at trial
- On appeal, a court will apply the harmless error test
- under the test, a conviction will be upheld if the conviction would have resulted despite the improper evidence.
Fourth Amendment (bulk of crim pro on bar)
Protects citizens from unreasonble searches and seizures
1) Arrests and Detentions
2) Investigatory Detentions (terry stops)
3) Search and Seizure
4) Wiretapping and Eavesdropping
Arrests and Detentions 4th Amend issue (1 of 4)
Any arrest must be based on PROBABLE CAUSE.
Arrest warrants are generally not required before arresting someone in a public place.
A non-emergency arrest of an individual in his home DOES REQUIRE an arrest warrant.
Station House Detention: Police need probable cause to arrest you and compel you to come to the police station either for FINGERPRINTING or INTERROGATION. (don’t need prob cause to ask you, but to compel/arrest you)
Investigatory Detentions (terry stops) 4th Amend issue (2 of 4)
Police have authoirty to BRIEFLY DETAIN a person even if they lack probable cause to arrest. To make a TERRY STOP, police must have a reasonable suspicion supported by Articuable facts of criminal activity (*hunch is never enough)
*whether police have reasonable suspicion depends on the totality of the circumstances.
Investigatory Detentions (terry stops) 4th Amend issue (2 of 4)
Auto STops….
- AUTO STOPS: police may stop a car if they have at least REASONABLE SUSPICION that the law has been violated.
- **EXCEPTION - checkpoint road blocks. DUI Checkppoint or road block must be NEUTRALLY APPLIED. Can’t pick and choose. Stop every 3rd car.
Investigatory Detentions (terry stops) 4th Amend issue (2 of 4)
Traffic Stops and Police Dogs..
During routine traffic stops, a sniff is not a search so long as police do not extend stop beyond time needed to issue a ticket or conduct normal inquiries.
- 2013 SCOTUS: during a traffic stop, a dog ‘alert’ to the presence of drugs can form the basis for Probable Cause for a search.
- BUT, 2013 SCOTUS also held the police, w/o probable cause, cannot use a drug sniffing dog directly outside the home of a suspected drug dealer.
Search and Seizure (4th Amend Issue 3 of 4) *most often tested on essay; 6-7 MBE.
Model to Answer any search and seizure Q: 5 STEPS
STEP 1) Government Conduct?
STEP 2) Reasonable expectation of privacy?
STEP 3) Did the police have a valid search warrant?
STEP 4) If warrant is not valid, does an officer’s good faith defense save the defective search warrant?
STEP 5) If a warrant is invalid and cannot be saved by good faith defense or if police never had any warrant at all, then you move to last step: EXCEPTIONS TO THE WARRANT REQUIREMENT.
Search and Seizure (4th Amend Issue 3 of 4) STEP 1: Government Conduct?
- publicly paid police, on or off duty
- any private individual acting at the direction of the public police turns into Gov conduct.
- — privately paid police actions do NOT constitute gov conduct UNLESS they are deputized with the power to arrest you.
- —- Examples of privately paid police
(a) Store security guards
(b) subdivison police
(c) Campus police (assume not deputized)
Search and Seizure (4th Amend Issue 3 of 4) STEP 2: REasonable Expectation of Privacy (STANDING, must have standing to object to gov search)
Automatic categories of standing:
1) if you OWN THE PREMISES searched you always have standing to object to the search of the place you own.
2) You LIVE ON the premises searched, whether you have ownership interest or now. Ex: Grandchild living at Grandma’s
3) OVERNIGHT GUESTS have standing to object to the legality of the search of the place they are staying.
Sometimes categories of standing
1) if you own the property seized you have standing ONLY IF you have a reasonable expectation of privacy in the item or area searched.
Search and Seizure (4th Amend Issue 3 of 4) STEP 2: Reasonable Expectation of Privacy (STANDING)
The NO STANDING categories…
Where you have NO expectation of privacy and therefore no standing for anything that you HOLD OUT TO THE PUBLIC everyday.
Seizure of the following implicates NO RIGHT TO PRIVACY:
1) sound of your voice
2) style of your handwriting
3) paint on outside of your car
4) account records held by a bank.
5) monitoring the location of your car on a public street or in your driveway
* NOTE, 2012 SCOTUS (Jones Case) held that installation of GPS on suspects car constitutes a search within the 4th Amendment so need PROBABLE CAUSE.
6) Anything that can be seen across the Open Fields (Open Fields Doctrine)
7) Anything that can be seen from flying over in the PUBLIC AIR SPACE
8) The Odors emanating from your luggage or car.
