Criminal Procedure Flashcards
What are the two important protections that have not been incorporated to the states via the 14th amendment?
The right to indictment by a grand jury for capital and infamous crimes
Unclear if the 8th amendment on the prohibition on excessive bail creates a right to bail in state proceedings
What does the 4th amd prohibit?
Unreasonable search and seizure (of person and property)
What does the 5th amd prohibit?
Self incrimination and double jeopardy
What does the 6th amendment prohibit?
Right to speedy public trial, right to trial by jury, confrontation clause, right to assistance of counsel
What does the 8th amd prohibit?
cruel and unusual punishment
What is a seizure under the 4th amd?
any exercise of control by a government agent over a person or thing (e.g. arrests).
Seizure occurs when under the totality of circumstances test a reasonable person would not feel that they were free to decline the officer’s request or otherwise terminate the encounter. Seizure requires a physical application of force or submission to a show of force.
What is an arrest?
When police take a person into custody against their will for purposes of criminal prosecution or interrogation
What threshold must be met for an arrest/station house detention at police station under the 4th amd?
Must be based on probable cause (trustworthy facts or knowledge) sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law (totality of the circumstances considered)
But remember, no probable cause needed if suspect consents
When is a warrant required for an arrest?
Not required in public places
Required for nonemergency arrest of a person in their home
An arrest warrant has been issued, can officers enter suspect’s home?
Only if there is reason to believe the suspect is within the home
An invalid arrest was made - what is the effect on the later proceedings
an unlawful arrest (no probable cause at the time it was made) by itself has no impact on any subsequent criminal prosecution
What is a terry stop?
a brief detention for investigative purposes - no time limit but police must confirm or dispel their suspicion in a “diligent and reasonable manner”
What is required to support a terry stop?
What is required for a terry frisk?
Articulable and Reasonable suspicion (supported by articulable facts) of criminal activity, involvement in a completed crime
If there is reasonable suspicion that D is armed and dangerous, may frisk for weapons. Can only frisk if officer reasonably thinks the person has a weapon
What is reasonable suspicion?
More that a vague suspicion or hunch but less than probable cause - judged on the totality of the circumstances
What is required for reasonable suspicion to be based on the word of an informant (terry stop context)?
there must be indicia of reliability (can be predictive information - “I know there will be drugs coming in on Wednesday”)
Police officer asks person their name during a terry stop and they refuse, what now?
What if police find probable cause in the terry stop?
Police can arrest
What is the terry stop equivalent for property seizure?
Brief property seizure is valid if based on reasonable suspicion.
When can police stop an automobile?
if the police have at least reasonable suspicion to believe that a law has been violated
Is a dog sniff during a traffic stop a search?
No as long as the police do not extend the stop beyond the time needed to issue the ticket or conduct normal inquiry “sniff is not a search”
A dog alerts that there are drugs in a vehicle during a traffic stop. Probable cause?
Yes, can search
Can police without probable cause use a drug sniffing dog outside the home of a drug dealer?
No
Does a police officer’s reasonable mistake of law invalidate a seizure?
No, as long as it was a reasonable mistake of law
When an automobile is stopped, who is seized?
all of the occupants of the car (so if the stop was wrongful, all of the occupants have standing to raise the wrongful stop as grounds to exclude the evidence found during the stop)
Are checkpoints and “informational roadblocks” constitutional?
Yes as long as the purpose is something other than seeking incriminating information about the drivers stopped (if seeking information about another suspect or searching for witnesses, that’s fine)
If special law enforcement needs are involved, SCOTUS allows police officers to set up roadblocks to stop cars without individualized suspicion IF BOTH
1) cars are stopped on some neutral and articulable standard (e.g. every 4th car) AND
2) the roadblock is designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility
Can a police officer order the occupants of the car out?
After a lawful stop, yes.
