Criminal Procedure Flashcards
Constitutional Rights Not Binding on States
Right to indictment by a grand jury for capital and infamous crimes is not binding on states
Seizure - General Definition
Any exercise of control by gov agent over a person (including arrests) or thing must be rx
What constitutes a seizure of a PERSON?
When under TOC, a rx person would feel they are not free to decline officer’s request or otherwise terminate encounter
When does an arrest occur?
When police take a person into custody against their will for purposes of criminal prosecution or interrogation
Probable Cause for Arrest
An arrest must be based on PC –
(1) Trustworthy facts or knowledge;
(2) Sufficient for a rx person to believe that the suspect has committed; or
(3) Is committing a crime for which arrest is authorized by law; and
(5) PC must be based on totality of circumstances (TOC)
Does an arrest require a warrant?
A warrant generally is NOT required before arresting a person in public place BUT police generally must have a warrant to effect a nonemergency arrest of a person in their home.
The officers executing the warrant may enter the suspect’s home only if there is a reason to believe suspect is within it.
Station House Detentions
Police must have full PC for arrest to bring a suspect to the station for questioning or fingerprinting against person’s will
What effect does an invalid arrest have on any subsequent prosecution?
Unlawful arrest by itself has NO impact on any subsequent criminal prosecution
Terry Stop - PC or RS?
Only require RS. Police have authority to briefly detain a person even if they lack PC to cause arrest.
-If police have RS of criminal activity or involvement in a completed crime supported by articulable facts (not hunch), they may detain a person for investigative purposes.
Frisk during Terry Stop - If police also have RS the detainee is armed and dangerous, they may frisk detainee for weapons.
Reasonable Suspicion (RS) Defined
More than just vague suspicion but less than PC. Whether police have RS depends on TOC
RS based on informants tip requires…
Indicia of reliability - including predictive info
Duration and Scope of Terry stop
- No time limit
- Police must act in a diligent and reasonable manner in confirming or dispelling their suspicions
- Police may ask detained person to identify themselves and may arrest the detainee for FAILURE to comply with such a request
Terry stop –> Arrest ?
Other PC for arrest arises during stop
Brief Property Seizures
valid if based on RS
Car stop requires…
RS to believe law has been violated
Is a dog sniff during a traffic stop a search?
No, so long as police do NOT extend the stop beyond the time needed to issue a ticket or conduct normal inquiries
Dog ‘alert’ to presence of drugs during traffic stop is basis of what?
PC for a search
Can police w/o PC use a drug sniffing dog outside the home of a suspected drug dealer?
NO
Police offers mistake of law & seizure
Does NOT invalidate a seizure so long as the mistake was reasonable
Seizure of all car occupants
Car stop is a seizure not only of driver but also of any passengers; thus, passengers have standing to raise wrongful stop as a reason to exclude evidence during stop
Informational checkpoints & roadblocks
- If police set up roadblock for purposes OTHER THAN SEEKING incriminating info about the drivers stopped, it is constitutional.
- If special law enforcement needs are involved, SCOTUS allows officers to set up roadblocks to stop cars w/o individual suspicion the driver violated some law; but roadblocks must:
(1) Stop cars on basis of some NEUTRAL, ARTICULABLE standard (every car); AND
(2) Designed to serve purposes closely related to a particular problem pertaining to cars and their mobility
Police may order occupants out
- After lawfully stopping a car, in interest of officer safety, officer may order occupants of car to get out.
- If officer rx believes detainees are armed, officer may frisk occupants and search passenger compartment for weapons even after officer has ordered occupants out
Pretextual Stops
If police have PC to believe driver violated traffic law, they may stop car even if their ULTERIOR motive is to investigate a crime that they lack sufficient cause to make a stop
Detention to obtain a warrant
If police have PC to believe a suspect has hidden drugs in home, they may, for rx time, prevent the suspect from going into home unaccompanied so that they can prevent suspect from destroying the drugs while they obtain a search warrant
Occupants of premises
A valid warrant to search for contraband allows police to detain occupants of premises during a proper search
Is Seizure of person by subpoena for a grand jury appearance within 4A protection?
NO!!!! Seizure of person by subpoena for a grand jury appearance is not within 4a protection
Deadly force
- 4A seizure exists when officer uses deadly force to apprehend a suspect
- Officer may not use deadly force UNLESS rx under circumstances
4A Analysis Steps
- Is there gov conduct?
- Is there standing?
- Is there valid warrant?
- If not, do exceptions to valid warrant apply?
What constitutes gov conduct? What does NOT?