9) Your GARBAGE SET OUT ON THE CURB for collection (not garbage beside the house)
Search and Seizure (4th Amend Issue 3 of 4) STEP 3: Did Police Have Valid Search Warrant?
2 P’s: Probable Cause and Particularity required for facially valid search warrant
(WHY, WHO, WHERE)
1) standard for probable cause: a FAIR PROBABILITY that contraband or evidence of a crime will be found in the area searched.
2) PARTICULARITY: warrant must state with particularity the PLACE to be searched and the THINGS to be seized.
3) Warrants and the use of informants
- –a) if officer’s affidavit or probable cause is based on informant info, its sufficient is determined by the TOTALITY OF THE CIRCUMSTANCES.
- —–b) An informant’s credibility, and basis of knowledge are all relevant factors in making this determination.
- ——c) Valid warrant can be based IN PART on an informant’s tip even though the informant is anonymous (can’t be used solely for warrant, but in part)
Search and Seizure (4th Amend Issue 3 of 4) STEP 3: Did Police Have Valid Search Warrant?
No Knock Entry permitted in execution of search warrants if EXIGENT Circumstances exist….
EXIGENT Circumstances exist when:
1) Cop need not knock and announce if knocking and announcing would be DANGEROUS, FUTILE, OR INHIBIT THE INVESTIGATION.
2) Biggest fear of inhibiting the investigation = destruction of evidence
Search and Seizure (4th Amend Issue 3 of 4d) STEP 4: If warrant not valid, did cop’s GOOD FAITH DEFENSE save the defective search warrant?
General Rule: Officer’s good faith reliance on search warrant overcomes defects with the probale cause or particularity requirements.
Search and Seizure (4th Amend Issue 3 of 4) STEP 4:
Four exceptions to a good faith reliance by cop on defective search warrant…
1) affidavit underlying that warrant is so lacking in probable cause that no reasonable cop would have relied on it.
2) affidavit underlying the warrant is so LACKING IN PARTICULARITY that no reasonable officer would have relied on it.
3) the police officer or prosecutor LIED TO OR MISLED the magistrate when seeking the warrant.
4) If the magistrate is BIASED, and therefore has wholly abandoned his or her neutrality.
Search and Seizure (4th Amend Issue 3 of 4) STEP 5: Warrant invalid and can’t be saved….
EXCEPTIONS to the WARRANT REQUIREMENT
1) Search incident to arrest
2) The automobile exception
3) Plain View
4) Consent
5) Stop and Frisk (terry stop)
6) Evanescent Evidence, Hot Pursuit, and Special Needs Searches
Search and Seizure (4th Amend Issue 3 of 4) STEP 5;
EXCEPTIONS to the WARRANT REQUIREMENT, #1: Search incident to arrest
1) arrest must be lawful. If arrest unlawful then search unlawful.
2) arrest and search must be contemporaneous in TIME AND PLACE.
3) Geographic Scope limitation: Person can be searched and areas within the person’s WINGSPAN.
4) The GANT RULE - SEarch incident to arrest and autos, police may search the INTERIOR of the Auto Incident to arrest ONLY IF (i) arrestee is unsecured and still may gain access to interior of vehicle OR (ii) police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle (ex: DUI arrest, can search vehicle for evidence; not for speeding arrest). INTERIOR DOES NOT INCLUDE TRUNK.
if SEARCH valid, ANY contraband will be found admissible (gun and drugs found during DUI search)
Search and Seizure (4th Amend Issue 3 of 4) STEP 5;
EXCEPTIONS to the WARRANT REQUIREMENT, #1: Search incident to arrest — GANT RULE —- Community Care Taker Exception
Community Care Taker Exception to GANT RULE
Justifies a warrantless search if an officer faces an emergency that threatens the HEALTH AND SAFETY of an individual or the public.
Sometimes called the EMERGENCY AID EXCEPTION
NOTE: 2014 SCOTUS - police, w/o warrant, may not search digital info on a cell phone seized from an arrested individual.
Search and Seizure (4th Amend Issue 3 of 4) STEP 5;
EXCEPTIONS to the WARRANT REQUIREMENT, #2: The Automobile Exception
The Automobile Exception
1) in order for cops to search anything or anybody and full under auto exception must have PROBABLE CAUSE.
2) BUT ONLY IF, before searching anybody or anything the police have probabl cause then they can search the ENTIRE CAR. Includes entire interior compartment and trunk
Police may also open any container, package, or luggage, without a warrant, that could reasonably contain the item they had probable cause to look for wehether that package is owned by the passenger or the driver.
3) probable cause necessary to justify the warrantles search of auto under this exception CAN arise AFTER THE CAR IS STOPPED, BUT the probable cause must arise before anything or anybody is searched.
