Crim Pro Final Flashcards
What did Katz do for the fourth amendment?
Established that the fourth amendment protects persons not places. Created “Reasonable Expectation of Privacy.” Phone booth case. Manifest belief of subjective expectation of privacy.
What is the test for a reasonable expectation of privacy?
- Subjective–Manifest a belief that their actions were private?
- Objective–Would a reasonable person believe they had privacy?
Open/Curtilege Test
1) Physical Intrustion–helicopter search was not a physical intrusion
2) Information gathering
Burden of Proof Required for a Search
i) State must prove the search was reasonable
ii) Defendant must prove search was unreasonable–>This is a higher burden of proof, very hard to prove
Does Police Intent matter?
NO
Electronic Recording Distinction
Is allowed with 3rd party consent because there is no reasonable expectation of privacy once you have divulged info to a third party
4th Amendment Step-by-Step Analysis
- Is it a search? a) Was there a reasonable expectation of privacy? b) was there a physical intrusion by the police?
- Was it by a state actor?
Test for Temporary Seizure
- Do you feel comfortable leaving/ignoring the officer?
2. Would a reasonable INNOCENT person feel comfortable leaving/ignoring the officer
Test for Seizure
1) Show of force?
2) Submission to the show of authority–>If suspect is fleeing then there is NO seizure because they have not submitted to the show of authority
What is the particularity requirement for a search warrant
- Where–>specific about where cops are going in order to maintain the privacy of innocent parties
- What–>Must be specific about the areas that will be searched–>cannot look in a top drawer if looking for illegal aliens
Totalities of Circumstances Test for a warrant?
- Source of information
- Amount of detail
- Corroboration–>Informant and cop, witness
- Officer’s Opinion
Standard for Probable Cause
Fair probability of criminality–>Low Threshold
What are Exigent Circumstances
Circumstances that would normally require a warrant are excused for public policy or evidence preservation reasons:
- Fleeing suspect
- Destruction of evidence
- Community Caretaking–>Not really a search/plain view applies here
- Homicide Exception
What is the requirement for Plain View?
- Legitimate justification for entry
- Immediately apparent
- Discovery is inadvertent
What is the automobile exception for warrants?
Exigency is created because of the mobility of the car. You also have a lower expectation of privacy in a vehicle. MUST be on a public roadway or in a parking lot.
*Covers bikes, motorcycles, AND RVS
Container Rule
Containers in public may not be searched without a warrant
Container in Automobile
California v. Acevedo says that containers may be searched when inside a vehicle only in the presence of probable cause. This goes beyond a traffic stop. I.e. the presence of drugs.
Exceptions to arrest warrants
Warrants in public are not required for felonies, public arrest, misdemeanors committed in officers presence
What may an officer search incident to arrest?
Terry Pat Down for weapons
Car and passenger compartment
Immediate vicinity–>Evidence preservation, officer safety
Is flight alone probable cause for an arrest?
NO
When may an officer search the passenger in a vehicle stop
only if there is reasonable belief–>Driver possessing drugs is reasonable belief
Moving Suspect during Terry Stop does what?
Makes it an arrest and no longer just a stop–>This is a seizure
What is the Terry Stop? What is the test?
Reasonable time stop. The test is the amount of time it takes to dispel suspicion quickly or mature it to probable cause.
90 minute seizure–>Not ok
20 minute seizure–> OK
Why does exceeding reasonable time matter?
Because it goes from a Terry Stop to QUESTIONING and 5th amendment rights now apply, not 4th amendment issue anymore.
What is a special needs search?
Generally suspicionless searches that would normally be a violation of 4th, but is exempted due to a special need. Examples include school searches, checkpoints, or airport searches.
What must administrative searches NOT have?
Must have NO law enforcement interest–>The intent is NOT to sent people to jail. [sometimes its a consequence]
Why is a school search a special needs search?
Because by attending school you no longer have a reasonable expectation of privacy. Schools are substitute parents–>Kids have no expectation of privacy with their parents.
Roadblocks v. Checkpoints
They are both seizures and they are both allowed. A checkpoint is a world-wide practice based on national sovereignty and a roadblock is a suspiscionless search that is intended to promote roadway safety and is less scary than being pulled over by the cops
What are examples of suspicionless searches for drug testing?
A) Railroad employees
B) Custom Agents
C) Athletes
D) Extracurricular activities–> voluntary participation is the reason these situations allow for drug testing
What is the subjective person/totalities of the circumstances factor test for consent to interrogation
- No warning is required
- In custody or not
- How invasive was the search?
- What police tactics were used?
- Reluctance of suspect to consent
- Suspects intelligence and education
- Voluntary confession–>Warnings are required
What is the difference between actual authority and apparent authority
Actual authority means the third party in fact is in control of, her own room perhaps, or mutually accessible areas such as the living room. Apparent authority is when the 3rd party does not actually have authority, but her actions, such as using a key, verbally consenting, inviting officers in, may allow the officers to infer that the 3rd party has authority to consent when in fact they do not. Apparent authority allows evidence to be admitted.
