Criminal Procedure Flashcards
4A approach
(1) State rule
(2) Gov’t conduct?
(3) Reasonable expectation of privacy?
- Did D have REP? Assess D’s home and curtilage, open fields/flyovers, sensory enhancing tech, dog sniffing, etc.
- Physical intrusion theory?
(4) Was there a seizure of a person?
- Arrest
- Terry stop and frisk
- Police checkpoints
- Traffic stops
(5) Was there a search of a person, car or house and seizure of items?
- Valid warrant requirement
- Warrant exceptions
(6) If there was an illegal search and/or seizure, or warrant invalid, should the evidence be inadmissible under Exclusionary rule/fruit of the poisonous tree?
- Exclusionary rule exceptions: independent source, inevitable discovery, purged taint
(1) 4A starting rule
The Fourth Amendment prohibits unreasonable searches and seizures. To assert a Fourth Amendment violation, D must demonstrate (1) government conduct and (2) that he had a reasonable expectation of privacy.
4A: (2) Gov’t conduct rule
To demonstrate government conduct, D must prove that the government or police were involved in the unreasonable search and seizure.
4A: (3) Reasonable expectation of privacy general rule
Under the totality of circumstances, D must have had a reasonable expectation of privacy in the places to be searched or items to be seized.
4A: Did D have a REP? Assess
- Person’s home and its curtilage (i.e., immediate area surrounding the house): one has REP in his own home and curtilage.
- Open fields/flyovers: areas outside the home that are held out to the public do not have a REP (e.g., some distant barns, yards visible by plane, discarded trash). Courts will consider PENS:
i. Proximity of area to house;
ii. Whether the area is enclosed by a structure;
iii. Nature of use of the structure or area in question;
iv. Steps taken by individual to protect privacy in the area.
1. Argue whether something is open fields vs. curtilage if facts raise it. - Sensory enhancing technology will violate a REP (e.g., heat/thermal imagers not allowed), but technology available to the public may be permitted (e.g., binoculars, telescopes). Electronic eavesdropping is not acceptable (fine to listen through walls though).
- Dog sniffing: dogs are permitted to sniff luggage at airports and cars during a legitimate traffic stop but cannot extend the stop unless there is reasonable suspicion of a violation other than a traffic infraction.
*NOTE: Police CANNOT use dogs to sniff homes without a warrant or warrant exception (dog cannot be the probable cause).
4A: Physical intrusion theory in addition to REP
A search may also occur when the government physically intrudes upon private property for the purposes of obtaining information.
4A: (4) Seizure of a person (was the seizure of a person unlawful/unreasonable?)
A seizure occurs if under the totality of the circumstances, a reasonable person would not feel free to leave.
*4 types of seizure include (1) arrest, (2) stop and frisk, (3) police checkpoints and (4) traffic stops. *for all below, discuss whether the facts support the specific seizure.
4A: types of seizure of a person
- Arrest: PC required for arrest (officer has reasonable belief D violated law). Arrest in D’s home generally requires arrest warrant but no warrant needed in public place if he has PC.
- Terry stop and frisk: officer can stop a person if he has reasonable suspicion that the person is engaged in or has engaged in criminal activity. (low std, argue both ways)
- Police checkpoints: generally valid if the stop is conducted in a nondiscriminatory manner and the purpose of the checkpoint is for an articulable reason beyond general crime prevention.
- Traffic stops/automobile stops: valid if the officer has reasonable suspicion or probable cause of wrongdoing. (all occupants may be asked to exit vehicle for any reason)
4A: (5) Was there a search (of a person, house or car) and/or seizure of items? General rule
A search or seizure occurs when gov’t conduct violates D’s REP.
*Explain why D does or doesn’t have REP in the area.
4A: (5) Was there a search (of a person, house or car) and/or seizure of items? Valid warrant requirement
Where a person has a REP, police need a search warrant based on probable cause to search and seize the property. To be valid, a warrant must:
(1) be issued by neutral and detached magistrate
(2) be based upon PC
(3) describe with particularity the D or places to be searched and items to be seized.
*Analyze all 3. Is there a warrant that meets all requirements? If no, does an exception apply?
4A: (5) Was there a search (of a person, house or car) and/or seizure of items? Knock and announce before execution rule
to execute search warrant, police must knock and announce their presence before entering the premises. If there is no response, police can enter and seize the items described but may not exceed the scope of the warrant.
4A: (5) Was there a search (of a person, house or car) and/or seizure of items? Warrant exceptions, Frisk of a person
An officer can stop a person if he has reasonable suspicion that the person is engaged in criminal activity. The officer can then frisk or pat down the outer clothing of the defendant for purposes of officer safety. If the officer feels an object whose identity is IMMEDIATELY OBVIOUS as contraband, it can be seized during the frisk under the “plain feel” exception.
*Watch out for facts of police exceeding scope (reaching into pockets, can do so if contraband is obvious)
Warrant exceptions: Frisk of a car
If an officer lawfully stops a car (reasonable suspicion that a traffic violation has occurred), the officer may frisk the inside of the car if she has reasonable suspicion that there is a weapon in the car. However, the office can only frisk the areas of the car that may contain a weapon.
Warrant exceptions: SILA
When police are making a lawful arrest, they may search the area within the person’s immediate control, such as pockets or containers (i.e., wingspan).
- Protective sweep: Under SILA, police can also conduct a protective sweep of all or part of the premises where an arrest is being made if they have a reasonable belief based on specific and articulable facts that other dangerous individuals may be present.
- Vehicle: Under SILA, the police may search the glove compartment if the arrestee is within reaching distance or it is reasonable that evidence connected to the arrest might be in the vehicle.
*BUT NOTE: police can’t search vehicle under SILA if D does not have access to the car. But they can use automobile exception if they have PC
Warrant exceptions: Automobile exception
Police can search any part of defendant’s car and any containers therein if they have probable cause that it contains contraband or other evidence of a crime.
*if drvier is arrested, police may impound the car transport it to station, and search it there.
Warrant exceptions: Plain view
No warrant required to seize evidence in plain view if:
(1) police are lawfully in the location from which the evidence can be viewed and
(2) the criminal nature of the item is immediately apparent
Warrant exceptions: Consent
If a party consents to a search, a warrant is not required. The consent must be voluntary, and there must be no coercion or false assertion of lawful authority.
Warrant exceptions: Exigent circumstances
Under a totality of circumstances test, exigent circumstances may make a warrantless search constitutional if probable cause exists. Exigency can be determined by many factors, including hot pursuit of a fleeing felon, reasonable apprehension that a delay in getting a warrant would result in the immediate danger of evidence destruction, or police and/or public safety.
Warrant exceptions: Good faith warrant exception
evidence collected in violation of a defendant’s 4th Amendment right to privacy may nonetheless be admissible if police officers acted in good faith reliance upon a defective search warrant as measured by a reasonable person standard.
*Not applicable if officer knew of defect, defect obvious, or lack of probable cause for affidavit
Warrant exceptions pnemonic
SPACES GF
- Stop and frisk of person and car and plain feel
- Plain view
- Automobile
- Consent
- Exigent cirumstances
- SILA
- Good faith
4A: (6) Exclusionary rule general rule
excludes evidence seized as a result of government illegality, as well as the “fruit of the poisonous tree”, which is any subsequent evidence derived from the original illegal government action.
