Criminal Procedure 2 Flashcards
4th Amendment Protects…
4th Am right to be free from unreasonable search and seizure of person and property by gvmnt
- subpoena to appear before grand jury not within fourth amendment protection
-use of deadly force is a seizure and my not be used unless reasonable under the circumstances
What constitutes Seizure of a person
Totality of Circumstances
RP not feel free to leave / terminate the encounter
requires physical application of force / or submission to a show of force
Arrest - requirements for a valid arrest
Probable Cause
Warrant to required for public arrest
Warrant required to arrest person in home
Terry Stop
i.e. Investigatory detentions
reasonable suspicion supported by articulable facts (judged by totality of circumstances)
informant’s tips need indicia of reliability
police can’t take too long
Automobile Stop Requirements
Reasonable Suspicion that a law has been violated (note: pre textual stop based on valid reason is OK)
Exception: w/o suspicion of there’s a special law enforcement need
- cars must be stopped on basis of something neutral / articulable that could be applied to all cars
- must serve purpose closely related to automobiles / their mobility
Improper search or seizure of property?
- Is there governmental conduct
- standing to object
- valid warrant
- exceptions to warrant requirement
Standing for 4th amendment purposes
Person must have own reasonable expectation of privacy w/r/t place searched or item seized (totality of circumstances)
-owned / right to possess place searched
- place was their home /was overnight guest there
- owns property & reas expectation of privacy there
Warrant Requirements
- issued by neutral magistrate
- based on PC that you’ll find what you’re looking for
- describes with particularity what to find / seize/ arrest
- Invalid if based on material false statement (intentionally or recklessly made)
- Must generally knock/announce
Exceptions to Warrant Requirement for warrantless searches / seizures
- lawful arrest
- Automobile
- Plain View
- Consent
- Stop / frisk
- Hot pursuit of Fleeing Felon
- Evanescent Evidence
- Emergency aid
- Inventory search incident to arrest
- public school by pub school official
- Mandatory Drug testing (serves special need beyond law enforcement)
- Border Searches (super broad)
Automobile exception to warrant requirement
PC to believe vehicle contents fruits/instrumentalities of crime
can search anywhere in or on car the thing you’re looking for could be found
no contemporaneous requirement
Pat down on Terry Stop
—> once suspect is validly stopped, if police have reasonable belief he’s armed and dangerous, can pat down and take anything in ‘plain feel’
Inventory search of person/car incident to arrest
Valid if pursuant to established police department procedure
Involuntary Confession - was due process violated?
Judged by?
Involuntary = ?
Remedy?
Judged by Totality of Circumstances
Government compulsion makes confession involuntary
Harmless error test applies if involuntary confession gets into evidence
Confession - 6th Amendment Right to Counsel
How to waive?
When Attach?
Applies to what offenses?
Offense Specific
Waivable (knowing and voluntary)
Applies at all critical stages of the prosecution
Attaches when adversary judicial proceeding are begun (charges filed)
Applies to any post-charge line up or show up (not photo IDs)
Confession - 5th Amendment privilege
privilege against compelled self incrimination
Miranda:
-remain silent / atty / statements used against you / appointed atty if you need one
Must be given prior to:
1. Custodial
2. Interrogation by police (D knows interrogation is by police / doesn’t apply to informant or probation officer)
Miranda - Custody
Would Reasonable person feel free to terminate interrogation and leave?
OR
Coercive environment?
Test is objective
Traffic stop is non-custodial
Miranda - Interrogation
police words / conduct designed to elicit incriminating response
Miranda Waiver - right to remain silent
Must be explicitly invoked, if invoked request must be scrupulously honored (cannot ask more about the crime)
Waiver - knowing and voluntary; usually found if D talks after warnings given
Miranda Waiver - right to counsel
Must be explicitly invoked &
UNAMBIGUOUS , if invoked ALL questions must cease (for at least 14 days after D returns to normal life)
D may voluntarily reinitiate questioning
Effect of Miranda Violation
Evidence Inadmissible at Trial (but ok to Impeach D’s testimony) (Harmless error test applies)
D’s silence after warnings can’t be brought up
Exception: statements in response to questioning without Miranda may be OK if questioning motivated by public safety
Pretrial IDs
Rights implicated
Remedy
Due Process - unnecessarily suggestive procedure that make misidentification likely = violate due process
6th Am Right to Counsel applies to any pre-trial lineup or show up (not photo IDs)
Improper ID = excluded at trial; but can have in court ID if from an independent source
