Crimes Crim Pro Flashcards
What is the 4th Amendment right binding on the states through the DPC of the 14th Amendment?
Prohibition against unreasonable search and seizures
What are the 2 clauses in the 5th Amendment binding on the states through the DPC of the 14th Am?
Privilege against self incrimination
Prohibition against double jeopardy
What are the 4 clauses in the 6th Amendment that are binding on the states through the DPC of the 14th Amendment?
- Right to counsel
- Right to a speedy and public trial
- Right to confront witnesses
- Right to a trial by jury
What are the 2 clauses in the 8th amendment that are incorporated against the states via the Due Process Clause of the 14th Amendment
Prohibition against cruel and unusual punishment
Prohibition against excessive fines
- Note: The Constitution provides the floor of protection for criminal defendants. States are free to granter broader protection, and many do.
What are the 2 constitutional rights that have not yet been incorporated against the states?
(1) Right to indictment by grand jury for capital and infamous crimes
(2) Prohibition against excessive bail
What is the overall 4th Amendment rule?
The Fourth Amendment prohibits against unreasonable search and seizures.
When does a seizure occur?
A seizure occurs when a reasonable person would not feel free that they can leave or terminate the encounter.
- Note: Differs from arrest in that in arrest, person taken into custody.
- Note: Arrest must be made on probable cause.
What is probable cause?
Facts or knowledge sufficient to reasonably believe the suspect committed the crime. Probable cause is based on the totality of the circumstances.
What is the rule on when a warrant is required for arrests?
A warrant is not required when arresting a person in a public place, but a warrant is required when arresting someone at their home, unless an exigent circumstance applies.
Under a Terry stop, when may a police obtain a person for investigative purposes? 2 requirements, what is the test
(1) Reasonable suspicion of criminal activity; AND
(2) Supported by articulable facts (a hunch is insufficient)
A totality of the circumstances consideration is used.
Under a Terry stop, what may the police do if they have a reasonable suspicion that the person is armed?
Police may conduct a protective pat down of the outer layer of clothing if they have reasonable suspicion that the person is armed and dangerous. If, based on plain feel, the officer feels other contraband (e.g., drugs or a gun), the officer may reach into the clothing and seize the item.
Plain feel – instantly recognizable
o Note: A full search of the person is only authorized pursuant to a valid arrest (i.e., SILA).
What is the rule on when a Terry stop is justified based on an informant tip?
Where reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (including predictive information) to be sufficient.
What is the duration and scope of a Terry stop?
The police must act in a diligent and reasonable manner in confirming or dispelling their suspicions.
- The police may ask detainee to identify themselves and may arrest detainee for failing to comply with request. The detention will turn into an arrest if during the detention other probable cause for arrest arises.
May police seize property during a Terry stop?
Brief property seizures are similarly valid if based on reasonable suspicion.
Note: Police cannot search bag unless pat down for gun, feel drugs. Now plain feel applies.
What is the rule relating to dog sniffs during a Terry stop?
During routine traffic stops, a dog sniff is not a search, so a dog may alert to the presence of drugs and can form the basis for probable cause for a search.
- Note: Police must not extend beyond time needed to issue a ticket or conduct normal inquiries.
- Compare: Without probable cause, police cannot use a drug sniffing dog on the curtilage of one’s home.
What happens when an officer makes a mistake of law regarding a traffic stop?
A police officer’s mistake of law does not invalidate a seizure so long as the mistake was reasonable.
* Example: Believing a vehicle must have 2 working brake lights
When do car passengers have standing against a search or seizure following the stop of a car?
Only if the stop was wrongful is there standing. Otherwise, a passenger typically has no REP in another person’s car.
What are the 3 requirements to make a road block or check point constitutional?
(1) Neutral standard;
(2) Designed to serve a problem closely related to automobiles; AND
(3) Not related to looking for incriminating information.
- Example: Every car, drunk driving.
- Example: Roadblock to search cars for illegal drugs is not OK.
