Criminal Procedure Flashcards
What are the constitutional protections afforded under the 4th Amdt.?
- Prohibition against unreasonable searches and seizures
- Warrant shall not issue without probable cause
The 4th Amdt protects defendant from an unreasonable search by the government in all areas where D has a reasonable expectation of privacy. If he does not have a reasonable expectation, he cannot complain about the reasonableness of the search, no matter how reasonable. If he does have reasonable expectation of privacy, then we reach the merits.
What are the constitutional protections afforded under the 5th Amdt.?
- Privilege against compulsory self-incrimination
2. Prohibition against double jeopardy
What are the constitutional protections afforded under the 6th Amdt.?
- Right to speedy trial
- Right to public trial
- Right to trial by jury
- Right to confront witnesses
- Right to compulsory process for obtaining witnesses
- Right of assistance of counsel in felony cases and misdemeanor cases in which imprisonment is imposed
What are the constitutional protections afforded under the 8th Amdt.?
Prohibition against cruel and unusual punishment.
Excessive bail
What types of government actions constitute a seizure of a person?
When, under the totality of the circumstances, a reasonable person would feel that he was not free to decline officer’s requests or otherwise terminate the encounter (ex. arrest, seizure of persons by gov’t)
What are the four global questions that comprise the inquiry in a search and seizure question?
- Is the search or seizure governed by 4th Amdt?
- If warrant, was the search and seizure with warrant conducted in conformity with the 4th Amdt.?
- If no warrant, was the search and seizure without warrant conducted in conformity with the 4th Amdt.?
- Even if search and seizure was unconstitutional, is evidence gathered nonetheless admissible?
What is the test for determining whether a search/seizure is governed by the 4th Amdt?
- Was it executed by government agent?
- Was it of an area/item protected by the 4th Amdt?
- Did government agent either physically intrude into protected area to obtain item, or instead violate the individual’s reasonable expectation of privacy?
- Did the individual subjected to the search have standing to challenge the search?
Who are “government agents” for the purposes of determining whether a search/seizure is governed by the 4th Amdt.?
- Usually uniformed police officers, either on or off duty.
- Private security guards but only if they are deputized as officers of the public police.
- Private citizens acting at directive of police
- Public school administrators when acting within the scope of their duty (principal, vice principal)
What are areas/items protected by the 4th Amdt.?
- Persons
- Houses (including hotel rooms, including curtilage)
- Papers, letters, personal correspondence
- Personal effects (backpacks, purses, cars, belongings)
Business
What are examples of objects held out to the public, where there is no reasonable expectation of privacy?
Mnemonic: Public Observation Generally Obliterates Fourth Amendment Protections
- Physical characteristics (sound of voice, handwriting)
- Odors that emanate from car or luggage
- Garbage (left at curb for collection)
- Open fields (areas outside curtilage, including barn)
- Financial records held in a bank
- Airspace (land visible from public place, even plane or helicopter).
- Pen registers (devices that list the phone numbers someone has dialed)
Also, paint on the outside of one’s vehicle.
How does one determine whether government agent physically intruded/violated expectation of privacy? (For purposes of determining whether 4th Amdt. applies)
Minority: trespass test - physical intrusion into constitutional area in order to obtain information
ex. GPS tracker on car (need a warrant)
Majority: privacy-based test - if agent’s search/seizure of constitutionally protected area violates reasonable expectation of privacy. Requires both:
- Actual (subjective) expectation of privacy over area searched/item seized AND
- Privacy expectation is recognized by society as reasonable
Note: on second prong, use of sense-enhancing tech that isn’t in public use to obtain info from inside suspect’s home that otherwise couldn’t be obtained without physical intrusion violates the legitimate expectation of privacy (ex. thermal imaging tech)
How does one determine whether an individual has standing to challenge conduct in court, such that the 4th Amdt. will apply to a search or seizure?
Must be the individual’s own constitutional rights that have been infringed - their own property, not third party’s rights. Must have reasonable expectation of privacy in area from which item was seized.
One may not raise a violation of another’s constitutional rights at a suppression hearing.
Ex. own home, overnight guests in general areas of that place.
No standing if using premises solely for business, one-time use.
No standing re: passenger in car, no expectation of privacy.
No standing if you’re validly arrested in your friend’s house with arrest warrant, but the cops didn’t get a search warrant for your friend’s house! (Note, however, if he were an overnight guest, this does constitute privacy interest)
What is the test for determining whether a warrant was executed and conducted in conformity with the 4th Amdt.?
- Was the warrant issued by a neutral and detached magistrate? (conduct must demonstrate bias in favor of prosecution, hard to reach)
- Was the warrant supported by probable cause and particularity?
- If not, did the police rely upon the defective warrant in good faith?
- Was the warrant properly executed by the police?
What is the probable cause requirement for issuing a search warrant?
Warrant will only be issued if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. Officer lays out affidavit establishing the circumstances that enable determination of probable cause.
Probable cause - trustworthy facts, knowledge sufficient for a reasonable person to believe that suspect committed or is committing a crime for which the arrest is authorized by law
Hearsay may be basis of the probable cause.
Can informant tips be used to demonstrate probable cause in issuing a warrant?
Yes, if it meets the “totality of circumstances” test. Even if the affidavit doesn’t establish the reliability/credibility of informant, may still be used. “Common sense/practical determination” must be met. This is a fluid and fact-specific test. Factors include: reliability, basis of knowledge, credibility (previously provided good tips, i.e.)
Don’t need to reveal identity of the informant.
What is the particularity requirement for issuing a search warrant?
Must describe with reasonable precision the place to be searched and the items to be seized. If it doesn’t, the warrant is unconstitutional, even if the affidavit includes detail.
The entire house - too broad.
What is the good faith exception to an otherwise constitutionally deficient search warrant?
Evidence obtained by police in reasonable reliance on a facially valid warrant may be used in prosecution, even if the warrant was not supported by probable cause. (If the police obtained a warrant and it was invalid.)
When will a search warrant be held invalid (based on the affidavit supporting it)
- False statement by affiant (officer applying for warrant);
- Affiant intentionally/recklessly included the false statement, AND
- False statement was material to the finding of probable cause.
What are the exceptions to application of the “good faith” exception, when analyzing a constitutionally deficient search warrant?
- If affidavit was so lacking in probable cause that no reasonable officer would have relied upon it
- If warrant so lacking in particulars that officer could not reasonably presume it valid,
- If affidavit that the magistrate relied upon included material knowing/reckless falsehoods that were necessary to finding of probable cause
- If magistrate who issued the warrant is biased in favor of prosecution
May a warrant include searching a non-suspect third party?
Yes. As long as there is probable cause.
What is the test for determining whether police officers properly executed a warrant?
- Compliance with the warrant’s terms and limitations (though may detain within premises, just can’t take them away; can’t look for iPad in a wallet)
- Compliance with “knock and announce” rule (knock, announce purpose, wait reasonable time for admittance)
When does a police officer need not comply with the “knock and announce rule” when executing a search warrant?
If the officer reasonably believes that doing so would be:
- Futile
- Dangerous, OR
- Would inhibit the investigation.
And anyways, evidence collected post-failure to knock and announce can still be used.
What does a search warrant allow police to do w/r/t persons on the premises?
Can detain occupants during a search.
Cannot search persons found on premises who were not named in warrant.
Cannot follow, stop, detain, or search people who left premises shortly before warrant was executed.
What are the major exceptions to the requirement that searches and seizures be conducted pursuant to a warrant? (8)
ESCAPIST mnemonic.
- Exigent circumstances (evanescent, hot pursuit, emergency aid)
- Search incident to lawful arrest
- Consent
- Automobiles
- Plain view
- Inventory
- Terry Stop and Frisk (lesser intrusion)
- Special needs doctrine
PLUS
- Administrative inspections and searches
- Searches in foreign countries and at the border
What are examples of exigent circumstances that allow an officer to conduct a search and seizure without a warrant?
- Evanescent - may seize evidence likely to disappear before warrant can be obtained (yes to DNA under fingernails; no to drug levels in blood due to enhanced invasion)
- Hot pursuit - police may even pursue into private dwelling (of suspect or third party - anything found in plain view is admissible)
- Emergency aid - addressing emergencies that could affect health or safety (objectively reasonable test); injury need not be life threatening
What are the requirements imposed upon a search incident to arrest (such that officer is conducting search and seizure without warrant, falling into exception)?
- Arrest must be lawful/constitutional (based on probable cause)
- Timing (contemporaneous with arrest)
- Geographic scope (wingspan, cell phones physically but not the data within, includes passenger cabin of car - even closed containers). You can search anything on the person, doesn’t need to be subject to frisk requirements.
Automobile - it doesn’t matter what the arrest is for. They can then search the area within the immediate control of driver (entire passenger area - unlocked glove compartment, back seat).
Once the arrested driver is under complete control (e.g. secured in the squad car), then they can ONLY search when they have reason to believe an item connected to the arrest is still in that automobile. In both situations, may search anywhere within the passenger compartment, but not the trunk.
To search the trunk, need another exception (automobile exception, consent, e.g.)
Police can also make protective sweep if they believe accomplices may be present.
What is the consent exception to the warrant requirement?
- Must be voluntary (but no need to have knowledge of the right to withhold, and police have no duty to report that).
- Limited in scope (but generally extends to all areas which reasonable person under circumstances would believe it extends; can say “don’t go in my left pocket”)
- Person must have apparent authority to consent (apparent equal right to use or occupy the property; note here that if suspect grants consent but doesn’t actually have it, OK as long as police reasonably believed person had consent!
- Comports with shared premises rules (When adults share residence, any adult can consent anywhere within. However, cannot give valid consent when co-occupant is present and objects to search; however, if co-occupant objected and is removed, can act on the consent of the remaining occupant even if that person already voiced their objection)
Note: a parent who has access to the whole house can consent to the child’s room
Note: 4 only applies to rooms within the house. W/r/t a locked chest within a room that is not the consentor’s, then clearly shows that the exclusive right did not belong to consentor and that person did not have authority to consent.
What is the automobile exception to the warrant requirement?
Note: there can be cars involved in the other exceptions! Don’t reflexively assume that if a car is mentioned, this exception is implicated.
Does not eliminate the need for probable cause.
Standard: if police have probable cause to believe that vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain an item for which they had probable cause to search.
- can search passenger belongings (not just driver)
- if probable cause based on container in vehicle, can only search the container.
- YOU can look ANYWHERE, including the trunk!
Probable cause need not exist at start of auto stop. It can be acquired at any time before initiating a search (after running the plates, i.e.)
IF warrantless search is valid, can tow the vehicle to station and search it later. If police believe the auto itself is contraband, can seize from public place without warrant.
Note: can look in anything that might contain evidence.
What is the plain view exception to the warrant requirement?
Police may make warrantless seizure when they:
- Lawful access to the place from which item can be plainly seen
- Lawful access to item itself
- Criminality of item must be immediately apparent
If police are conducting a legitimate search for item X but come across another illegal item, they can always seize them whether or not they were searching for them.
What is the inventory exception to a warrant requirement?
At police station, police may make inventory search of arrestee’s belongings, pursuant to police policy. May also make inventory search of an impounded vehicle. Provided:
- Regulations governing inventory search reasonable in scope
- Search itself complies with those regs
- Search conducted in good faith (motivated solely by need to safeguard possessions and ensure officer safety - subjective)
What is the Terry stop and frisk exception to a warrant requirement?
Police officer may stop a person without probable cause if has articulable and reasonable suspicion of criminal activity. May require detainee to state name, and if reasonably believes person may be armed and presently dangerous, may conduct a protective frisk.
Reasonable suspicion is objective standard, not at all subjective.
Anything observed during stop and frisk, including through touch, is fair game. If stop and frisk was OK, anything of illegal nature that they observed can be seized.
What is the threshold question for whether someone is seized for purposes of 4th Amdt.?
Totality of circumstances, whether they felt free to leave or decline to answer questions
- Tone and demeanor of officer
- Whether individual was told had right to refuse consent
- When pursued, if stops and submits to authority or is restrained by officer
What is the permissible scope of a frisk in Terry stop and frisk (exception to warrant requirement)
Limited to a check for weapons, but if you find something else that upon plain feel is contraband, can seize that.
Scope of intrusion: patdown of outer clothing, unless specific info that a weapon is hiding. May order occupants out of a stopped vehicle and frisk them and search passenger compartment if reasonable belief that they are dangerous. Dog sniffs are OK so long as it doesn’t prolong a stop unreasonably.
May also make a sweep for confederates
When is evidence from a Terry frisk admissible?
Evidence is admissible from a pat down if seized based on “plain feel” that it was a weapon or contraband, and without manipulating it.
What is the special needs exception to the warrant requirement?
Sometimes a search will be reasonable even if suspicious-less. Usually for special needs of school or government officials. Justification is that government has heightened need, and person being searched should have diminished expectation of privacy. Some of these include:
- Administrative searches to seize spoiled/contaminated food
- Administrative searches of a business within highly regulated industry
- Searches of prisoners before gen pop entry
- Searches of airline passengers prior to boarding
- Searches of parolees and their homes as long as there is a statute so authorizing the searches
- Searches of gov’t employee desk and file cabinets when scope is reasonable and there is work-related need/reasonable suspicion of work-related misconduct
- Drug test of railroad employees in accident
- Drug test of people seeking customs employment in positions connected to drug interdiction
- Drug test of public school students participating in extracurriculars
- Some other public school searches
DOES NOT INCLUDE law enforcement programs whose primary purpose is to do general evidence gathering (narcotics stop points)
What are the requirements governing warrantless public school searches?
Public school officials don’t need a warrant to search students, provided they have reasonable grounds for the search.
Reasonable only if:
(1) moderate chance of finding evidence of wrongdoing,
(2) measures to carry out search are reasonably related to objectives of search, and
(3) search is not excessively intrusive based on age/sex of student, nature of infraction
Note that probable cause is not required.
What are the requirements governing foreign country/border searches?
4th Amdt. doesn’t apply to US officials conducting searches outside the US.
- If on border - roving patrols may stop even if only officer “reasonably suspects” that there are “illegal aliens,” and may stop at a fixed checkpoint. Can disassemble vehicle even without reasonable suspicion. Even illegally obtained evidence can be used in civil deportation hearing. Can do factory survey of work.
- International mail - can search w/ reasonable suspicion that it contains contraband.
- Detentions - if reasonable suspicion of smuggling contraband, may detain
What are the rules governing the establishment of police checkpoints on roads?
Can set up road blocks to stops cars without individualized suspicion, when:
- Stopped on basis of neutral, articulable standard (every car)
- Designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility (drunk drivers OK; narcotics are not).
If evidence is obtained as part of an unconstitutional search or seizure, may it nonetheless be admissible? If so, when?
The exclusion doctrine used to provide greater protections (can’t admit evidence when part of unconstitutional search and seizure). However, many exceptions to the exclusion doctrine over the years.
The remedy of suppressing the (unconstitutional) evidence will not be granted when:
- Police in good faith believed the warrant was valid
- Evidence is used at proceeding other than trial on merits (grand jury proceeding, preliminary hearing)
- When the evidence is used to impeach the defendant, who has testified.
What are the limitations on exclusion doctrine?
Evidence that was part of an unconstitutional search and seizure may still be admitted into evidence if:
- Can be used to impeach D testimony on cross, just can’t be used as evidence in prosecutorial case in chief;
- Failure to comply with knock and announce requirement doesn’t mean evidence will be inadmissible;
- Erroneous police conduct must be reckless, deliberate, or grossly negligent (criminal negligence not tort)
- Officer can make reasonable mistake when executing a search warrant, and the evidence obtained during that reasonable mistake will be admissible.
- Fruit of poisonous tree exception
What is the fruit of the poisonous tree/derivative evidence rule?
Evidence obtained after unconstitutional violation = fruit of poisonous tree. Generally, this is inadmissible unless prosecutors can show break in causal link through:
- Independent source
- Inevitable discovery
- Attenuation (“purges the taint” through time and intervening events, restores D’s free will)
Can police make pretextual auto stop? If so when?
Yes - if the police have probable cause to believe a driver violated a traffic law, may stop the car even if ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.
May police order occupants out of car after lawfully stopping vehicle?
Yes - in the interest of officer safety. And if he reasonably believes them to be armed, he may frisk them and search the passenger compartments for weapons.
Will a police officer’s mistake of law invalidate a seizure (in automobile stop)?
No, as long as the mistake was reasonable.
May police detain a suspect in order to obtain a warrant?
Yes, if they reasonably believe suspect hid drugs in home, may prevent him from going into home unaccompanied so doesn’t destroy drugs while they get a search warrant?
When can police make station house detention?
Need full probable cause.
When can officer use deadly force to apprehend a suspect? (this constitutes a 4th Amdt. seizure)
Can’t unless reasonable to do so under the circumstances (suspect poses danger to own life or life of others)
What are requirements for wiretapping?
This constitutes a search for 4th Amdt purposes. A valid warrant may be issued if:
- Probable cause
- Suspected persons involved in conversations to be overheard are named
- Warrant describes type of convo with particularly
- Wiretap limited to short period of time
- Wiretap terminated when desired info was obtained
- Return made to court, showing what convo was intercepted
What are the requirements for eavesdropping?
If you speak to someone who agreed to a wiretap or electronic monitoring, no 4th Amdt. claim.
What is the law of arrest?
When police take someone into custody, must be for
- Interrogation or
- Prosecution
It is considered de facto arrest when police ask someone to come in for fingerprinting or questioning
Standard of proof needed for an arrest: probable cause
It’s OK to arrest someone for any offense, even if the penalty is only a fine.
When does police officer need an arrest warrant? When does police officer NOT need arrest warrant?
Don’t need arrest warrant in public place, provided probable cause.
Need a warrant to arrest someone in their home, unless emergency.
Need an arrest warrant and a search warrant if they want to arrest someone in third party’s home
What are the three constitutional challenges a D can bring to suppress a confession?
- Miranda was not complied with
- Confession was involuntary
- Product of an illegal arrest
14th Amdt - due process (must be voluntary; but if involuntary confession, harmless error test - overwhelming evidence of guilt)
6th Amdt - right to counsel (after judicial proceedings have begun, can’t elicit incriminating statement after D charged)
5th Amdt - Miranda right (person in custody must, prior to interrogation, be informed of right to remain silent, anything said can be used against in court, attorney right, attorney appointed if indigent)
Exam analysis:
- Start with the assumption that a confession is admissible.
- If wants to keep it out, must allege a constitutional violation whose remedy is to suppress the confession (three:
(a) involuntary confession,
(b) confession that violate Miranda,
(c) confession that violate right to counsel).
What is the standard for a 14th Amdt. challenge made by D to suppress a confession?
Involuntary confession. TEST: totality of the circumstances. Will be deemed involuntary if confession made as product of police coercion that overbears suspect’s will.
If involuntary confession, cannot use as part of case in chief. If witness tells a different story after taking the stand, prosecution cannot impeach for PIS.
Even if involuntary confession, will be admissible if passes the harmless error test (overwhelming evidence of guilt)
What are requirements governing the 6th Amdt right to counsel?
Precludes officers from deliberately eliciting incriminating statement from D outside presence of counsel after D formally charged, unless waived right to counsel.
Does not apply to questioning on other offenses - unrelated, uncharged ones (standard: does each require proof of additional element the other crime doe snot require)
Waiver only if D “knowingly, voluntarily” waives.
Remedy: if at non-trial proceedings, apply harmless error. If entitled to lawyer at trial and didn’t get one, automatically reverses conviction.
Prosecution can still use these unconstitutionally obtained incriminating statements (e.g. confession) to impeach defendant’s contrary trial testimony. This can be in its case in chief.
At what pre-trial stages does the 6th Amdt right to counsel not attach?
- Taking blood samples
- Taking handwriting/voice exemplars
- Preliminary hearing determining probable cause to detain (but does apply in determining whether to prosecute)
- Photo IDs or pre-charge investigative line-ups
Formal charge - indictment by grand jury or charging papers by prosecutor. Anything after that must be through counsel.
At what post-trial stages does the 6th Amdt right to counsel not attach?
- Discretionary appeals (except those resulting from nolo or guilty pleas)
- Post-conviction proceedings
- Parole and probation revocation
What are the 4 core Miranda warnings that compose the 5th Amdt privilege against compelled self-incrimination?
- Right to remain silent
- Anything say can be used against in court
- Right to presence of attorney
- If cannot afford attorney, one will be provided
