Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Criminal Procedure > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

1
Q

How does the Fourth Amendment of the United States Constitution read?

A

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

** - The Fourth Amendment is the law’s chief source of privacy protection and serves as a tool for regulating government, and particularly police activity**

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What constitutes a Fourth Amendment search?

A
  1. ) The citizen has manifested a subjective expectation of privacy; and
  2. ) That expectation is one that society (through the Court) excepts as objectively reasonable
    - may be a “search” when police engage in information gathering

Reasonable Expectation of Privacy Standard

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

To whom does the Fourth Amendment apply?

A

The Fourth Amendment applies only upon government actors or private citizens acting on behalf of the government

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What two factors are considered in determining whether a private party is acting as an instrument of the state?

A
  1. ) The degree of government encouragement, knowledge, and or acquiescence with regard to the private actor’s conduct; and
  2. ) The purpose underlying the private party’s action - was he pursuing a governmental interest or did he act to promote his own personal business objectives
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is the plain view doctrine?

A

Generally, where the police discover evidence through the exercise of their ordinary senses - when the police are in a place where they are entitled to be - and the police merely viewed and did not “seize” it - is not protected by the Fourth Amendment

Remember:

What a person knowingly exposes to the public, even in his own home, is not subject to Fourth Amendment protections

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Does a Fourth Amendment search require a physical trespass?

A

No

But the fact that a physical trespass is present makes it more likely that the trespass will involve a Fourth Amendment search

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the importance of the Open Fields Doctrine?

A

Police entry onto and the search of open fields does not constitute a search under the Fourth Amendment (even if there are no trespassing signs and high fences)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Where does an individual enjoy the highest expectation of privacy?

A

An individual enjoys the highest expectation of privacy in one’s home

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is the “curtilage” of a property and why does it matter?

A

“Curtilage” consists of those buildings and surrounding areas in close proximity to a dwelling which are habitually used for family purposes

Why it matters:

Only searches affecting a residence and its curtilage require Fourth Amendment protection

Remember:

A reasonable expectation of privacy does not extend outside a person’s curtilage

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What factors determine whether an area falls within the definition of curtilage?

A
  • Proximity to the home
  • Whether it is enclosed
  • The nature of the uses to which it is put (intimate details)
  • Steps taken to prevent observation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Does aerial surveillance constitute a Fourth Amendment search?

A

Even if area is within curtilage, aerial surveillance typically does not constitute a search because viewing from public airways is routine and does not involve physical invasions

Possible exceptions:

The distance above the ground or if the flyover interferes with the use of the property (wind, dust, or threat of injury) may constitute a search

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

When may tactile manipulation constitute a seach?

A

Tactile manipulation may constitute a search because a physical inspection done in a exploratory manner goes beyond mere visual inspection

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Does a sniff test constitute a Fourth Amendment search?

A

A sniff test does not constitute a search because information is not being obtained through an invasion of privacy that society is willing to recognize (distinguished from tactile manipulation)

Remember:

A person does not have a reasonable expectation of privacy in the smells that come from their property

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Is there a reasonable expectation of privacy when a person conveys information to a third party?

A

No

A person who knowingly exposes information to the public even in his own home or office is not protected by the Fourth Amendment

Includes misplaced reliance on the loyalty of others, information conveyed to a confident informant, imparted to a bank, pen resgisters, trash left on a public street, or a person’s physical characteristics exposed to the public

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

When does an electronic tracking device implicate a Fourth Amendment search?

A

When an electronic tracking device reveals the existence of something in your home that could not otherwise be obtained without a physical intrusion

Examples:

  • Can follow on public roadways and public places
  • Cannot follow onto private property to reveal information
  • Cannot place a GPS device onto private property without consent for obtaining information (monitored all aspects of travel for a month)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

When does amplification of the normal senses turn regular police activity into a Fourth Amendment search?

A
  1. ) The device is not commonly used by civilians in society; and
  2. ) The device is used in such a way that it permits the police to learn matters that are occurring in private, as to which the persons concernced have a justifible expectation of privacy

Note:

Magnitude of the crime may reduce the expectation society will recognize (WMD v. drugs)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What constitutes a Fourth Amendment seizure (can be persons (usually) or property)?