When may an officer order passengers out of a car?
(1) Lawful stop of a vehicle; AND
(2) In the interest of officer safety.
When may an officer frisk car occupants and search the passenger compartment for weapons?
If officers believe people are armed, even if they are out of the car.
What is the rule on pretextual stops?
A pretextual stop will not invalidate a stop so long as the officer had probable cause to believe a driver violated a traffic car.
o Example: Bob speeding. Lawful stop. Cop really wants to stop him because he thinks he is druggie. OK. And anything officer sees in plain view is now admissible.
What is the rule on detaining someone so that you can obtain a warrant?
If police have probable cause to believe a suspect has hidden drugs in their home, they may, for a reasonable time, prevent the suspect from going into the home unaccompanied so that they can prevent the suspect from destroying the drugs while they obtain a search warrant.
May officers search occupants of a premise when they have a warrant to search the house?
No. However, the police can detain occupants of the premises during a proper search.
Note: Seizure of a person by subpoena for a grand jury appearance is not within the Fourth Amendment’s protection.
When may an officer use deadly force?
Under the 4th Amendment, there is a seizure of a person when an officer uses deadly force, and the officer may not do so unless fleeing felon which poses danger to their own lives or the lives of others.
Approach for question
- 4 Step Approach for Evidentiary Search and Seizure Issues
o (1) Government Action
Government action occurs when there is a search or seizure by a police officer.
o (2) Standing
Rule: A person must have standing to object to a government search. A person has standing if: - (1) The search violate the defendant’s reasonable expectation of privacy; OR
- (2) Physical intrusion into a constitutionally protected area to obtain information.
If yes, the search is challengeable under the Fourth Amendment.
If not, the search is challengeable under the Fourth Amendment.
o (3) Did the police officers have a valid warrant?
A warrant is valid when it is issued by a neutral and detached magistrate on a showing of probable cause and particularity.
If not, does an exception apply?
o (4) If the police officers did not have a valid warrant, does the search or seizure fall within one of the 6 exceptions to the warrant requirement?
What is the rule on government conduct?
Fourth Amendment protects only against government conduct (police officers, government agents, or private individuals acting at the direction of the public police).
Fourth Amendment does not apply to searches by privately paid police
Store security guard
Subdivision police
Campus police
When does a person have standing to make a 4th Amendment claim?
To have a Fourth Amendment right, a person must have a reasonable expectation of privacy to the place searched or item seized. The determination is based on the totality of the circumstances.
o A person HAS a reasonable expectation of privacy in what?
Home (including curtilage)
Hotel
Office
Luggage
Cell-site location information
GPS device on one’s car
Smartphone data including text messages
Government wiretap
Pen register (device that records only phone numbers dialed from a phone)
Use of equipment not available to general public
* Examples
o Thermal image to take photographs of the inside of a home
o Drug sniffing dog on the patio
* Does not apply to airspace or drug sniffing dog in open fields
Place searched if overnight guest in owner’s home
o A person has NO reasonable expectation of privacy in:
General rule
* A person does not have a reasonable expectation of privacy in objects held out to the public.
Anything visible from public streets or sidewalks (even if in home)
Anything visible from open fields (even if open field on private property)
* Trespass alone NOT a search so long as it is not in the home or curtilage.
* NOTE: REP in a closed shed on open field. Officers can smell outside shed but cannot enter without a warrant (even with PC).
