Criminal Procedure Flashcards
Arrest & Seizure
An officer, by means of physical contact or show of authority, intentionally terminates or restrains the person’s freedom of movement.
Test: whether a reasonable person would feel free to disregard the officer.
Stop & Frisk or “Terry Stop”
An officer stops an individual when the officer:
(1) has a reasonable suspicion,
(2) based on articulable facts,
to believe the suspect is or is about to be engaged in criminal behavior.
Other details:
1. Mistake of law can give rise to reasonable suspicion.
2. Officer can pat down for weapons, cannot frisk for evidence.
3. Pat down can reveal obvious contraband.
4. Probable cause can develop during stop, and officer can make it an arrest.
Stop & Frisk with NO reasonable suspicion
If a stop & frisk is not supported by reasonable suspicion (and therefore unlawful):
- If the officer develops the basis for a lawful arrest during the stop, then evidence seized CAN be used at trial.
- If no basis develops to make a lawful arrest, then evidence seized during the arrest CANNOT be used at trial.
Traffic Stop
Officers must have reasonable suspicion to stop a car.
Once there is lawful stop, officers may pat down an occupant for weapons if they have reasonable suspicion that the person has a weapon.
Checkpoints—Officers do not need reasonable suspicion to stop drivers if they pull over
everyone.
Arrest
Must have probable cause to make an arrest.
Can be with or without a warrant.
Pretext arrest: as long as the police have probable cause to believe that an individual committed a crime, it is irrelevant whether the officer stopped that person for the crime for which there is probable cause or for some other crime.
Warrants
Authorizes an officer to arrest a particular person. Requirements:
- Issued by a neutral and detached magistrate;
- Based on finding of probable cause; and
- Name the person and ID the crime.
Allows police to enter named person’s dwelling and arrest that person.
Warrantless Search
Officers can only arrest someone without a warrant inside a dwelling if:
- There are exigent circumstances; or
- They have consent to enter.
Warrantless Arrest
An officer can arrest an individual without a warrant in a public place, either for a crime committed in the officer’s presence or based on probable cause to believe the individual committed a crime.
If the crime was not committed in the officer’s presence, the officer can make an arrest only for probable cause.
An illegal arrest (no probable cause) does not prevent prosecution for the crime, but might result in exclusion of evidence discovered during the arrest.
Search Incident to Arrest
A lawful arrest permits the arresting officers to make a contemporaneous search of the person arrested and the immediate surrounding area to:
1.Protect officers from weapons or other danger; and
2. To prevent the destruction or concealment of evidence
Any evidence discovered and seized during a search incident to a lawful arrest can be used against the person arrested.
- Arrest on the street: Can search the suspect and his wingspan (within reach)
- Arrest at home: Can search the suspect and his immediate arrest area
- Arrest in a car: May search passenger compartment of a vehicle as long as the person/suspect still has access to the vehicle at the time. Cannot arrest, put suspect in custody, and then search car. Can search car for inventory purposes.
- Special cellphone rule: Officers may seize the suspect’s cellphone, but cannot search the phone for digital information; police need a search warrant to search the phone’s digital information.
Search
Government conduct violates a reasonable expectation of privacy.
Gov’t conduct = physical intrusion (drug sniffing dog) on property or without physical intrusion (thermal cameras)
Reasonable expectation of privacy = Houses, hotel rooms, offices, luggage, curtilage (yard)
No expectation of privacy = public streets, open fields, abandoned property, garbage set-out-on-the-CURB
Search Warrant
Gov’t needs search warrant to search premises. Requirements:
- Issued by neutral magistrate;
- Based on probable cause that items are fruits, instrumentalities, or evidence of crime; and
- Must describe the property and place to be searched with particularity
If warrant doesn’t meet requirements, it is void and items seized will be excluded.
Search Warrant - Wiretapping
Wiretapping is a search. Need probable cause and a warrant. Requirements:
- Specifically identify whose conversations are to be intercepted
- Include an end date for the warrant
- Perform minimization
Exceptions to Warrant Requirement
(ESCAPES)
- Exigent Circumstances - secure premises if in danger
- Search incident to Arrest - weapons, evidence, people (if in home)
- Consent - defendant consents, deception can play
- Automobiles - passenger if stop, inventory, probable cause
- Plain View - physically present and thing is obvious
- Evidence from administrative searches - compliance with administrative regulations
- Stop & frisk - reasonable suspicion
Fifth Amendment
No person shall be compelled in a criminal case to be a witness against himself.
Natural persons only: not corporations or unions.
Testimonial evidence only, not physical.
If someone is given immunity from prosecution for their statements, they cannot refuse to answer.
Miranda Interrogations
Only applies in custodial interrogations (not free to leave, and trying to get a response).
Warnings:
1. Right to remain silent
2. Statements can be used against you in court
3. Consult an attorney
4. Have attorney appointed if you can’t afford one
Police cease questioning if any of the following occurs:
1. Invoke right to remain silent
2. Right to counsel invoked (until lawyer gets there or defendant initiates contact w/ police)
Public Safety exception: police don’t need Miranda warnings if public safety is at risk.