A

A person is seized in the Fourth Amendment context only if there has been an application of physical force or submission to a showing of authority

Test for Temporary Seizure:

  • When a reasonable person would not feel free to leave or otherwise ignore the police

Note: A person need not be told they can refuse to cooperate and handcuffs are a factor but not determinative

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What constitutes physical force under a Fourth Amendment seizure?

A

Seizure by physical force requires physical control or restraint

Note:

Even if a person or thing detained is the unintended object of detention, a seizure still occurs if it is willful

Example:

Being shot or a police barricade preventing forward progress

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What constitutes a submission to the assertion of authority under a Fourth Amendment seizure?

A

Seizure by submission requires a show of authority and submission to that authority

Test (Objective):

Under all circumstances a reasonable person would feel free to decline the officer’s request and go about his business

  • Police may ask questions, examine items
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Factors to consider under the circumstances include:

A
  • The place where the encountered happened
  • Whether the officer displayed weapons
  • The number of officers present
  • Officer’s words or tone of voice
  • Whether the officer keeps your license, etc.
  • Whether the officer identifies himself as police
  • Individual told they are being investigated or are subjected to random questioning
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Has a seizure occurred when a suspect flees from an authority?

A

No

A suspect that flees without submitting to the authority - there is no submission and therefore no seizure

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Seizure - Bus Sweeps:

A

Officers DO NOT need to advise bus passengers during encounters of their right not to cooperate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Probable Cause Standard/Rule:

A

Probable cause is that quantum of information that would warrant a reasonable person in believing that a crime has been or is being committed or specific items related to criminal activity will be found at a specific place

Applies to fullscale intrusions - searches, seizures, and arrest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Sources of information for Probable Cause:

A

Officer Observations:

Easy to detemine

Affidavit must contain sufficient information

Informants:

Totality of the Circumstance: Based on the informant’s veracity, reliability, and basis of knowledge

  • Police corroboration
  • Officer expertise
  • Detail in tip
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is a warrant?

A

A warrant is a judicial authorization for police action, either to search a particular place (a search warrant) or to arrest particular person (an arrest warrant)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What does a valid warrant require?

A

A valid warrant requires:

  • Oath or affirmation
  • Issued by a neutral and detached magistrate
  • Particularity
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is required to support the oath or affirmation element for a valid warrant?

A

The officer must specify facts giving rise to probable cause in an affidavit attached to the application for a warrant or by a sworn oral statement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What is required to support the neutral and detached magistrate element for a valid warrant?

A

The person issuing the warrant does not need to an attorney or judge but they cannot have an interest in the matter and must be capable of determining whether probable cause exists for the requested warrant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is required to support the particularity element for a valid warrant?

A

The warrant must particularly describe the places to be searched and the persons or things to be seized

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Specify the standard of particularity regarding the places to be searched and the persons or things to be seized?

A

Places To Be Searched:

The description must be sufficiently precise so that the officer executing the warrant can with reasonable effort ascertain and identify the place intended

Persons or Things to be Seized:

The description must ensure that the officer can point to specific articulable facts that serve as a valid basis for the warrant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Particularity Requirement:

Places to be Searched: Things to Remember…

A

Ambiguity:

The particularity requirement is not satisfied if a seemingly adequate description turns out to be so ambiguous that the officer is unable to determine what premises to search

Mistake:

The validity of a search of the wrong place depends on whether the officer’s failure to recognize the mistake is objectively reasonable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Exigent Circumstances Rule

(Probable Cause + Exigency)

A

Where police can show a plausible claim of specially pressing or urgent law enforcement need that waiting for a warrant would be dangerous or harmful - time is of the essence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Evaluating Exigency

An exigency could be based on…?

A
  • Risk of safety and the need for immediate aid
  • Risk of evidence being destroyed, removed, or lost
  • Risk of felon escaping or causing further injuries
  • Whether the victim or criminal is still on the premises
  • Community caretaking

Limitations:

The search must be restricted by the exigencies that justify its initiation and must end when the exigency

Entry into a home cannot be immaterial

34
Q

Plain View Rule

(Probable Cause + plain view)

A

Allows a warrantless seizure of property under certain circumstances:

  • The police must a have prior legal justification for entry or for being where they are
  • Probable cause plus warrant, warrant exception or consent*
  • Must be immediately apparent to the police that they have evidence or contraband before them

Must have probable cause to believe it is evidence, cannot conduct further searching for probable cause, cannot exceed scope of justification