If officer reasonably believes the detainees are armed, the officer may frisk for weapons and search the passenger compartments for weapons (Even after the occupants are out of the car)
Is a pretextual stop valid? (police believe buyer violated a traffic law but the police are really more interested in other crimes they think have been committed)
Yes
Can the police detain a suspect from going into their home unaccompanied so that they can go get a warrant?
Yes (but remember, need probable cause to get the warrant)
Can a warrant to search for contraband also allow police to detain occupants of the premises during the search?
Yes
Is a subpoena of someone to testify at a grand jury a seizure under the 4th amd?
No
If a police officer uses deadly force to apprehend a subject, has there been a seizure?
When can an officer use deadly force?
Yes
An officer may not use deadly force unless it is reasonable to do so under the circumstances (e.g. when suspect poses a danger to their own life or the lives of others)
When does an evidentiary search and seizure have to be supported by a warrant?
Always except in 6 exceptions
1) incidental to constitutional arrest
2) Automobile search
3) Plain View
4) consent
5) stop and frisk
6) Hot pursuit (exigent circumstances, evanescent evidence, emergency aid)
What analytical process should you follow if you see a 4th amd evidentiary search or seizure?
1) is there governmental conduct
2) Does D have a 4th amd right (standing)?
3) Did the police officers have a valid warrant? (issued by neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized)
4) If no valid warrant, did one of the 6 exceptions apply?
To whom does the 4th amd search and seizure requirement apply to?
government conduct (police or private individuals acting at the direction of the police) - not private conduct (like security guards)
When does D have a 4th amd right (evidentiary search and seizure context)
If the search/seizure by the govt that EITHER
(1) concerning a place or thing that D had a reasonable expectation of privacy OR
(2) involving a physical intrusion into a constitutionally protected area to obtain information
When does a person have standing to object to a govt search under the 4th amd?
the person must have their own reasonable expectation of privacy with respect to the place searched or item seized - based on the totality of the circumstances but there is automatically a reasonable expectation of privacy whenever EITHER:
1) person owned or had a right to possession of the place searched
2) place search was in fact their home (regardless if they owned or rightly possessed it)
3) person was an overnight guest of the owner the place searched OR
4) person owns the property seized and they have a reasonable expectation of privacy in the item or area searched
Does a person have a reasonable expectation of privacy in items they wanted thrown away?
No
When does a person NOT have a reasonable expectation of privacy (and thus the person does not have standing to challenge the search)?
Things held out to the public which includes:
1) sound of your voice
2) style of your handwriting
3) paint on the outside of your car
4) account records held by the bank
5) location of your car on a public street or in your driveway
6) anything that can be seen across open fields
7) anything that can be seen from flying over public air space
8) odors of luggage or car or etc
9) garbage set out on the curb for collection (must be on the curb)
Is cell-site location information stored by third parties “held out to the public” such that the person lacks a reasonable expectation of privacy and standing to challenge the search?
No - not held out to the public - does have reasonable expectation of privacy
Installation of a GPS on suspect’s car is a search
If police can look into or listen in on happenings in a private space from afar is that a search?
Yes as long as it is not available for general public use
What are the two requirements for a facially valid search warrant?
1) probable cause
2) particularity
Describe the showing necessary for probable cause for a warrant?
officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officer’s conclusions
- affidavit based on informant’s tip must meet the “totality of the circumstances test” (reliability and basis for knowledge are relevant - identity does not have to be revealed)
How can D defeat a warrant based on an affidavit?
ALL OF:
1) a false statement was included in the affidavit by the affiant (officer)
2) the affiant intentionally or recklessly included the false statemetn
3) the case statement was material to the finding of probable cause (if there was sufficient other evidence, this is not satisfied)
This is a difficult test to meet
What happens if a warrant is facially valid but turns out to not be supported by probable cause?
Police can reasonably rely on a facially valid warrant (that they actually obtained) even if it is ultimately found that there is no probable cause and evidence obtained by it can be used by the prosecution
Describe the particularity requirement for a warrant?