Abandoned property (e.g., garbage set out on the curb for collection)
Anything visible from public airspace as long as within legal airspace and the lens is in general public use
Anything seen from public space as long as lens in general public use
Anything visible to a police officer if equipment is in general public use
Anything revealed to a third party
* Sound of your voice
* Style of your handwriting
* Location of your car on a public street or in a driveway
* Paint on the outside of your car
* Third party wearing a wire
* Bank records
* Internet subscriber information
* IP address
Tracking device snuck onto something before defendant obtained it
Odors emanating from one’s luggage or car
Passenger in someone ELSE’s car
Note: A person generally does not have standing to challenge a warrantless search of another’s home unless the home was also his home or he was at least an overnight guest in the home. Thus, if you have drugs and run into stranger’s home, police can enter the home and get you, because you do not have a reasonable expectation of privacy in the stranger’s home, because you don’t own it, and you aren’t an overnight guest there. This applies even though the police should have gotten a warrant to search for the stranger in the stranger’s home.
o A person MAY have a reasonable expectation of privacy in:
Property seized
If a person owns a property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched.
* Example: Bob walking down street. Sees cops. Puts his drugs in girlfriend’s purse. Cops search her purse. Bob does not have standing to object to the search of girlfriend’s purse.
What are the 3 requirements for a valid warrant?
A facially valid search warrant requires:
(1) Issued by a neutral magistrate;
(2) Based on probable cause; AND
(3) Describe place or property to be searched with particularity.
Note: A state attorney general is not neutral.
What criteria do you look for when an informant tip is provided to police?
Rule: An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Two factors to consider:
o (1) Reliability and credibility
o (2) Basis for knowledge
Note: The informer’s identity generally does not need to be revealed.
What are the 3 requirements to invalidate a warrant when an officer provides a false statement in the affidavit?
A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes:
* (1) False statement in affidavit by officer;
* (2) Intentionally or recklessly; AND
* (3) Statement material to finding of probable cause.
- Note: Challenges are rarely successful. If the officer believed the lie, it is not a false statement. If they intentionally lied but it is not material, the warrant is still good.
What is the good faith exception?
Evidence obtained by a facially valid warrant may be used even if the warrant was not supported by probable cause.
- Note: This exception does not apply if the police failed to obtain a warrant in the first place.
o 4 Exceptions to Officer’s Good Faith Reliance on a Defective Warrant (excl. rule does not apply)
Rule: The exclusionary rule does not apply when the police arrest someone in good faith reliance thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.
o 4 Exceptions to Officer’s Good Faith Reliance on a Defective Warrant (excl. rule does not apply)
(1) Affidavit so lacking in probable cause
(2) Affidavit so lacking in particularity
(3) Officer or prosecutor lied to or misled magistrate
(4) Magistrate biased and abandoned neutrality
What are the 3 requirements to properly executing a warrant? and when is there an exception to the knock requirement?
To properly execute a search warrant, the government agent conducting the search must:
- (1) Perform within a reasonable time;
- (2) Knock and announce; AND
(no need to knock and announce, if reasonable belief would be dangerous, futile or would inhibit the investigation)
Note: This factor alone will NOT make the evidence inadmissible. Exclusionary rule does not apply here. - (3) Limit scope of search to warrant.
o Example: Cannot search for gun in a jewelry box.
o Note: Police may seize any contraband or fruits or instrumentalities of a crime they discover, whether or not specified in the warrant.
Private Citizens
* Rule: Private citizens may not execute a warrant.
Third Parties
* Rule: A third party may accompany the police to aid in identifying stolen property.
Search of Persons Found on Premises
* Rule: A warrant to search for contraband allows the police to detain occupants in the immediate vicinity but does not allow police to search them (unless named in the warrant).
* Note: The warrant also does not give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed.
* Recall: If a police officer has reason to believe any person present is armed and dangerous, the officer may conduct a Terry pat down for weapons.
What is the mnemonic for the exceptions to the warrant requirement?
ESCAPES
What is the general statement to make before presenting an exception to the warrant requirement?
All warrantless searches conducted by law enforcement are unconstitutional unless they fit into one of 7 exceptions to the warrant requirement.
What are the 7 exceptions?
Exigent circumstances (fleeing felon, danger of destruction of evidence, emergency aid)
SILA
Consent
Automobile
Plain view
Evidence from administrative search
Stop and frisk
What is the fleeing felon rule? What is the exception? What is the rule of thumb? What may the officer to when inside the premises?