Exceptions to 4th amendment violations that would normally supress the evidence but is allowed because of which rule?
EXCLUSIONARY RULE
Define Independent source exception
Another source would lead the officers to the same evidence that was discovered during the wrongful search
What is the inevitable discovery exception
Would have been discovered through other means
Define Attenuation of the taint
There is a significant passage of time between the 4th amendment violation and the confession. [Look for intervening circumstances]
Who is the good faith exception designed for and what is it?
It is designed for the magistrate and is made to cover clerical errors that give the police false information such as a warrant that was put on the wrong person, etc. Not designed for police control
Factors to consider for fruit of the poisonous tree
a) Time between illegality and “fruit”
b) Nature of the fruit
c) Intervening circumstances
d) Witness v. suspect confession
e) Flagrancy of police misconduct
Knock and Announce Exception
Officer must KNOCK and announce himself–>Buuuuttt if he does not, the search is still good.
Impeachment
This is designed to prove an officer is lying or has made inconsistent statements
What are the restrictions of the EXCLUSIONARY RULE?
Can only be used in criminal trials
ONLY for constitutional violation claims
Does NOT apply in Grand Jury proceedings
What is the required standing to envoke the exclusionary rule?
a) target of the search?
b) Owner of the house searched?
c) Owner of the items seized?
d) OWN 4th amendment rights violated?
When does the 6th amendment right attach?
This is JDX dependent, but GENERALLY with the filing of formal charges, otherwise at indictment
What are police interrogation tactics?
- Isolation
- Guilt poisted as fact
- Minimize moral guilt
- Prolonged interrogation
- Good Cop/Bad Cop
- Tick line-ups
- Reverse Lineups
- Say that silence or asking for an attorney is an admission of guilt
What is the MIRANDA RULE?
Before a statement is made that is responsive to interrogation, made while in custody, and is testimonial may be admitted into evidence. This may only happen following an officer’s reading of the suspects MIRANDA rights. Failure to do so makes the search BAD.
What is the Custody Test for Miranda?
- Whether a reasonable innocent person would feel he’d been deprived of his freedom in a significant manner.
Factors for Significant Manner include:
a) Physically free to leave?
b) Use of force? Showing of a gun?
c) Informed that they were free to leave?
d) Who initiated the contact?
e) What was the atmosphere of the questioning?
f) When was the suspect placed under arrest?
g) What is the experience of the suspect? is this their first time in the justice system and they likely did not know their rights or are they a repeat offender more likely to know they were being interrogated.
What is the exception for undercover officers and Miranda Custody
Does NOT require Miranda Rights because the undercover officer does not create a police dominated environment
What are the requirements for invocation of counsel?
Must be explicit
Ambiguous statements “I THINK I need a lawyer, I MIGHT need a lawyer” may be ignored by police
The TEST for invocation is the willingness and desire for a generalized discussion of the investigation
What does the phrase “Miranda is not forever” mean?
Police may resume interrogation after a period of time has passed since the invocation. If the invocation is merely silence then only a reasonable time to establish two separate questionings is necessary. May only be two hours. Best clue is whether another Miranda Rights has been read. With the invocation of counsel, the police must wait until 14 days after invocation AND must wait until the attorney is present.
What kind of right is Miranda?
A TRIAL Right
What are the three necessary elements to waive one’s Miranda Rights?
Waiver MUST be:
- Knowing
- Voluntary
- Intelligent
What is the DEFAULT position of Miranda Rights?
The DEFAULT position is VOLUNTARY CONSENT. Failure to envoke silence or counsel means that you blanketly consented to the interrogation.
What are the best procedures for a good Eye Witness Identification?
A) Blind identification–>One shown after the other, not a group .
B) Sequential–>Requiring a yes or no before moving on to the next picture
C) Instructions to the witness (Specific): 1. The investigation WILL continue even if you do not identify him/her today. 2. He or she may NOT be in the lineup
What is “fair probability of criminality”? And what does it apply to?
Applies to the warrant requirement and means that the threshold requirement is a 50/50 test of innocent vs. guilty behavior.
What does the term “grab-area”/ “Wingspan” refer to?
The area within the immediate control of the arrestee. Held that this area may be searched subject to arrest in order to locate any dangerous weapon or contraband.
Is flight alone sufficient for a Terry Search?
NO. Flight alone is not enough. Must have flight PLUS other conduct. [Innocent people run too!]
What may an officer do during a Terry Search?
May ONLY pat you down for weapons, NOT drugs.
When are you not required to provide Identification?
When there is no probable cause or argument for needing your id. Ie you are just walking down the street.
When does it become a crime to refuse to provide identification?
Following a Terry Stop
Differentiate between getting fingerprint at the station and finger print in the field
At the station constitutes an unlawful detention and is impermissible under the seizure rule, finger printing is a search if done in the field.
What is impact of anonymous tip on Terry Search?
Anonymous tip alone is insufficient to warrant a terry pat down. Must have something additional
What is required for a Terry Search?
Reasonable belief that the suspect is armed and dangerous
What is NOT required for a Terry Search?