The warrant must describe with particularity the PLACE to be searched AND the ITEMS to be seized.
If it does not, it is unconstitutional even if the underlying affidavit gives such detail
Can a warrant be issued to search the premises of a third party?
Yes as long as there is probable cause to believe that evidence will be found there
What is required for a magistrate to be “neutral and detached” for the warrant issuing requirements?
neutral and detached is the best standard we get (but state AG would not be neutral and detached)
Who can exercise a warrant?
What is required while exercising a warrant
Scope?
Only the police (no third parties unless third parties are there to identify stolen property) can exercise a warrant and it must be exercised without unreasonable delay
police must knock and announce (unless officer has reasonable expectation that based on the facts announcing would be dangerous, futile, or hinder the investigation. (but violations will not result in suppression of the evidence or property obtained)
Scope limited to what is reasonably necessary to discover the items described in the warrant
Persons are on premises at the time a search is conducted pursuant to a warrant. Can they be searched?
If not named in the warrant, they can be detained, but they cannot be searched
Warrant also does not allow officers to stop, detain, or search persons who left the premises shortly before the warrant was executed (but terry stop available under those requirements
What should you remember about the “search incident to a constitutional arrest” warrant exception?
- Arrest must actually be constitutional (based on probable cause)
- Police can search the person, protective sweep of the area for accomplices, and areas in wingspan into which they might reach to obtain weapons to destroy evidence or find accomplices
- Search must be “contemporaneous” with the arrest but that does not mean simultaneous (at least with cars) can search car after suspect is in squad car
What does the “search incident to a constitutional arrest” warrant exception do in the context of a car?
[Gant Rule] IF at the time of the arrest…
1) Arrestee is unsecured and still may gain access to the interior of the vehicle OR
2) the police reasonably believe that evidence of the offense of which the person is arrested may be found in the vehicle
This does not get into the trunk - just the passenger compartment
What is the balancing test for searches incident to arrest of technology that did not exist at the time the 4th amd was written?
SCOTUS balances the degree to which the search incident to arrest intrudes on a person’s privacy against the degree to which the search is necessary to legit govt interests
Physical attributes of a cell phone may be searched but not data (b/c data can’t be used as a weapon)
Is a blood alcohol test a valid search incident to a lawful arrest for DUI?
Breathalyzer yes, blood sample, no
What exceptions is related to the warrant exception for search incident to a lawful arrest?
A search incident to incarceration or impoundment - police may take inventory of the arrestee’s belongings pursuant to established department procedure - can also take inventory of and impound vehicle (including any containers contained in the vehicle
What if police find something they weren’t looking for?
As long as the search itself is valid, any evidence/contraband found will be admissible
When can police search a car without a warrant under the automobile exception?
if the police have probable cause to believe the vehicle contains fruits, instrumentalities, or evidence of a crime, they can search the ENTIRE vehicle and any container/personal item inside that might reasonably contain the item for which they had probable cause to search (so if looking for a person, can’t look in a glove compartment)
Can also tow the vehicle to the station and search it later
What happens to the automobile exception if the car is parked in the curtilage (driveway) around suspect’s home?
Warrant exception goes away and police must have a warrant
What happens to the automobile exception if the car itself is contraband (ie stolen) and is spotted in a public place?
they may seize it from a public place without a warrant
Does the automobile exception to the warrant requirement allow the police to search a passenger’s belongings also?
Yes
The police have probable cause to search a container that was recently placed inside the vehicle - can they also search the entire vehicle?
No - if they only have probable cause for the container, can only search the container - not the entire vehicle
Police stop a car without probable cause and then see something that gives them probable cause - can they now search the car under the automobile exception?
Yes - probable cause to search a car can arise after the car is stopped
What’s the key difference in scope between the search incident to lawful arrest and automobile exception?
Automobile exception allows search of the ENTIRE CAR (including the trunk) while the search incident to a lawful arrest does not
When can police make a warrantless seizure under the plain view exception to the warrant requirement?
