Criminal Procedure Flashcards
Generally: The 4A, 5A, and 6A
4A- Protects the people and their papers, houses, and effects from unreasonable searches and seizures.
–> Also requires particularized (as opposed to general) warrants that are supported by PC.
5A- Requires that no person be denied life, liberty, or property without due process of law.
–> Also grants each person a privilege against self incrimination.
6A- Requires that in all criminal prosecutions, the accused has a RTC to assist in his defense.
Search/Seizure –> Govt Action Req
4A applies only to govt (not private) conduct.
- -> When a private party acting on his own acquires evidence that the govt later seeks to introduce in a criminal pros, neither the 4A nor excl rule applies.
- —–> However, when a private party acts at the direction of the govt agent or pursuant to an official policy, any search conducted and evidence seized is subject to 4A scrutiny.
Search/Seizure –> Reasonable Expectation of Privacy: Standing
A person may assert 4A rights where there is standing:
(1) there is a govt intrusion into his REP, or
(2) when the govt’s investigatory conduct results in a physical TRESPASS against his person, home, papers, or effects.
When govt action qualifies as search under either test, a D may seek remedy of EXCLUSION of evidence discovered during search (but only if the D has estd standing to object to the govt conduct).
Search/Seizure –> Reasonable Expectation of Privacy: Application (Held Out to the Public)
A D has a REP when the objects identified by the govt investigation are NOT held out to the public.
- -> Further, a D does NOT have a REP in the following items (even if not held out to public):
(1) HANDWRITING exemplars
(2) VOICE exemplars
(3) BANK records
(4) PEN registers, which record telephone numbers dialed; and
(5) PRIVATE CONVOS, including eavesdropping
Note: A D loses any privacy right that may have existed w/ discarded property, such as commingled garbage and abandoned rental premises.
Search/Seizure –> Warrants: Y/N General Rule
A search conducted by a govt authority w/o a warrant is PRESUMPTIVELY INVALID unless it falls w/in an EXCEPTION.
–> Thus, reasonable search under 4A must be conducted EITHER pursuant to a warrant OR under exception to warrant req.
Search/Seizure –> Warrants: If Yes, Valid? - Requirements for Validity
Warrant
–> A judicial authorization for police action (either to search a particular place- search warrant- or arrest a particular person- arrest warrant).
Search Warrant
–> Must be (1) issued by a neutral and detached magistrate (2) after an adequate showing of PC, and (3) must describe w/ particularity the place to be search and items to be seized.
Search/Seizure –> Warrants: If Valid, Properly Executed? - Announce Presence
A search warrant need not specify the precise manner for its execution, yet limitations do apply as follows:
(1) ONLY POs, not private citizens, may execute a warrant;
(2) a search warrant must be executed PROMPTLY while PC still exists; and
(3) absent exigent circumstances, a PO must KNOCK AND ANNOUNCE his presence before attempting a forced entry
- -> A violation of the knock and announce rule does not req the automatic suppression of all evidence found in the subsequent search.
Unless an exception to warrant req applies, a search/arrest conducted pursuant to an invalid warrant will constitute a 4A violation.
–> Warrantless searches are generally unconstitutional unless they fall w/in a warrant exception.
Search/Seizure –> Warrants: If Valid, Properly Executed? - Unreasonable Delay
Cannot be an unreasonable delay after executing the warrant.
Search/Seizure –> Warrants: If Valid, Properly Executed? - Search W/In Scope of Warrant
The scope of the search is limited to premises DESCRIBED in the warrant. (but see plain view doctrine)
Search/Seizure –> Warrants: If Not Valid, Good Faith in Validity? (Good Faith Exception)
Evidence obtained pursuant to an invalid warrant will not be excluded if a REASONABLY WELL-TRAINED officer would have believed that the warrant was valid.
Aspects for considering the good faith exception include:
(1) whether the police were acting on good faith reliance of a FACIALLY VALID warrant;
(2) whether the police were acting in reliance of a VALID STATUTE; and
(3) whether the police were acting in reliance of a CT OFFICIAL rather than a PO
Good faith exception to exclusionary rule does NOT (!) apply when:
(1) the police LIE/MISLEAD the ct in attaining a warrant
(2) the MAGISTRATE is NOT neutral or detached, and
(3) NO REASONABLE PO would have believed the warrant was valid
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (List)
(1) Searches incident to lawful arrest
(2) Automobile exception
(3) Plain view
(4) Consent
(5) Searches pursuant to a stop
(6) Hot pursuit
(7) Exigent circumstances
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (SILA)
SILA (Generally)
–> A SILA must be CONTEMPORANEOUS w/ arrest or preceding it.
SILA (DIGITAL)
The warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.