Warrant or probable cause
When may the driver be asked to step out of the vehicle?
If a traffic violation was committed the officer is within his right to ask you to step out of the vehicle.
When may the passengers be asked to step out of the vehicle?
If there is reasonable belief that one of the occupants is armed and dangers–>Sufficient for Terry Search, must exit the vehicle for a Terry Search.
How does the officer get to be able to search your trunk in a search incident to arrest?
By claiming that there was reason to believe there was evidence related to the cause of arrest inside the trunk.
How does an officer perform a Terry Search of a hard-sided bag?
By doing a quick SCAN of the inside of the bag
What is a protective sweep and what is required for it?
Gives the officer the ability to clear everyone out of the house and detain them for a Terry Search. A prior right to enter is required to do this and is granted through REASONABLE SUSPICION specifically regarding weapons, or if the officer needs to speak to/arrest someone in the house. [The policy behind this is officer safety when in the home of a suspect]
During a Terry Stop what is the most probative form of information gathering?
The questioning the do while patting you down
What must be included in a drug courier “profile” in order to make the Terry Search okay?
As long as profile includes a reasonable suspicion that the person is armed and dangerous. ie drug dealers generally have guns and BAM Terry Search for LOOKING like a drug dealer
What alone makes an officer’s stop/search reasonable regardless of the subjective intent of the officer?
Probable Cause
What is an “administrative scheme” and what is it required for and under what kind of warrant exception is it used?
It is used in Special Needs searches, specifically Administrative Searches and an Administrative Scheme is a governmental interest that outweighs the potential intrusion on privacy such as the need to Tax Liquor and therefore catch bootleggers is more important than the bootleggers and liquor stores’ right to privacy. The intent is to ensure the government is getting the tax it is supposed to–>The result is arresting bootleggers. As long as the intent is not to arrest the result certainly can be.
What is required in the necessary administrative statutory scheme for a Special Needs Search?
The scheme must :
a) Provide Notice AND
b) Limit Discretion
may also not be performed by law enforcement nor with the overall intent to arrest
What is “Programatic Purpose” as it refers to special needs
This refers to a situation in which law enforcement are involved in the carrying out of a special needs search. If the overall intent is not generalized law enforcement it may be carried out by law enforcement in order to further a heavily weighted governmental objective. If they are just trying to turn arrests into the idea of shooting fish in a barrel–>Not OKAY. An example is an escaped convict and the police set up a roadblock near the prison to check every car to make sure he hasn’t snuck into their car or isnt being smuggled by someone. The purpose is to protect the public from this escaped inmate, not to arrest the guy with marijuana in his ashtray. Strong protection is awarded to health and safety of the public as a governmental objective.
What are the weighted objectives of the Fruit of the Poisonous Tree
Deterrence v. Cost of excluding evidence
Under the good faith exception does police officer negligence amount to exclusion?
No. This is covered under the good faith exception. When the mental state raises to Recklessness or systematic negligence then this may be sufficient to exclude the evidence
What serves as a deterrent to keep the magistrate from issuing bad warrants?
- They may be removed for systematic negligence or reckless issuance of warrants
- They will not be reelected if they abuse their privilege
At what points following arrest can you 100% no longer incriminate yourself when asked to testify against a co-conspiritor
When you have already been convicted and exhausted all of your appeals. You are already incriminated. you can’t do it anymore than is already done.
What does the 5th Amendment Say?
No person shall be compelled in any criminal case to be a witness against himself
When does the 6th Amendment Attach?
JDX Dependent. Generally, when formal charges have been filed. Otherwise, at indictment
What generally makes any confession involuntary?
Any promise which induced the confession. Promise to remove death penalty from the table, promise to let you see your mom, etc.
When may the right of silence be envoked and protected vs. when may the right of an attorney presence be envoked and protected?
May ask for an attorney at any point–>Your right to one does not attach until formal charges have been filed. You make envoke your right to silence whenever the police begin interrogation beyond that of routine traffic stop requests such as license and registration
What are the arguments against Miranda?
Judicial legislation Confessions are good Criminals will run free Heightened litigation Procedure won't work-->Officers will lie
Is a Miranda warning required under the constitution?
Specifically, NO. It IS required under the Due Process Clause and Due Process IS required under the Constitution.
When does a police interrogation tactic require miranda and when is Miranda not required?
In a predominantly police-present setting such as interrogation room or precinct. This may include one or more officers dressed and identified as officers. Undercover officers are not required to give Miranda rights before interrogating because it is not a police dominated environment. This is NOT applicable if formal charges have already been filed and attorney privilege envoked.
Define Interrogation
Express questioning. Or the functional equivalent specifically: “Any words or actions that the police know are reasonably likely to elicit an incriminating response from the suspect.”
What must be shown in the instances of a confession?
Waiver was voluntary
Confession is voluntary
Which persons, by default, challenge the intelligent element for a waiver?
Young Juvenile
Mentally Handicapped
Low IQ factors
Do police officers have to tell suspects that there is an attorney IN house that may be provided?
No. Just that they are entitled to one. Do not and will not explain the process of procuring one.