4A protects only against gov conduct = officers, gov agents, private individuals acting at direction of public police
4A does not protect against searches by privately paid police UNELSS they are deputized as officers of the public police. Examples of private police are security guards, subdivision police, camp police
2 ways searches and seizures can implicate person’s 4A rights
1) Search/seizure by gov agent of a constitutionally protected area which individual has REP; OR
2) Physical intrusion by gov into constitutionally protected area to obtain info
Standing & REP
Person must have standing to object to gov search. To have 4A right, person must have their own REP w/ respect to PLACE searched or ITEM seized, determined by TOC.
Person has REP any time:
1) person owned or had right to possession of place searched
2) place searched was in fact their home, whether or not they owned or had right to possession OR
3) person was an overnight guest of the owner of place searched
“Sometimes” category of standing
Person owns the property seized has standing only if they have REP in item or area searched
Things held out to public & REP
No REP in objects held out to public, including info in hands of 3P, but REP in CSLI
Seizure of the following implicates NO right to privacy
- sound of your voice
- style of handwriting
- paint outside your car
- account records held by bank
- location of your car on public street or driveway
- anything that can be seen across open fields
- anything that can be seen from public airspace
- odors emanating from your luggage/car
- garbage SET OUT ON THE CURB FOR COLLECTION (not garbage set against your house)
GPS device on suspect’s car = search?
Yes! Need PC
Sense-enhancing technology = search?
If not in general public use, to obtain info from inside suspect’s home that could NOT otherwise be obtained w/o physical intrusion violates suspect’s expectation of privacy
Valid Warrant Requirements (2)
- PC
- Particularity
PC for Warrant
PC to believe that seizable evidence will be found on person or premises at the time the warrant is executed.
Officers must submit to magistrate an affidavit setting forth circumstances enabling magistrate to make determination of PC independent of officer’s conclusions
Use of Informers for Warrant
Affidavit based on informer’s tip must meet TOC, meaning informant’s RELIABILITY and CREDIBILITY on their basis of knowledge are relevant factors in making this determination. Identity not required.
3 requirements for defendant to establish the search warrant on the basis of an affidavit is invalid?
- Falsehood
- Intentionally/recklessly included
- Material to PC
* defendant is rarely successful in challenging affidavit
Police may reasonably rely on validity of warrant
Evidence obtained by police in rx reliance on a facially valid warrant may be used by prosecution despite an ultimate finding that the warrant was NOT supported by PC
Warrant must be precise on its face
must describe w/ particularly the PLACE to be searched and ITEMS to be seized. If it does NOT, the warrant is unconstitutional even if underlying affidavit gives such detail
Warrant may be anticipatory
Warrant can predict when illegal items may be in suspect’s home/office. Items need not be on the premises at the time the warrant is issued
Search of 3P premises permissible
warrant may be obtained to search premises belonging to non suspects if there is PC to believe that evidence will be found there
Neutral and detached magistrate requirement
magistrate who issues warrant must be neutral and detached - state attorney general is not neutral
Execution of warrant
- Only POLICE, not private citizens may execute a warrant and must be done w/o UNRX delay
- Police must knock, announce purpose, wait rx time for admittance - unless officer has RS, based on facts, announcing would be dangerous or futile or inhibit investigation
- Police may NOT be accompanied by 3P unless 3P present to aid identifying stolen property
- Scope of search is limited to what is rx necessary to discover items described in warrant
- Police may seize ANY CONTRABAND or FRUITS or INSTRUMENTALITIES of time that they discover, whether or not specified in warrant
Does violating knock and announce rule result in suppression of evidence?
No, exclusionary rule N/A
Search of person found on searched premises
- Warrant to search for CONTRABAND authorizes police to detain occupants of premises during search but search warrant DOES NOT authorize police to search persons found on premises who were NOT named in the warrant
- Neither does warrant give officers authority to follow, stop, detain and search persons who left premises shortly before warrant was executed
Detentions are limited to persons in the immediate vicinity of the premises when warrant is being executed - If police have reason to believe any person present is ARMED AND DANGEROUS, officer may conduct a Terry pay down for weapons
SILA
Search Incident to Lawful Arrest -
- Police may search person and areas into which they might reach to obtain weapons or destroy evidence
- Search must be contemporaneous in time and place w/ arrest, but w/ searches of cars, the term contemporaneous does not mean simultaneous; police may search interior of car AFTER securing occupant of car in a squad car if they have reason to believe the car contains evidence of crime for which the occupant was arrested
Protective sweep during SILA
Police may also make a protective sweep of the area if they believe accomplices are present
Geographic scope of SILA
person and areas within person’s wingspan
When can police search passenger compartment of car incident to arrest?