SILA (HOME)
To protect arresting POs and prevent destruction of evidence, the D’s person (as well as the area w/in his immediate control - his WINGSPAN) may be SILA’d.
–> May include a cursory scan (PROTECTIVE SWEEP) of adjoining rooms; the entire domicile may be scanned provided there is RS of an armed accomplice.
SILA (CAR)
If a custodial arrest is effected while the D is in a car, POs may search the passenger compartment of the vehicle only if it is reasonable to believe that the D might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Automobiles)
SCOTUS: once the POs have PC to search the moving/temporarily stopped car, they may seize the car and search it later (even if could obtain warrant between seizure and subsequent search).
POs may inspect a container w/in a car if they have PC to believe the container has contraband or evidence (even where POs do not have PC to search the entire car).
Where PC exists, the POs may search the entire vehicle including closed containers/luggage to find objects for which PC existed.
Warrantless search and seizure of items from a car may be justified under several scenarios:
(1) SILA
(2) PLAIN VIEW
(3) an INVENTORY search following a lawful impounding
(4) a BORDER search
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Plain View)
POs may seize property that is CLEARLY VISIBLE in plain view w/o a warrant if:
(1) POs are LAWFULLY PRESENT at the place where the object can be seen;
(2) POs have a lawful right of ACCESS to the object; and
(3) it is immediately APPARENT that the object is incriminating.
HOT PURSUIT
A PO may follow an arrestee into his house and then lawfully seize any contraband evidence in plain view.
SCOPE
A PO may NOT move objects to get a better view.
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Consent - General)
Consent is a warrantless intrusion reqing no justification; an individual may simply waive his 4A rights as long as the waiver is VOLUNTARY.
To justify search based on consent, POs must est 3 elements:
(1) VOLUNTARINESS
- —> To be effective, the D’s consent must be a voluntary and intelligent decision made w/o coercion.
- —> Totality of the circumstances
(2) PROPER SCOPE; and
(3) 3RD PARTY consent
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (3rd Party Consent)
Person consenting must have either ACTUAL or APPARENT authority to consent, such as a person who:
(1) truly may consent (such as the owner or occupant of the particular premises); or
(2) has apparent authority to consent, such a having a key or knowing where things are on the premises (even if it later turns out that the person lacked actual authority to consent)
ACTUAL 3RD PARTY CONSENT
Any person who has joint control or use of shared premises may consent to a valid search.
–> A present co-T who is silent (and does not object) does not have standing to object to the reasonableness of the search.
–> An absent co-T does not have any standing to object to the search (even where POs are responsible for co-T’s absence - detention or arrest).
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Hot Pursuit)
A warrantless search is lawful when POs are in ACTUAL hot pursuit of a FLEEING SUSPECT to apprehend him; POs may seize mere evidence as well as any contraband found.
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Exigent Circumstances)
In certain emergency situations where evidence may be LOST/DESTROYED before warrant can be obtained, a warrantless search/seizure may be permitted.
POs may conduct warrantless search and seizure of evidence in or on a suspect’s body provided that:
(1) there is PC to believe that nature of evidence renders it EASILY DESTROYED or likely to disappear before a warrant can be obtained; and
(2) the procedure for seizing the evidence is REASONABLE.
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Regulatory Search - Checkpoint Stop)
POs, operating at a checkpoint, may stop traffic to check the vehicle registration and DLs of drivers, as long as the stops:
(1) are random
(2) are based on some fixed formula, such as every vehicle or every 5th vehicle
Special Needs Doctrine
An exception to the general req of individualized suspicion of searches: warrantless, suspicion-less search may be justified when special needs (beyond the normal need for law enforcement) make the warrant and PC req impracticable.
–> POs are permitted to use checkpoints to conduct brief seizures and/or limited searches w/ no individualized suspicion/warrant in response to a public safety danger that cannot be addressed by complying with the normal individualized suspicion/warrant reqs.
–> Sobriety or drunk driving checkpoints are permissible
Search/Seizure –> Warrants: If No/Invalid Warrant - Exceptions to Warrant Requirement (Regulatory Search - Border Crossings/Checkpoints)
As an incident of national sovereignty, customs and immigrations searches, when conducted by govt agents in ROUTINE manner and NOT PARTICULARIZED for a specific person/specific property, are not an invasion of privacy and do not req PC.
- -> Govt officials may make routine searches of items/people crossing the border and at fixed checkpoints near the border (reasonable, do not require PC or RS).
- -> However, RS reqd for unusually intrusive search (ie body cavity search or destruction of property).
Search/Seizure –> Warrants: If No/Invalid Warrant + No Exception Applies
Apply exclusionary rule and exceptions.