Police must
1) be legitimately present on the premises
2) discover evidence, fruits, instrumentalities or contraband
3) evidence in plain view
4) have probable cause to believe (“immediately apparent”) that the item is evidence, contraband or a fruit or instrumentality of a crime
What is the scope of the consent exception to the warrant requirement?
If the consent is voluntary, permission extends to all areas that a reasonable person under the circumstances might believe it extends.
Knowledge of the right to withhold consent is not a prerequisite
If the police present a facially valid warrant and you consent to a search and the warrant turns out to subsequently be invalid - is the evidence still admissible because you consented to the search?
No - police saying they have a warrant negates consent
Who has the authority to consent to a search by police without a warrant?
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. Officers only have to reasonably believe the person giving consent lives there.
Co-occupant cannot give consent if another co-occupant is present and refuses and the other co-occupant is the subject of the search. If the refusing co-occupant is removed (maybe by arrest) then the police can act on the consent of the remaining co-occupant
What is the terry stop and terry frisk exception to the warrant requirement for search?
Terry Stop = brief detention for the purpose of investigating suspicious conduct
Terry Frisk = pat down of outer clothing and both to check for weapons
What is the standard to support a terry stop?
Terry frisk?
Terry stop = articulable facts and reasonable suspicion of criminal activity
Terry frisk = officer reasonable believes the person has weapons
What is the permissible scope of a terry frisk?
limited to a pat down of outer clothing unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing
During a frisk, officer may reach into clothing and seize any item that the officer reasonably believes based on its “plain feel” is a weapon or contraband (if have to manipulate the feel, it’s not plain feel)
How does the terry frisk apply in the context of a traffic stop?
if the vehicle is properly stopped for a traffic violation and officer reasonably believes the driver or passenger is armed and dangerous, the officer may
1) conduct a frisk of a suspected person
2) search the vehicle in areas where a weapon may be placed
Describe the Evanescent evidence exception to the warrant requirement?
Evanescent evidence is evidence that might disappear quickly if the police take the time to get a warrant
e.g. a police officer can scrape under a suspect’s finger nails without getting a warrant because if the officer took the time to get a warrant the defendant might go wash their hands
SCOTUS says police must get a warrant before taking a blood sample for DWI if it is practical to do so.
Describe the hot pursuit exception to warrant requirement
Police in hot pursuit (within 15 min) of a fleeing felon may make a warrantless search and seizure and even pursue into a private dwelling.
If misdemeanor, the police must determine if the law enforcement interest justifies a warrantless entry
What is the emergency aid or community caretaker exception to the warrant requirement?
Police may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public
What is the warrant exception for administrative searches/seizures?
Not a warrant exception at all. Inspectors must have a warrant to search private residences and commercial buildings but probable cause needed is more lenient - only need to show a general and neutral enforcement plan to justify the issuance of a warrant
What are some examples of the probable cause sufficient for an administrative search/seizure?
Search for and seize spoiled food
Search and seizure of a business within a highly Regulated industry
Inventory searches of arrestees or their vehicles Pursuant to established dept procedure
Strip searches (even without suspicion) of prisoners
Searches of airline passengers prior to boarding
Random drug tests of any student involved in an extra curricular
What is the public school search exception to the warrant requirement?
Who decides if the requirements are met (judge or jury)?
Warrant and probable cause not required for school officials to search students and their possessions - only need reasonable grounds which requires:
1) moderate chance of finding evidence
2) measures adopted to carry out the search that are reasonable related to the objectives of the search
3) search is not excessively intrusive in light of the age and sex of the student and nature of the infraction
All of these elements are determined by the jury
Does the 4th amd apply to searches by US officials in foreign countries?
No - at least where the alien does not have a substantial connection to the United States
What are the rules fo searches at the border?
