Criminal Procedure

Question 1

What rules come from the fourth amendment?

Answer 1

• Protection against unreasonable search and seizure
• The Warrant Requirement which mandates probable cause
• Subsequently, exceptions to the warrant requirement

Question 2

Does the fourth amendment apply to all interactions with people?

Answer 2

No, it does not apply to all interactions between people, or even between a person and the government
- the 4th amendment only limits government authority. If a private person violates your privacy and turns over evidence to the police, then you have no claim under the 4th
- If that person is asked by police to do this however, they become a government agent for this purpose

Question 3

What does the fourth amendment protect against?

Answer 3

searches and seizures

Question 4

What is the Katz Test?

Answer 4

• The Fourth Amendment Protects Individuals where:
  
  • They display a subjective expectation of privacy
  • That society is prepared to recognize as reasonable

Question 5

What did Katz v United States do?

Answer 5

Katz apparently left behind the long standing property centric analysis for the Fourth Amendment, and expanded substantially the types of protections people were afforded against government intrusion.

Question 6

What is a reasonable expectation of privacy in relation to technology?

Answer 6

• When police use technology “not in general public use” to gain information that would have been otherwise unknowable, this constitutes a search that typically requires a warrant
  
  • Ex: Police may use a flashlight to search a stopped car, but can’t use thermal imaging to read the heat inside a house (Kyllo v. United States).

Question 7

What is a reasonable expectation of privacy in relation to location?

Answer 7

• Less privacy expected in commercial buildings than private dwellings
• Overnight guests in another’s home have a reasonable expectation of privacy therein (Minnesota v Olson, 1990)
• But short term guests/commercial visitors do not (Minnesota v. Carter, 1998)

Question 7

What is a reasonable expectation of privacy in relation to intrusiveness?

Answer 7

The more the police intrude in a space, or the more thoroughly they look, the more likely it is to qualify as a search that needs a warrant

Question 8

What does standard of proof mean?

Answer 8

the level of certainty that is needed for the government to take action.

Question 9

What are some standards of proof?

Answer 9

• 100% Certainty
• Beyond a Reasonable Doubt
• Preponderance of The Evidence
• Probable Cause
• Reasonable Suspicion
• Guessing

Question 10

What is the “Beyond a Reasonable Doubt” standard of proof?

Answer 10

• the most well known is beyond a reasonable doubt (BRD) which is the standard of proof required for criminal conviction.
  
  • Although there is not a strict definition of what this means, it has been characterized as “near certainty”

Question 11

What is the “Preponderance of The Evidence” standard of proof?

Answer 11

Preponderance of The Evidence means “more likely than not” and is used to determine outcomes in civil trials.

Question 12

What is the “Reasonable suspicion” standard of proof?

Answer 12

Reasonable suspicion is on the low end, and require more than a “hunch” but instead some articulable basis of suspicion based on facts and reasonable inferences. RS is needed for police to conduct frisks and stops

Question 13

What is Probable Cause?

Answer 13

• Probable Cause is required both for warrants, and for searches without warrants
• It is something less than a preponderance of evidence, but more than mere suspicion
• Probable cause means that based on “trustworthy facts”, the officers experience, and reasonable inferences, a “person of reasonable caution” would be justified in believing that is probable
  
  • that a structure contains evidence of a crime, that a suspect committed a crime, or whatever else happens to be relevant

Question 14

What can probable cause be supported by?

Answer 14

Probable cause can be supported by evidence that is normally inadmissible, including hearsay.
- Probable cause may be established via an informant or tipster (a citizen who provides information to the police), IF
- A judge decides based on the totality of the circumstances that there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Illinois v Gates)
- Important factors include the basis of knowledge of the tipster, and the veracity of the tipster (past history of truthful behavior, or corroboration)
- Another key factor is to look for predictive information – something more than a description of the suspect, including usually something externally verifiable (the time of a meeting, for example) Florida v. JL
- Dog searches can also establish PC

Question 15

What is a warrant?

Answer 15

A warrant is a legal writ, signed by a judge, giving police permission to search a location.
- The warrant requirement is intended to ensure that there is a neutral party between the police and the citizen in order to ensure objectivity in the balance between privacy and law enforcement.

Question 16

What must police establish in order to obtain a warrant?

Answer 16

• PC to believe that within the area to be searched, the items sought will be found
• PC to believe that the items sought are connected to criminal activity
• The area to be searched and items to be seized must be described with particularity.
  
  • How specific this has to be varies. Simply searching for “unauthorized contraband” is not enough
  • A street address is normally a specific enough location, along with a unit # if apartment
  • Greater specificity can be required where areas to be searched are sensitive, or will potentially expose confidential information
  • This evidence must be supported by oath or affidavit
  • Order must be signed b a neutral and detached magistrate – NOT someone who is ultimately going to prosecute the crime

Question 17

Does a warrant to search a place give police rights to search its occupants?

Answer 17

In general, a warrant to search a place does not also give police rights to search its occupants.
- Individuals can be detained while searches take place, until the evidence is found or the threat of destruction of evidence has passed

Question 18

What is the scope of warrants?

Answer 18

• Warrants can be highly tailored to fit particular circumstances. They can:
  
  • Be issued to search and seize evidence of a crime, fruits of a crime, contraband, or items used to commit a crime
  • Authorize searches/seizures of property owned by the suspect or by an innocent third party
  • Be prospective: they can be issued to be executed when some triggering event happens

Question 19

Can warrants limit areas to be searched?