Stops/Frisks –> Terry Standard
In order to frisk a stopped individual, the PO must articulate RS that the suspect is armed and dangerous.
RS: If a PO reasonably believes (more than a mere hunch), based on PO’s own observations or those of an informant, that criminal activity may be afoot, then the PO may stop and briefly question a criminal suspect.
- -> The reqd belief or RS must be supported by objective evidence that the suspect is engaged/about to become engaged in criminal activity, or is a wanted criminal.
- -> The PO may do a limited pat down of suspect’s outer garments (a “frisk”) for weapons if they have a reasonable and articulable suspicion that person detained may be armed and dangerous (despite lack of PC or warrant).
- -> A Terry stop based on less than full PC is permitted when the detainee is suspected of involvement in a past crime constituting a felony or a threat to public safety.
Improper Subjective PO Basis
–> Fact that a PO had some improper subjective basis for stop will not result in finding that stop was illegal, as long as the stop was supported by an objectively reasonable belief that the suspect was engaged or about to engage in criminal activity.
Anonymous Tips
–> An anonymous tip alone is inadequate; however, under the totality of circumstances, an anonymous tip coupled w/ PO corroboration of some info contained in the tip shows suff indicia of reliability to justify investigative stop
Flight
–> Not enough for PC but is enough for RS
Stops –> Traffic Stops
SCOTUS: Drug sniffing dogs are allowed during traffic stops, as long as prolongation of stop for inspection is brief.
–> POs may not prolong traffic stops to wait for drug-sniffing dogs to inspect vehicles; a PO stop exceeding the time needed to handle the matter for which the stop was made violates the 4A.
Stops –> Searches Pursuant to a Stop (see also warrant exception)
A stop is the momentary detention (often accompanied by very limited questioning) of a criminal suspect.
- -> May take place in the suspect’s home or car or on the street.
- -> A stop is a seizure w/in meaning of 4A; thus, seizure must be reasonable (depends on type of stop).
Types of Stops
- -> PC not required for short, investigatory stop (satisfied by RS)
- -> RS: cts must look at totality of circumstances to see whether PO had particularized and objective basis for suspecting legal wrongdoing
Arrests –> Arrest Warrants
Arrest warrants generally not required when arresting someone in a public place.
—> When they are obtained, they must be issued by a neutral and detached magistrate after an adequate showing of PC.
A valid arrest may occur either w/ or w/o a warrant; generally, no warrant reqd for an arrest (police need only PC).
- -> POs may come into possession of requisite fact/circumstances for PC from their own observations of the suspect OR through information obtained by third parties.
- -> PC defined as that quantity of facts and circumstances w/in the PO’s knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search).
- -> Evaluated in terms of what was known at the moment of the govt intrusion; a PO may est PC by considering events leading up to the moment of arrest.
Informants
PC to arrest may be obtained indirectly through an informant; tip may serve as basis for PC arrest if reliability estd by:
(1) the informant’s tip containing specific details; and
(2) the reliability of both the details and the informant being confirmed prior to the moment of arrest.
Arrests –> Custody
When a person is taken into custody for the purpose of commencing a criminal action, an arrest has occurred.
Whether a person is in custody is determined based on the objective circumstances surrounding the interrogation, particularly:
(1) person did not feel that he was at liberty to terminate the interrogation and leave; and
(2) person was in an environment that presented inherently coercive pressures.
Arrests –> In-Home Arrests
An arrest warrant is reqd before POs can arrest a person in his own home, absent exigent circumstances or consent.
Consent/exigent circumstances estd when:
(1) an arrest attempt outside the home is thwarted because suspect retreats into the home
(2) there is insuff time to secure a warrant because the delay would allow the suspect to evade arrest or destroy evidence; or
(3) the arresting PO is in hot pursuit and has PC to effect a valid arrest of the suspect
Third Party Home Arrests
–>POs generally may not legally search for the subject of an arrest warrant in the home of a 3rd party absent exigent circumstances or consent w/o first obtaining a search warrant for those premises.
Knock and Announce
- -> Unless exigent circumstances exist, POs must knock and announce their identity before entering to make the arrest.
- -> Violation of the knock and announce rule does not automatically trigger the exclusion of evidence seized after the violation.
Arrests –> Warrantless Arrests at CL
Both POs and private citizens may make arrests for felonies committed in their presence.
–> A PO may arrest a person for a felony not committed in his presence when he has reasonable grounds to believe a person did, in fact, commit the felony.
POs and private citizens may make arrests for misdemeanors when:
(1) the crime is committed in their presence; and
(2) the misdemeanor amounts to a breach of the peace.
- -> A warrant is reqd for a misdemeanor that the PO did not personally observe, regardless of whether arrest takes place inside/outside the suspect’s home.