Roving patrols inside the US border may stop a vehicle for questioning of occupants if an officer reasonably suspects that the vehicle contains undocumented immigrants. (officials can also stop travelers if reasonable suspicion that they are smuggling drugs in their stomach
Border officials may stop a vehicle at a fixed checkpoint for questioning and disassemble the vehicle even without reasonable suspicion
What are the rules for searching international mail?
Postal authorities musts have reasonable cause to suspect that the mail contains contraband
Evidence obtained in violation of the 4th amd can be used in a civil deportation hearing
true
Is wiretapping/evesdropping a search under the 4th amd?
Yes - need a warrant which requires all of:
1) probable cause
2) suspected persons involved in the conversations to be overheard are named in the warrant
3) warrant describes with particularity the conversations to be overheard
4) limited to short period of time
5) wiretap terminated when the desired information has been obtained
6) return is made to the court showing what conversations have been intercepted
If a person talks to an informant who has a recording device, is there a 4th amd claim?
What if the person makes no attempt to keep a conversation private
No “unreliable ear” - speaker assumes the risk that the other person consents to government monitoring or is an infomant
No - “uninvited ear”
What is a pen register?
It tracks only the numbers dialed from a phone, not the conversations. No 4th amd concern but a statute requires judicial approval before they may be used
What is the standard for excluding evidence obtained in a manner that “shocks the conscience”?
The manner must “offend a sense of justice” and is then inadmissible under the due process clause (e.g. torture)
And any conviction stemming from those actions is unconstitutional
What are the areas for scrutiny involving a defendant’s confession?
4th, 5th (privilege against compelled self incrimination), 6th (right to counsel), 14th (voluntariness)
What does the 14th amd demand of an admissible confession?
The due process clause demands that the admission be VOLUNTARY as determined under the totality of the circumstances (questioning all night long does not yield a voluntary confession)
A confession is involuntary only if there is some official compulsion
If an involuntary confession is admitted into evidence, what method of review applies?
Harmless error test - conviction does not have to be overturned if there is other overwhelming evidence of guilt
What does the 6th amd demand of an admissible confession?
right to counsel at all critical stages of prosecution after judicial proceedings have begun
Prohibits the police from deliberately eliciting an incriminating statement from a defendant outside of the presence of counsel AFTER D HAS BEEN CHARGED unless D waives right to counsel.
(default is that counsel has to be at all critical stages of the prosecution and that is changed only if D waives)
When does D have a right to counsel under the 5th and 6th amds?
6th amd right AFTER D CHARGED - applies regardless if person knows they’re talking to the police - Charge specific
5th amd right to counsel under Miranda AFTER ARREST AND BEFORE CHARGES - applies only if person knows they are talking to the police - not charge specific
At what stages of the proceedings does D have a right to be represented by counsel (or have counsel appointed for them if indigent)?
post indictment interrogation Perliminary hearings to determine probable cause to prosecute Arraignment Post charge lineups Guilty plea and sentencing Felony trials Misdemeanor trials when imprisonment is impose or suspended jail sentence Overnight recesses during trial Appeals as a matter of right
At what stages of the proceedings does D NOT have a right to be represented by counsel (or have counsel appointed for them if indigent)?
Blood sampling
taking of handwriting or voice samples
precharge or investigative lineups
photo identifications
Preliminary hearings to determine probable cause to detain
Brief recesses during the defendant’s testimony at trial
discretionary appeals
parole and probation revocation proceedings
Post conviction proceedings
What is the scope of conversations prohibited by the 6th amd right to counsel?
What’s the difference in 5th and 6th amd rights to counsel
6th amd is offense specific so D can be questioned regarding unrelated uncharged offenses without violating 6th amd (although there might still be 5th amd concerns)
Two offenses are considered to be different if each requries proof of an additional element that the other crime does not require
5th amd is not offense specific (known police officer can’t question you on anything) - 6th amd is offense specific (no one can question you on the charges but can ask you about other kinds of cases)
What is the standard for a valid waiver of 6th amd right to counsel?
Waiver must be knowing and voluntary (but does not require the presence/advice of counsel)