Rule: Police officers in hot pursuit of a fleeing felon may make a warrantless search or seizure and may pursue the suspect into anyone’s dwelling.
Exception
Person suspected of misdemeanor
o Rule of Thumb
Police must be within 15 minutes behind fleeing felon to justify exception.
o Inside Home
Officer can ensure 2 things
* The arrestee is the only person present
* No weapons present that may imperil the officer’s safety
- Recall: Stay within scope. Cannot search drawer b/c felon can’t fit.
o Plain view applies: Any evidence they see in plain view will be admissible.
What is the exception on destruction of evidence?
Rule: Officers may make a warrantless search or seizure to secure evidence that will be destroyed by delay.
- Example: Scrapings of tissue under suspect’s fingernails is OK.
- Example: Blood alcohol test if not OK but breath alcohol test OK.
- Note: Also called evanescent evidence
What is the rule on emergency aid?
Rule: The police do not need a warrant when acting in emergency situations threatening immediate health or safety.
- [NO PC required] + preventing injury
- Officer’s belief is measured objectively; subjective motivation irrelevant
- Note: Injury does not need to be life-threatening. Injury could be present or about to happen.
What is the rule on the SILA exception - search incident to a lawful arrest?
Rule: The police may conduct a warrantless search incident to a lawful arrest that includes:
* (1) Searching the person; AND
* (2) Searching the areas within the person’s wingspan (see car addition below)
- The police may also make a protective sweep of the area beyond the defendant’s wingspan if they believe dangerous accomplices may be present.
Note: The search must be contemporaneous in time and place of the arrest, but with respect to searches of cars, the term contemporaneous does not mean simultaneous.
During SILA, what is the rule on searching the car after an arrest? In what 2 situations is this allowed?
After arresting the occupant of a vehicle, the police may search the interior of the vehicle incident to the arrest if either:
o (1) The arrestee is unsecured and still may gain access to the interior of the vehicle, OR
o (2) Police reasonably believe evidence of the offense for which the person was arrested may be found in the vehicle.
Note: This applies even when the suspect is secured/in back of cop car.
During SILA, what is the rule on what the officer may do with one’s phone?
Police officers may examine the physical attributes of a person’s cell phone upon arrest. However, officers may not examine the phone’s data without a warrant.
NOTE
Search Incident to Incarceration or Impoundment
* Rule: At the police station, the police may make an inventory search of the arrestee’s belongings. and vehicle.
What is the rule on the warrant exception of consent? When is consent voluntary?
A warrantless search is valid if the police have voluntary consent. Consent is voluntary if a reasonable person would feel they had a right to leave or refuse. The totality of the circumstances test is applied.
Note: Knowledge of the right to withhold consent is not a prerequisite to establishing voluntary consent.
What is the rule on third parties giving consent?
Any person with an equal right to use the property may consent to a search. However, an occupant cannot give valid consent if the co-occupant objects and the search is directed against the co-occupant.
Note: If one consents and other refuses, officers cannot search property.
Rule: If a co-occupant objects and is removed for another reason (e.g., lawful arrest), the police may act on the consent of the remaining occupant, even if the removed occupant had refused consent.
* Note: Landlord and hotel clerk cannot provide consent until a tenant vacates.
What is the automobile exception? 2 different components and there is an exception to the first one
(1) If officers have probable cause to believe the vehicle contains contraband, they may search the whole vehicle and any container therein that might reasonably contain the item for which they had probable cause to search.
Exception
If car is parked on curtilage, a warrant is needed.
* Subrule: If a warrantless search is valid, the police may tow the vehicle to the station and search it later.
(2) If officers have probable cause that only a container in the vehicle contains contraband, they may conduct a warrantless search of the container but not of the rest of the car.
Note
* Need separate warrant to search actual passenger’s body
* If police have probable cause to believe the car itself is contraband, they may seize it from a public place without a warrant.