ONLY if at time of search:
(1) Arrestee is unsecured and still may gain access to interior of car OR
(2) Police rx believe evidence of offense for which the person was arrested may be found in the car
Technological Searches and SILA
Court balances degree to which the SILA intrudes upon person’s privacy against degree to which search is needed to promote gov interest
DUI Arrest - Breath & Blood Test
Justifies breath but not blood test
Violation of implied consent law
I.e., law that says by driving on roads, driver impliedly consents to blood test if stopped for intoxicated driving can be punished CIVILLY NOT criminally
What attributes of a cellphone can and cannot be searched upon arrest?
Officer can examine physical attribute of person’s cellphone upon arrest but not data w/o warrant
Search incident to incarceration or impoundment
At police station, police may make an inventory search of arrestee’s belongings pursuant to established dept procedure.
Police can make an inventory search of impounded vehicle - includes any containers
Automobile Exception
If police have PC to believe car contains:
(1) fruits
(2) instrumentalities or
(3) evidence
of a crime, they may search WHOLE vehicle and any container that might reasonably contain item for which they had PC to search
If warrantless search of car is valid, police may tow car to station to search later. BUT if car is parked within curtilage of suspect’s home, police may NOT search vehicle w/o warrant
If police have PC to believe a car itself is contraband, can they seize it from public place w/o a warrant?
YES
In car exception, can police search passenger’s (not just driver’s) belongings?
Yes. Search may extend to packages belonging to passenger; not limited to drivers.
PC to search only container in car
If police have PC only to search container in car, may search ONLY container, NOT other parts of car
Can PC to justify warrantless search of car under the car exception arise AFTER car is stopped?
Yes, but PC must arise BEFORE anything or anybody is searched.
Plain view doctrine
Police may make warrantless seizure when they:
(1) are legitimately on the premises
(2) discover evidence, fruits, or instrumentalities of crime/contraband
(3) see such evidence in plain view and
(4) have PC to believe – immediately apparent – that the item is evidence, contraband, or fruit or instrumentality of the crime
Consent search
Warrantless search is valid if police have a voluntary consent. Knowledge of right to withhold consent is not a prerequisite to establishing a voluntary consent. The scope of search may be limited to scope of consent. Generally extends to all areas which a rx person under rx circumstances would believe it extends
If the police lie that they have a warrant to search, and you “consent” – is this a consent search?
NO. It negates consent.
Authority to consent
Any person w/ apparent equal right to use/occupy property can consent to search and any evidence found may be used against the other owners or occupants
co-occupant OK’s search BUT present co-occupant objects to search that’s directed against him = consent search?
NOT a valid consent to search
co-occupant OK’s search BUT co-occupant has objected to search and is removed for a reason unrelated to the refusal = consent search?
police may act on consent of remaining occupant, even if removed co-occupant had refused consent
Terry stop versus frisk
Terry stop = brief detention for purpose of investigating suspicious conduct
Terry frisk = patdown of outer clothing and body to check for weapons
Standard to stop person w/o PC for arrest
if they have articulable and RS of criminal activity
May require detainee to state name and if officer reasonably believes person may be armed and presently dangerous, officer may conduct protective frisk
Is a stop an arrest?
No. Officer need not have PC for a stop. But needs to have reason to believe criminal activity afoot.
Scope of frisk
patdown of outer clothing unless officer has specific info that weapon is hidden in particular area of suspect’s clothing
Admissibility of evidence from frisk
during patdwon, officer may reach into suspect’s clothing and seize any item officer reasonably believes based on PLAIN FEEL is a weapon or contraband and such items are admissible evidence
Manipulated –> not plain feel
When can Terry stop –> Arrest?
If PC arises during stop. Then officer can conduct FULL SIA
Automobile Stops
If car properly stopped for traffic violation and officer reasonably believes that a driver or passenger may be armed and dangerous, officer may
(1) conduct a frisk of suspected person AND
(2) search car so long as it is limited to areas in which weapon may be placed
Evanescent Evidence
Evidence that might disappear quickly if police took time to get warrant (scrape under fingernails before washing hands)
Hot Pursuit
Police in hot pursuit of fleeing felon may make warrants search and seizure and may pursue suspect into private dwelling.
Can enter anyone’s home w/o warrant and any evidence they see in plain view = admissible
Warrantless entry - Fleeing person suspected of misdemeanor
Their flight does not always justify warrantless entry into home. Officer must consider all circumstances to determine whether there is a law enforcement emergency that justifies warrantless entry
Hot Pursuit - how many minutes?
