Criminal Procedure Flashcards
4th Amendment - Search and Seizure
The 4th Amendment protects persons against unreasonable arrests or other seizures as well as unreasonable searches.
4th Amendment: Government Conduct
Searches conducted by private citizens are not protected by the 4th Amendment – there must be government action.
4th Amendment: Search: Reasonable Expectation of Privacy
Only unreasonable searches and seizures are subject to the 4th Amendment. A search occurs when government conduct violates a reasonable expectation of privacy.
4th Amendment: Warrant Requirement
When a search occurs, a warrant serves to protect a person’s privacy interest against unreasonable government intrusions. A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the place to be searched and the items to be seized.
4th Amendment: Warrantless Searches
Warrantless searches are per se unreasonable unless the search satisfies one of the exceptions to the warrant requirement; search incident to a lawful arrest, exigent circumstance, stop and frisk (“Terry” stop), automobile exception, “plain-view” doctrine, consent searches and administrative searches.
Search Warrant Exception: Search Incident to Lawful Arrest
A lawful arrest creates a situation that justifies a warrantless contemporaneous search of the person arrested and immediate surrounding area (his “wingspan”), in which a weapon may be concealed or evidence destroyed. The right to search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside pockets.
5th Amendment - Right to Counsel
To invoke the right to counsel under the 5th Amendment, the defendant must make a specific, unambiguous statement asserting his desire to have counsel present. If a suspect makes an ambiguous statement regarding his right to counsel, police are not required to end the interrogation or to ask question to clarify whether the suspect wants to invoke the right. However, once the right to counsel is invoked, all interrogation must stop until counsel is present.
6th Amendment - Right to Counsel
The 6th Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when the State initiates prosecution with an indictment or formal charge and ends at the sentencing stage of trial.
Generally, the 6th Amendment right to counsel attaches at the following critical stages: post-indictment lineups and identifications, post-indictment interrogations, whether custodial or otherwise, arraignment and preliminary hearings to determine probable cause to prosecute, plea bargaining, guilty pleas and sentencing, and appeals as matter of right.
Admissibility of Pre- and Post- Indictment Identification
Courts use a two-prong test to determine the admissibility of pre- or post- indictment lineup identifications. To prevail, the defendant must demonstrate that the procedure was impermissibly suggestive and there was a substantial likelihood of misidentification.
Waiver of Miranda Rights
A defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily. In the 5th Amendment context, once an individual in custody asserts the 5th Amendment right to counsel, no subsequent waiver of that right is valid in a police initiated interrogation. However, police may re-open interrogation of a suspect who has asserted his 5th Amendment right to counsel if there has been a 14-day or more break in custody.
Waiver of 6th Amendment Right to Counsel
The 6th Amendment right to counsel can be waived if it is done voluntary, knowingly and intelligently.
Resisting Unlawful Arrest
A defendant may use non-deadly force to resist an unlawful arrest, but never deadly force. Some jurisdictions do not permit the use of force at all and require defendants to seek legal redress for an unlawful arrest.
A person has the right to defend others under the same circumstances in which self-defense would be acceptable. Defense of others is not limited to defending family members but extends to anyone the defendant reasonably believes has the right of self-defense.