Answer 19

Yes

Question 20

When are warrants executed?

Answer 20

• Warrants must typically be executed during the day, within a specific amount of time after issuance, and usually require police to knock and announce their presence
  
  • “No Knock” warrants can be issued in specific circumstances, but are controversial

Question 21

What are the exceptions to the warrant requirement?

Answer 21

• Even if an officer has probable cause they must still get a warrant for a search, unless one of the following exceptions applies
  
  • Consent
  • Stop and Frisk (Terry v Ohio)
  • Plain View / Plain Feel / Open Fields
  • Searches of automobiles generally do not require warrants
  • Preservation of Evidence
  • Emergency Responses or Hot Pursuit
  • Road Blocks / Random Stops
  • Incident to Arrest

Question 22

What is the “incident to arrest” warrant exception?

Answer 22

• If a lawful arrest is made, a person can be fully searched without a warrant and without PC
• Officers may also search the arrestee and the “area within his immediate control” to detect weapons and prevent the destruction of evidence. They may not search an entire home incident to arrest (Chimel v. California). Only the area where a defendant may obtain a weapon.
• A “protective sweep” of the home may be done to check for other persons who may be a danger to the officers (Maryland v Buie) if there is a reasonable belief that such individuals may be present
• Passengers of vehicles can be searched, as well as containers, if one occupant is arrested

Question 23

What is an arrest?

Answer 23

• Arrest is the most serious type of seizure that the state can carry out
  
  • It is the official taking of a person to answer criminal charges

Question 24

Can police officers temporarily detain persons?

Answer 24

Terry allows police officers to temporarily detain a person as “briefly as possible” in order to search them for weapons based on reasonable suspicion that a crime has been committed. The search must also be minimally intrusive
- Any seizure more extensive than what is permitted by Terry is an arrest.
- An officers intentions to arrest or not are not dispositive of whether an arrest has happened
- The totality of the circumstances will decide whether a detention was a simple Terry stop, or became an arrest

Question 25

What is the question for determining custody?

Answer 25

• The question for determining custody is whether a reasonable person would have felt free to leave
  
  • It is a totality of the circumstances test

Question 26

What are some common considerations for determining custody?

Answer 26

• Whether the suspect is informed the questioning is voluntary
• Whether the suspect is free to move about and away from law enforcement
• Who initiated contact
• Whether the suspect volunteered information
• How accusatory the police are in their communications with the suspect
• Whether the police “dominated the atmosphere” of questioning

Question 27

What is an interrogation?

Answer 27

An Interrogation is the questioning of a suspect by police

Question 28

What is a confession?

Answer 28

A confession is a statement by a person admitting that they committed a crime

Question 29

What is an admission?

Answer 29

If a person claims that certain facts are true, and those facts are inculpatory, but don’t amount to a crime by themselves

Question 30

What makes confessions admissible in court?

Answer 30

• In order for confessions to be admissible in court, they must be voluntary
  
  • This doesn’t just mean free from torture or physical coercion, but also considers mental and emotional coercion

Question 31

What is the right to remain silent?

Answer 31

• Individuals have a right against self incrimination that is operationalized as the right to remain silent.
• However, courts have ruled that simply remaining silent during interrogation without affirmatively invoking the right can itself be used as evidence, and does not forcibly end questioning
  
  • This is not true during trial

Question 32

What does miranda require?

Answer 32

• Miranda requires suspects to be informed that:
  
  • They have the right to remain silent
  • Anything they say may be used against them to gain a conviction
  • They have the right to consult with a lawyer and to have a lawyer present during questioning
  • If they cannot afford a lawyer, they will be provided one without cost
• These warnings do not have to be given according to any particular script, although many police departments do use a standard protocol to minimize the possibility of mistakes

Question 33

What are the exceptions to Miranda?

Answer 33

• Waiver
• Undercover Officers
• Routine Traffic Stops
• Informational Questions
• Public Safety Questions
• Spontaneous Questioning

Question 34

What is the exclusionary rule?

Answer 34

The exclusionary rule renders illegally obtained evidence inadmissible. - This rule applies to primary evidence – evidence found as part of the illegal search.
- It also extends to secondary (aka derivative) evidence – evidence that is found during a subsequent (possibly legal) search, but which is only found because of the illegal search.

Question 35

What is the “Fruit of the Poisonous Tree” doctrine?

Answer 35

evidence tainted by prior illegal conduct is not admissible

Question 36

Does the exclusionary rule mean that charges are automatically dropped?

Answer 36

It does NOT mean the charges are automatically dropped. If the prosecution can convict you without using the illegal evidence, they’re welcome to

Question 37

What are the exceptions to the exclusionary rule?

Answer 37

• Even if a search was illegal, evidence obtained therein can still be admissible if:
  
  • No determination of guilt will be made at the hearing where the evidence is to be used (Grand Juries, sentencing, pre-trial)
  • If the Defendant brings up the evidence first (rebuttal/impeachment)
    The evidence is available from an independent source wholly unconnected to the illegal pathway

Question 38

How can evidence obtained from an illegal search be admissible?

Answer 38

• If it satisfies the Inevitable Discovery Doctrine
• A search was based on a faulty warrant but carried out in Good Faith
  
  • Officers thought they had a good warrant, but did not. Judges disagree and make mistakes about when a warrant is warranted.
  • No deterrent effect on law enforcement
• The chain of causation between the illegal action and the evidence is sufficiently attenuated