Criminal Procedure Flashcards
(32 cards)
Fourth amendment questions framework
(1) If there is a search by the government,
(2) In an area where defendant has a reasonable expectation of privacy, then
(3) Need probable cause and a warrant, but
(4) No warrant if exception applies.
If an exception does not apply, the evidence will not be admitted at trial. This has not been extended to grand jury hearings.
Requirements for valid search warrant
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Exceptions to the warrant requirement
- Exigent Circumstances
- Search Incident to Lawful Arrest
- Plain View
- Motor Vehicle Exception
- Inventory Search
- Hot Pursuit
- Consent (only exception where probable cause is not required)
Inevitable discovery
The inevitable discovery exception to the exclusionary rule allows admission of evidence illegally seized that would have been discovered lawfully anyway.
This exception allows evidence to be admitted, even though it was seized in violation of the 4th Amendment. It is a last resort and is rarely used.
May the government use sophisticated equipment and devices to perform searches?
Where the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.
When does the Sixth Amendment right to counsel attach?
The Sixth Amendment right to counsel attaches at the initiation of a formal adversary proceeding, be it by indictment, information, or criminal complaint.
The right is not implicated in the investigatory or the grand jury phase.
Is the Sixth Amendment right to counsel offense specific?
The Sixth Amendment right to counsel is “offense-specific,” meaning it provides protection only to the offense for which the defendant is being prosecuted. Thus, police can elicit information from a defendant without counsel present regarding offenses for which the defendant has not been charged.
When can the Sixth Amendment right to counsel be waived?
The Sixth Amendment rights to counsel can be waived, even if counsel had been appointed but not present, if the waiver is made knowingly, voluntarily, and intelligently.
Massiah rule
The Massiah rule prohibits the police from using deliberate efforts to acquire incriminating information from a suspect who has been formally charged, unless the suspect’s attorney is present or the right to counsel has been waived.
In United States v. Henry, a paid informant was placed in a jail cell with Henry after Henry had been formally charged (indicted) and was told not to question him, but to remain alert to any statements made by him. However, the informant engaged in conversations with Henry at various times and he made several incriminating statements. Henry’s conviction was reversed because the government “deliberately elicited” statements from him in violation of his Sixth Amendment right to counsel.
Does the right to counsel apply to line-ups?
Right to counsel only at post-charge line-ups. Identification procedures which are unduly suggestive are unconstitutional. If the procedure was unduly suggestive, an in-court identification may be admissible if from an independent source.
When does Miranda apply? Can it be waived?
Miranda warnings are required if the defendant is in custody, and subject to interrogation by the police. Miranda does not apply to questioning by private security guards.
In custody: given the totality of the circumstances, would a reasonable man believe he is not free to leave the presence of the police (circumstances of interrogation, actions of officers, etc.).
Being drunk or mentally ill does not necessarily make a Miranda waiver ineffective. But subjecting the defendant to interrogation to “soften him up” before giving the Miranda warning does not work.
Exigent circumstances exception
In an emergency, the police can search without a warrant if there is probable cause. This situation is often referred to as exigent circumstances. For this exception to apply, it must be an emergency situation justifying warrantless activity, and there must be probable cause. The Court generally has been reluctant to find exigent circumstances, but the Court has found exigent circumstances in a number of situations: hot pursuit of a felon, protecting safety, and preventing destruction of evidence. Police officers may not enter a home to make a routine felony arrest.
Hot pursuit (exigent circumstances)
Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure. The scope of the search may be as broad as may reasonably be necessary to prevent the suspect from resisting or escaping. When the police have probable cause and attempt to make a warrantless arrest in a “public place,” they may pursue the suspect into private dwellings.
Protecting safety (exigent circumstances)
Emergencies that threaten health or safety if not immediately acted upon will justify a warrantless search. This includes situations where the police see someone injured or threatened with injury. Whether an emergency exists is determined objectively, from the officer’s point of view.
Destruction of evidence (exigent circumstances)
Police officers may enter a home without a warrant to prevent the destruction of evidence, even if the exigency arose because police officers knocked on the door and asked for entry, as long as the officers have reason to believe that evidence is being destroyed and the officers did not create the exigency through an actual or threatened Fourth Amendment violation.