If police are NOT within 15 minutes behind fleeing felon, not a hot pursuit that falls under exception
Emergency Aid Exception
Police may enter premises w/o warrant if officer faces an emergency that threatens health or safety of individual or public
Administrative inspections and searches
inspectors must have a warrant for searches of private residences and commercial buildings but PC required to obtain a warrant is more lenient than other searches = showing of general and neutral enforcement plan will justify issuance of a warrant
Not really tested
Exceptions permitting warrantless searches (long list)
- administrative searches to seize spoiled/contaminated food
- administrative searches of a business within a highly regulated area
- inventory searches of arrest or their vehicles pursuant to established dept procedure
- searches of prisoners before being admitted into general prison population
- searches of airline passengers before boarding
- searches of parolees and their homes even w.o reasonable grounds for the search as long as there is a statute authorizing it
- searches of gov employee’s desks and file cabinets where scope is rx and there is work-related need or rx suspicion of work-related misconduct
- drug tests of railroad employees involved in accident
- drug tests of person seeking customs employment in positions connected to drug interdiction
- drug test of public school students WHO PARTICIPATE IN EXTRACURRICULAR ACTIVITIES - even school dances!
Public school searches
Warrant/PC not required for public school officials to search public school students/possessions; only reasonable grounds for the search are necessary. School search is reasonable only if:
1) offers moderate chance of finding evidence of wrongdoing
2) measures adopted to carry out the search are reasonably related to the objectives of the search and
3) search is not excessively intrusive in light of age/sex of students and nature of infraction
Searches in foreign countries
4A n/a searches/seizures by US officials in foreign countries and involving aliens, at least where alien does not have substantial connection to US
Searches at border or equivalent
neither warrant, PC, RS needed to conduct search at US border due to national sovereignty interests
Roving patrols inside US border may stop a vehicle for questioning of occupants if an officer reasonably suspects that the vehicle contains undocumented aliens
Border officials may stop vehicle at fixed checkpoint inside border for questioning of occupants and may disassemble car w/o RS
Opening international mail
when postal authorities have rx cause to suspect that mail contains contraband
Immigration enforcement actions
immigration services may do factory survey of work force to determine citizenship of employees. even illegally obtained evidence may be used in CIVIL deportation hearings
Detentions
officials w/ RS that a traveler is smuggling contraband in their stomach may detain a travler
Wiretapping and Eavesdropping
Wiretapping constitutes a search and valid warrant for it can be issued if
(1) showing PC;
(2) suspected person involved convo to be overheard are named;
(3) warrant describes w/ particularity conversations that can be overheard
(4) wiretap is limited to short period of time
(5) wiretap is terminated when desired info has been obtained
(6) return is made to court, showing what convo has been intercepted
Exceptions - Unreliable Ear and Uninvited Ear
A speaker assumes risk that the person to whom they’re talking to consents to the gov monitoring the conversation OR is an informer wired for sound or taping conversation.
Speaker has NO 4A claim if they make NO attempt to keep a convo private
Pen Register
Device or process that traces outgoing signals from a specific phone or computer to their destination.
- Statute judicial approval required before it can be used.
Method of obtaining evidence that shocks conscience
evidence obtained in manner that shocks conscience – offends sense of justice – inadmissible under Due Process Clause.
If a crime is induced by official actions that shock conscience, any conviction stemming from those actions is unconstitutional
Defendant’s Confessions
The admissibility of a Defendant’s confessions, or other incriminating admission, involves analysis under the 4th, 5th, and 6th, and 14th Amendments.
14th Amendment - Voluntariness
For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of circumstances.
A statement will be involuntary only if there is some official compulsion (i.e. if the confession is a product of mental illness).
Harmless Error Test
If an involuntary confession is admitted into evidence, the harmless error test applies whereby the conviction need not be overturned if there is other overwhelming evidence of guilt.
6th Amendment Right to Counsel
Applies to all critical stages of prosecution after adversary judicial proceedings have begun.
Prohibits the police from deliberately eliciting an incriminating statement from a Defendant outside the presence of counsel after the Defendant has been charged unless the Defendant has waived their right to counsel.
Defendant who is arrested but not yet charged — triggers 5️⃣ or 6️⃣ Amendment right?
Does not have a 6th Amendment right to counsel but does have a 5th Amendment right to counsel under Miranda.
Stages When 6th Amendment Right to Counsel Applies
A Defendant has a right to be represented by privately retained counsel or to have counsel appointed for them by the state if the Defendant is indigent, at the following stages:
(1) Post-interrogation, whether or not custodial;
(2) Preliminary hearings to determine probable cause to prosecute;
(3) Arraignment;
(4) Post-charge lineups;
(5) Guilty plea and sentencing;
(6) Felony trials;
(7) Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed;
(8) Overnight recesses during trial;
(9) Appeals as a matter of right’
(10) Appeals of guilty pleas