35
Q

Automobile Exception

(Probable cause + automobile exception)

A

Where an officer stops a vehicle or comes across it is in a public place and has probable cause to believe it contains evidence of a crime it may be searched immediately or at the stationhouse

  • May extend to any container found in the vehicle that could contain the object of the search
  • Focus is on container - may not search immediately unless container is located inside the vehicle - includes containers owned by passengers
36
Q

Containers Not In Cars Rule

A

Not an automobile exception

  • There is no danger in waiting for a warrant
  • Can be seized at least temporarily to gain warrant
37
Q

Containers In Cars Rule

A

Can search and open any container as long as there is probable cause to believe that there is contraband that would fit in that container which there is no probable cause to search as long as the contraband for which you are searching can fit in that container

38
Q

Passengers Personal Belongings Rule

A

Police can search a bag they know belongs to a passenger when there is no probable cause to believe the passenger was involved in the crime

39
Q

Reasonableness Searches:

Balancing Test:

A

If a search or seizure is conducted without probable cause and a warrant the court will look to determine if the search was unreasonable by balancing individual rights and government interest

Individual 4th Amendment Rights:

  • Human Dignity and the right to be left alone
  • Invasiveness of search or seizure
  • Trauma and fear

Governmental Interest:

  • Officer safety and public safety
  • Crime prevention and protection
  • Seriousness of offense
40
Q

How is reasonable suspicion defined?

A

Specific, objective, and articulable facts, together with rational inferences that would warrant a reasonable officer in believing that crime is afoot

41
Q

Reasonable Suspicion:

Totality of the Circumstances:

A

Reasonable suspicion is based on the totality of the circumstancesas viewed by a reasonably trained police officer

  • Officer need not observe unusual conduct
  • Uncommon suspect activity and suspicious behavior
  • Unwillingness alone is insufficient but a factor
  • Fleeing in high crime area is enough, not flight alone
  • Narcotics and relationship to weapons
  • Give deference to police officer experience
  • Generalized anonymous tip is insufficient for reasonable suspicion
42
Q

Terry Stops and Searches (Stop and Frisks)

A

Police may stop somone suspected of any crime and may search someone suspected of a dangerous crime based on “reasonable suspicion” alone

43
Q

Terry Stop (Seizure):

A

Reasonable if police officer can point to specific articulable facts taken together with reasonable police officer in believing the suspect is or about to be enaged in criminal activity

44
Q

Terry Search (Search):

A

Reasonable if the officer can point to specific articulable facts that taken together with reasonable inferences would warrant a reasonable officer in believing that the suspect may be armed and presently dangerous

** Limitations: Only applies to weapons**

45
Q

Scope of Terry (Seizures):

A
  • May detain (or take diligent steps) as long as it takes to alleviate reasonable suspicion or elevate to probable cause
  • Cannot detain indefinitely (circumstances)
  • Cannot not transport or put in custody - looks like arrest
  • Can ask for ID; refusal may elevate to probable cause
  • Fingerprinting in the field may be okay if quick (10 mins)
  • Can ask driver and passenger to step out of car under reasonable suspicion
  • Dog sniff of person/car’s exterior permitted; cannot seize items to be sniffed
46
Q

Scope of Terry (Searches):

A
  • Limited to frisking for weapons
  • Can open box or briefcases or pat down
  • Can squeeze and go under multiple layers without touching skin
  • Feeling suspected contraband may elevate to probable cause
  • May conduct limited search of the interior of a car if driver or occupant is believed to be armed or dangerous
47
Q

Elevating to Probable Cause:

A

Reasonable suspicion may be elevated to probable cause if in the exercise of a diligent and reasonable investigation officers obtain that quantum of information that would lead a reasonable person in believing that a crime has been or is being commited

Example:

Legitimate feel for weapons -> suspicion matures into probable cause -> plain feel allows seizure

48
Q

Search Incident to Arrest:

A

Probable cause to search is not required if the search is conducted as an incident to a valid arrest

49
Q

What constitutes a “valid” arrest?