* The search may extend to packages belonging to a passenger; it is not limited to the driver’s belongings.
What are the 4 requirements for the plain view exception?
Rule: Under the plain view doctrine, police do not need a warrant if:
* (1) Legitimately on the premises;
o Example: Warrant to search in house, cannot seize item outside home
* (2) Item evidence of crime;
* (3) Item in plain view; AND
* (4) Item’s criminal nature is immediately apparent.
o No movement/manipulation of item
* Note: Applies to “plain smell” detection of drug
What is the general rule on administrative searches and give some examples of what is OK
Officers may conduct a warrantless administrative search if there is a showing of a general and neutral enforcement plan.
* NOTE: Cannot serve as pre-text (not for sole purpose of crime investigation)
Examples permitting warrantless searches
* Administrative searches to seize spoiled or contaminated food
* Administrative searches of a business within a highly regulated industry
* Inventory searches of arrestees or their vehicles pursuant to established department procedure
* Searches – including suspicion-less strip searches – of prisoners even if for minor crimes
* Searches of airline passengers prior to boarding
* Searches of parolees and their homes, even without reasonable grounds, so long as there is a statute authorizing such searches
* Searches of government employees’ desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct
* Drug tests of railroad employees
* Drug tests of persons seeking customs employment in positions connected to drugs
* Drug tests of public school children who participate in extra-curricular activities and school dance
* Opening up international mail when postal authorities have reasonable cause to suspect that the mail contains contraband.
* Immigration Enforcement Actions
o Factory surveys of citizenship of workforce are OK, and illegally obtained evidence may be used in a civil deportation hearing
o Officials with reasonable suspicion that a traveler is smuggling contraband in their stomach may detain the traveler
* Searches at the U.S. border
o Roving patrols inside the U.S. border may stop a vehicle for questioning if an officer reasonably suspects the car contains undocumented people.
o Border officials at fixed locations can stop vehicles and disassemble vehicles even without reasonable suspicion.
- Checkpoints
o Suspicionless stopping and searching OK if done routinely, not randomly, at a fixed point - Note: 4th Amendment does not apply to searches and seizures by the U.S. government in foreign countries and involving an alien.
o Example: U.S. officer conducts warrantless search of an alien’s home in Mexico. Evidence admissible.
What are the 3 requirements for a public school search under the admin search exception to the warrant requirement?
A warrant is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search is necessary. A school search will be held reasonable only if:
(1) Moderate chance of finding evidence of wrongdoing;
(2) Measures reasonably related to purpose of search; AND
(3) Search not excessively intrusive in light of age and sex of student.
What are the 6 requirements for an officer to obtain a warrant for wiretapping? What is the exception?
Wiretapping Warrant May Be Issued
(1) Showing of probable cause;
(2) Suspects are named;
(3) Warrant describes with particularity the conversations that can be heard;
(4) Wiretap limited to a short period of time;
(5) Wiretap terminated when desired information is obtained; AND
(6) Court is informed of what information has been intercepted
o Exceptions – Unreliable Ear and Uninvited Ear
Rule: A speaker has no 4th Amendment claim if they make no attempt to keep conversation private.
Example: Speaker assumes risk that person whom they are talking to either consents to the government monitoring the conversation or is an informer wired or taping the conversation.
What is the shock the conscience rule?
o Rule: Evidence obtained in a manner that shocks the conscience is inadmissible and any convictions stemming from those actions is unconstitutional.
Which amendments deal with a confession?
- The admissibility of a defendant’s confession (or other incriminating admission) involves analysis under the 4th, 5th, 6th, and 14th Amendments.
14th amendment - was the statement voluntary
5th amendment - did they receive miranda
6th amendment - did they have counsel
What must happen for a confession to be admissible under the 14th Amendment DPC?
For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances.
o Harmless Test Error
Rule: If an involuntary confession is admitted into evidence, the harmless error test applies, which means the conviction need not be overturned if there is other overwhelming evidence of guilt.