Evanescent evidence (exigent circumstances)
Police officers may seize without a warrant evidence likely to disappear before a warrant can be obtained. Whether such a warrantless search is reasonable is judged by the totality of the circumstances. BAC testing without a warrant will often be found unreasonable.
Plain view exception
Police may seize unspecified property while executing a search warrant. The police may make a warrantless seizure when they:
- (1) are legitimately on the premises;
- (2) discover evidence, fruits or instrumentalities of crime, or contraband;
- (3) see such evidence in plain view; and
- (4) have probable cause to believe (i.e., it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime.
Automobile exception
If the police have probable cause to believe that a vehicle such as an automobile contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant. If the police have full probable cause to search a vehicle, they can search the entire vehicle (including the trunk) and all containers within the vehicle that might contain the object for which they are searching. However, if the police only have probable cause to search a container (recently) placed in a vehicle, they may search that container, but the search may not extend to other parts of the car.
The search is not limited to the driver’s belongings and may extend to packages belonging to a passenger.
The automobile exception extends to any vehicle that has the attributes of mobility and a lesser expectation of privacy similar to a car. For example, the Supreme Court has held that it extends to motor homes if they are not at a fixed site.
Search incident to arrest exception
The police may conduct a warrantless search incident to an arrest as long as it was made on probable cause. If an arrest violates the Constitution, then any search incident to that arrest also will violate the Constitution.
Incident to a constitutional arrest, the police may search the person and areas into which he might reach to obtain weapons or destroy evidence (his “wingspan”). The arrestee’s wingspan follows him as he moves. Thus, if the arrestee is allowed to enter his home, police may follow and search areas within the arrestee’s wingspan in the home. The police may also make a protective sweep of the area beyond the defendant’s wingspan if they believe accomplices may be present.
Automobiles searched incident to arrest
Police may search a vehicle incident to arrest of an occupant only if:
- (a) the arrestee is within reaching distance of the passenger compartment at the time of the search (safety); or
- (b) it is reasonable to believe that the vehicle contains evidence of the offense of arrest (fruits), such as in certain types of possessory offenses (e.g., those involving drugs or weapons) or robbery or larceny.
If the police have reason to believe that the vehicle contains fruits of the offense, police may search the passenger compartment of the car for fruits of that offense. However, the police may not conduct such a search on the basis of an outstanding arrest warrant for speeding, for a probation violation, or for failure to appear at a court proceeding, as there are no “fruits” associated with these offenses.
When a police officer issues a traffic citation which does not result in a custodial arrest, the officer may not search the driver or the car for any contraband. However, when a person in a vehicle is arrested, the officer has the authority to search the interior of the vehicle, even when that officer does not fear for his safety or believe that any contraband will be found. That search must be limited to the immediate control and wingspan area of the person arrested.
Inventory search exception
The police may search an arrestee’s personal belongings in order to inventory them before incarcerating the arrestee. Similarly, the police may search an entire vehicle—including closed containers within the vehicle—that has been impounded, as long as the search is part of an established department routine.
Consent exception
The police may conduct a valid warrantless search if they have a voluntary consent to do so. Knowledge of the right to withhold consent, while a factor to be considered, is not a prerequisite to establishing a voluntary consent. The test for consent is whether it is voluntary under the totality of the circumstances.
Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. The search is valid even if it turns out that the person consenting to the search did not actually have such right, as long as the police reasonably believed that the person had authority to consent. However, the police may not act on consent from an occupant if a co-occupant is present and objects to the search and the search is directed against the co-occupant. If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (e.g., a lawful arrest), the police may act on consent of the occupant, even if the removed co-occupant had refused consent.
The scope of the search is limited by the scope of the consent.
Border searches exception
There is a diminished expectation of privacy at the border and its functional equivalents due to competing interests of national sovereignty. Searches there do not require a warrant, probable cause, or reasonable suspicion. A functional equivalent of the border might be a point near the border where several routes all leading to the border merge.
Checkpoints exception
In certain cases where special law enforcement needs are involved, the Court allows police officers to set up roadblocks to stop cars without individualized suspicion that the driver has violated some law. To be valid, it appears that such roadblocks must: (i) stop cars on the basis of some neutral, articulable standard (e.g., every car or every third car); and (ii) be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.
For example, police may set up roadblocks to check the sobriety of all drivers passing by. However, the police may not set up roadblocks to check cars for illegal drugs.
