Criminal Procedure Flashcards
Fourth Amendment - what it does
Prohibits unreasonable searches and seizures
A search is per se unreasonable unless it is conducted pursuant to a warrant or falls within an exception to warrant requirement
What gov has to show to have a warrant issued (search vs. arrest)
Probable Cause
Search Warrant - more probable than not that contraband or evidence of a crime is presently located in the area to be searched
Arrest - more probable than not that a crime has been committed and the person to be arrested committed it
**both must be sufficiently particular as to person and place
Standing - To assert a violation of the Fourth Amendment, a suspect must show:
Reasonable expectation of privacy in the area searched or the thing seized
Reasonable Expectation of Privacy - two elements
- subjective expectation of privacy
- objectively reasonable
**heightened in home and the 30-50 ft surrounding it (i.e. yard)
Exclusionary Rule - what it is and limitations
Prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial.
Fruit of the poisonous tree doctrine - evidence derived or obtained from illegal govt conduct is excludable against D
doesn’t apply to grand jury proceedings, civil cases, parole hearings, admin cases, violations of the knock and announce rule, or evidence seized in violation of miranda
Exclusionary Rule
Fruit of the Poisonous Tree - Exceptions
- Independent source
- Inevitable discovery
- Intervening acts of freewill by the D
- Attenuation - evidence challenged is too remote from unlawful search or seizure
Warrant Exceptions
BACH’S PIES
B - BORDER searches A - AUTOMOBILE searches C - CONSENT searches H - HOT pursuit S - SCHOOL searches P - PLAIN view I - searches INCIDENT to arrest E - EMERGENCY searches S - STREET encounters
Warrant Exception - Auto Stop
to stop a car, police must show: (1) probable cause a traffic violation has occurred; or (2) reasonable suspicion of criminal activity
- if car is parked then only “articulable basis” needed
- mistake of law for violation ok as long as reasonable
- doesn’t matter if traffic infraction isn’t why stopped just need to ask if could’ve stopped the car for an infraction
Warrant Exception - Search of the auto after the stop
a warrantless search of car and containers is permissible provided it is predicated on probable cause that the vehicle or occupants or recent occupant contains contraband or evidence of a crime
Warrant Exception - searching car incident to a recent occupant’s arrest: requirements
Arizona v. Gant
- The arrestee cannot be safely secured and is within reaching distance of the passenger compartment at the time of the search
- It is reasonable to believe that the car contains evidence relevant to the arrest that was made
- *need probable cause or consent to search trunk
- *need warrant to search a cell phone
Police checkpoints on the road - requirements
- stop cars using a neutral, articulable standard
2. serves purpose related to automobiles and their safety
Warrant Exception - Hot Pursuit
while actively pursuing a felon, police can search for anything related to the pursuit or can search for their safety
can be used to prevent destruction of evanescent evidence
Warrant Exception - School searches
School authorities only need reasonable grounds for believing that a search will yield evidence that a penal law or school rule has been violated
**Students have fewer First and Fourth Amendment rights and more limited REP than adults
Warrant Exception - Border searches
at borders officials can conduct routine searches of persons and their luggage. do not even need reasonable suspicion
these are per se reasonable
have articuable suspicion to detain, search and questio if appear to fit profile of drug trafficker
Warrant Exception - Plain view
Police may seize evidence in plain view without a warrant
-police can’t use anything not available to public to view this evidence (flashlights ok)
Warrant Exception - Search Incident to Arrest
police may search a lawfully arrested person in his immediate surrounding area without a warrant
-may sweep the area for officer safety of with reasonable belief an accomplice may be present
Warrant Exception - Emergency Searches
The police may enter constitutionally protected areas is:
- police have objective reasonable belief that there is an emergency and an immediate need for the police to protect persons and property
- reasonable connection between emergency and area searched
**look at timing. lose this exception when the emergency is over
Warrant Exceptions related to street encounters
Stop and request information- articuable basis
Stop and frisk - reasonable suspicion
Stop and arrest - probable cause
Warrant Exception - Stop and Frisk - standard
Terry Stop
Police need reasonable suspicion to believe that the suspect is engaged in criminal activity
If reasonable suspicion the person is armed and dangerous then can frisk. plain touch only - if have reasonable belief that what they feel is contraband or a weapon then they may seize the suspected item
Warrantless Stop and Arrest
Probable Cause
Requires facts and circumstances that would lead a RPP to conclude it is more probable than not that a crime has been or is about to be committed and the person to be arrested is the one that committed/was going to commit the crime
totality of the circumstances is the test
Double Jeopardy Clause
Protects D from multiple prosecutions or punishments by the same sovereign for the same offense
Use Blockburger test - whether each offense requires proof of at least one element or fact that the other statute does not
lesser included offenses - where it is impossible to commit one without the other. must merge or violate double jeopardy
When does DJ attach?
Jury trial - when jury sworn
Non-jury - when first witness sworn
Miranda Warnings - what triggers rights?
5th amend rights
Custodial Interrogation
custody - look at totality of circumstances. objective test- would a RPP believe she was not free to leave?
interrogation - questioning reasonably likely to illicit a criminal response that is initiated by law enforcement
- *doesn’t apply when D is not in custody (at home, over the phone)
- *if right to counsel hasn’t attached yet, D can waive miranda rights. must be voluntary
Effect of Miranda violation
Incriminating statements may not be used against D at trial.
Exceptions:
-can be used to impeach
-emergency exception - police can question about where gun is or kidnapped victim
-doesn’t apply to derivative evidence - evidence found as a result of D’s incriminating statements in violation of Mirada.
When does right to counsel attach?
When D in custody CLEARLY and UNEQUIVOCALLY asks for an attorney (either after miranda warnings or when in front of judicial officer and hears the charges against him)
**this right is offense specific
Evidence of line-up is inadmissible at trial if
- made without presence of attorney (post arraignment, after assigned to counsel)
- it was the fruit of an unlawful arrest
- was unduly suggestive
court considers totality of the circumstances
Corpus Delicti Rule
C can’t be convicted solely on confession without some additional proof crime has been commited