A

At a minimum arrests must be based on probable cause or that quantum of information that would warrant a reasonble person in believing that crime has been or is being committed and that the person being arrested committed or is committing the crime

50
Q

Arrest made in the Home:

A

A warrant is always required to arrest someone in the home:

  • Arrest made in the arrestee’s home needs an arrest warrant and probable cause to believe that the person will be found there (officer determination)
  • Arrest made in a third party’s home needs an arrest warrant and a valid warrant to search the home (requires both an officer and a magistrate)
51
Q

What types of searches are allowed once the arrest made?

A
  • Search of the arrestee’s person
  • Search of place where arrest is made
  • Search of vehicles
52
Q

Search of the Arrestee’s Person:

A
  • Justified on officer safety and because the person’s privacy has already been envaded
  • Can search even if crime supporting the arrest needs no evidence
  • Can search in pockets even if weapons do not fit there
53
Q

Search of Place Where Arrest is Made:

A
  • Police may search the area within the arrestee’s “immediate control” from which he might grab things (grab area/wingspan)
  • May search new areas if the arrestee’s asks to go from place to place
  • Police may search “immediately adjoining” areas without probable cause or reasonable suspicion
54
Q

Search of Vehicles:

A

Search justified only when the arrestee is unsecured and within reaching distance of the passenger compartment OR reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle

  • Cannot search trunk unless officer has probable cause and auto exception (no immediate control)
55
Q

Special Needs

(Searches Outside General Law Enforcement):

A

If a special need can be shown the police need not show reasonable suspicion or probable cause to conduct a warrantless search or seizure

  • The special needs exceptions are justified on interest balancing
56
Q

Inventory Searches:

A

Inventory searches arise out of a valid arrest where the police can search arrestee, belongings, or car

  • The search is reasonable if the initial seizure of the property was reasonable, AND the police acted in good faith
57
Q

Administrative Searches:

A

The purpose of an administrative search is not law enforcement per se but rather a civil concern of public safety in pervasively regulated industries

Has a reasonable administrative scheme

  • School Searches
  • Drug Testing
58
Q

Roadblocks / Checkpoints:

A

Reasonable only if the primary purpose for conducting them is for a non-law enforcement purpose of immediate concern

A roadblock does not violate the Fourth Amendment if:

  • The primary purpose is not law enforcement
  • The police have no dicretion in conducting it
  • Law enforcement may be secondary purpose, cannot be primary
  • License/Registration checks are okay
59
Q

Non-Police Searches:

A

A search conducted by a non-governmental actor that does not violate the Fourth Amendment

60
Q

Consent Searches:

A

A search that is valid when given through consent voluntarily

  • Voluntary consent searches are reasonable
61
Q

What makes a consent search valid?

A

Voluntary - Subjective Mind of Consenter:

  • Absence of force
  • Absence of coercion
  • Absence of threat
  • Absence of undue of influence
  • Warning (but not required)
  • In custody
  • Prior Knowledge
  • Reluctance of suspect to consent
  • Police tactics and trickery
62
Q

Third Party Consent:

A

Common Authority: Mutual use of property by persons having joint access and control where it is reasonable to say that any cohabitant could consent and the others assumed the risk that the person would give such consent

Disagreement: Police cannot rely on other’s consent when person of common authority objects

Mistake: Police may be wrong as to third party’s right to give consent, as long as reasonably wrong unless cohabitant is physically present and objects

63
Q

Third Party Consent - Special Relationships

A
  • Parents may consent for children

(including adult children if parents had access to property)

  • Children may consent for parents in certain circumstances

(depends on the child’s age)

  • One spouse may consent for the other spouse if they live together
64
Q

Scope of Consent:

A

The scope of the consent is limited to what a reasonable person would have understood

Terms and Revocation: Consent terms can be delineated from the outset and consent may be revoked at any time during the search

Reasonable Suspicion: If a person withholds consent for an item, police may hold it if they have reasonable suspicion to do so until such time as reasonable suspicion is alleviated or matures into probable cause

65
Q

Discretion and Profiling: Pretext Stops:

A

A pretextual search or seizure does not violate the Fourth Amendment if the officer had probable cause because the subjective intent of the officer does not matter if probable cause existed

66
Q

Discretion and Profiling: Notice

A

A criminal statute or ordinance must provide fair notice of precisely what acts are prohibited and must provide explicit standards for law enforcement to follow

  • Statute will be held void for vagueness
67
Q

Discretion and Profiling: Drug Courier Profiles

A

Profiles are permissible so long as factors on the profile raise suspicion

68
Q

The Exclusionary Rule:

A

All illegally obtained incriminating evidence is suppressed and not allowed into evidence against the defendant

  • There must be some evidence to be suppressed
69
Q

The Exclusionary Rule Exceptions:

A

Good Faith: What a reasonable officer would have done under the circumstances. Applies to search or seizure that is supported by a warrant

Standing: A defendant may seek to exclude evidence based on an illegal search only if the search infringed on his own reasonable expectation of privacy in the place to be searched not someone else’s place

  • Overnight guest do have a reasonable expectation of privacy

Knock and Announce: Likely has a civil rights violation

70
Q

Fruit of the Poisonous Tree Doctrine:

A

Will exclude evidence that is derived from evidence that is obtained as a result of an illegal search or seizure

71
Q

Fruit of the Poisonous Tree Doctrine: Three Exceptions

A

Attenuation: Evidence from a illegal search or seizure is not excluded when it is so attenuated from the illegal action as to dissapate the taint

Independent Source: Evidence from illegal search or seizure is not excluded if officers establish that they had an independent source for acquiring it

Inevitable Discovery: Evidence from illegal search or seizure is not excluded if officers can establish that it is “highly likely or inevitable” that evidence would eventually have been discovered by legal means

72
Q

Fruit of the Poisonous Tree Doctrine: Attenuation Factors:

A

Factors to Consider:

  • Flagrant illegality of what a reasonable officer would do
  • Temporal proximity from illegality and the evidence (time)
  • Where the defendant was at the time (in custody or not)
  • Intervening circumstances

(Example: speaking with family, attorney, Miranda Rights)

  • Nature of the fruit
73
Q

United States Constitution - The Fifth Amendment

A

No person shall be compelled in any criminal case to be a witness against himself

  • Requires that fall confessions be made voluntarily and not extracted by threats of violence, promises or the exertion of improper influence
74
Q

What do Miranda warnings apply to:

A

Applies to statements that are made in response to custodial interrogation that are testimonial

  • Failure to Mirandize affects only the confession, thus the fruits of the confession are still admissible (Miranda Remedy)
  • An involuntary confession will suppress the confession and the fruits of the confession
75
Q

Custodial interrogation:

A

Questioning initiated by law enforcement after a person is taken into custody or is otherwise deprived of his freedom of action in any way

Factors To Consider:

  • Physically free to leave
  • Use of force? Show of gun?
  • Informed free to leave?
  • Defendant initiating contact?
  • Atmosphere of questioning
  • When placed under arrest
76
Q

Testimonial Statements:

A

Testimonial evidence includes that which conveys information via words and the mental thought process of defendant but does not include physical evidence

77
Q

Invocation of Fifth Amendment Rights:

A

Invoking Right to Counsel:

  • The invocation must be clear
  • Ambiguous or equivocal invocation will not cease questioning
  • All questioning ceases when a suspect invokes their right to silence or their right to an attorney

Invoking Right to Silence:

  • Silence DOES NOT invoke the right to silence
78
Q

The Fifth Amendment - Waiver of Right to Be Silent:

A

The waiver of one’s right to be silent must be knowing, intelligent, and voluntary

79
Q

Exceptions to Miranda Warnings:

A

Impeachment:

  • Can use unmirandized statements for impeachment purposes
  • Can be used only if D testifies and if D testifies differently

Emergencies/Public Safety Exception:

  • When there is a threat of immediate danger

Booking Exceptions:

  • Do not need to mirandize before routine booking questions because routine booking questions are not considered an interrogation
80
Q

Fruit of the Poisonous Tree - Exclusionary Rule:

A

Illegal Confession that produces leads/witnesses

  • Exclusionary Rule does not apply

Illegal confession that produces physical evidence

  • Exclusionary Rule does not apply

Illegal confession that produces later confession

  • Exclusionary Rule does not apply
  • Remember: Cannot deliberately evade Miranda*
81
Q

United States Constitution - The Sixth Amendment:

A

In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense

82
Q

The Sixth Amendment - Right to Counsel:

A

Does not apply until the defendant is charged in a criminal prosecution and when a critical stage has occurred:

  • Trial
  • Interrogation
  • Preliminary Hearings
  • Arraignment

Once formal charges have been brought against the defendant the right to counsel attaches

Criminal Procedure (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions