Criminal Procedure Flashcards
Constitutional protections only apply to ___________.
Government action
Can private persons trigger constitutional protection under criminal procedure?
Yes:
1) Private persons acting as a government agent (government calls Joe’s neighbor and asks her to break into Joe’s house to see what she can find); AND
2) Defense counsel (both public and private) are treated as government actors for purposes of the Sixth Amendment with respect to effective assistance of counsel.
T/F - Police can approach anyone in a public place, and unless the encounter escalates to police preventing the person from moving around or leaving, there is no real constraint on what the police can do and no protection against what they discover.
True.
Example: Tailing a suspect, canvassing a neighborhood, and asking questions are perfectly fine.
What classifies a seizure?
Occurs when an OFFICER, by means of PHYSICAL FORCE OR SHOW OF AUTHORITY INTENTIONALLY terminates or restrains the subject’s freedom of movement.
TEST: Whether a reasonable person would feel free to disregard the officer.
Ex: Shooting a suspect; officer ramming a suspect’s car in an attempt to stop the car.
NOT Examples: Running over a third party while chasing a suspect (because the police did not intend to stop the third party).
What are the different types of seizures?
1) Stop and Frisk - “Terry Stops” are where an officer can stop an individual when the officer has REASONABLE SUSPICION, based on ARTICULABLE FACTS, to believe the suspect is or is about to be engaged in criminal behavior. During a Terry Stop, an officer can pat-down (frisk) a detainee for WEAPONS, but CANNOT initiate a search for evidence. If PROBABLE CAUSE DEVELOPS during a Terry Stop, the officer can then make an arrest;
2) Traffic Stops - Officers can pat-down the suspect. Officers do not need reasonable suspicion to stop drivers if they pull over everyone (e.g., checkpoints);
3) Arrests - Requires that there be PROBABLE CAUSE to believe that the arrested individual has committed a crime. Can be done WITH OR WITHOUT a warrant.
What is the burden hierarchy in search and seizure?
Conviction - Beyond a reasonable doubt
Arrest - Probable cause
Stop - Reasonable suspicion
What is a pretext arrest?
As long as the police have probable cause to believe an individual committed Crime A, police may arrest that individual on the basis of a HUNCH that there is another crime involved.
What are arrest warrants?
Authorizes an officer to arrest another. An arrest warrant is issued by a neutral and detached magistrate based on a finding of PROBABLE CAUSE to believe that the named individual has committed a particular crime.
The warrant MUST NAME the person and IDENTIFY THE CRIME being arrested for.
Allows officers to enter a home and arrest the individual.
Can an officer arrest another in their home without a warrant?
Absent a warrant to arrest, officers can arrest someone inside a dwelling if there are:
1) Exigent circumstances; OR
2) There is consent to enter.
What does exigent mean?
Felony hot pursuit or danger to others.
What are warrantless arrests?
No finding of probable cause by neutral and detached magistrate but officer has probable cause to believe the individual committed a crime.
NOTE: If officer SEES crime being committed or someone told officer a crime has been committed gives rise to do so.
T/F - If the crime was not committed in the officer’s presence, the officer can make an arrest ONLY for a crime that is a felony.
True.
Cannot arrest for a misdemeanor without being committed in the officer’s presence or the officer has a warrant.
What is the scope of a search incident to an arrest? What can evidence gathered be used for?
A LAWFUL arrest permits the arresting officers to make a contemporaneous search of the person arrested and the immediate area surrounding the person to:
1) Protect the officers’ safety and safety of the public; AND
2) To prevent the destruction of evidence.
ANY evidence discovered during a search incident to a lawful arrest can be used against the person arrested.
What are the search limits of an arrest on the street?
Can search the suspect and his person (including things within his wingspan, i.e. trashcan).
What are the search limits of an arrest at a home?
Can search the suspect and his immediate arrest area.
What are the search limits of an arrest in a car?
May search the passenger compartment of a vehicle as long as the person/suspect STILL HAS ACCESS to the vehicle at the time.
Cannot arrest a suspect, cuff him, put him in the back of the squad car AND THEN go back and search through the car. This is because the suspect is not a danger to the officers anymore; he cannot access a weapon from the squad car.
HOWEVER, IF it is reasonable to believe that the vehicle contains evidence of the offense of the arrest, such a search would be proper, even though the suspect would no longer pose a threat to the officers.
What are inventory searches?
When the police arrest a driver and impound his car, it may be searched for inventory purposes.
What is the key question to whether evidence of a search may come in?
WAS THE ARREST LAWFUL?
If the arrest is illegal–either because there was no probable cause or there was some other violation of the law–the presumption is that any evidence seized during the search incident to the arrest should be excluded from the prosecution’s case-in-chief.
What are the two things to look for on a “search and seizure” MBE problem?
1) Must have probable cause; AND
2) Search must be within its scope
If either is not present, the evidence will be excludable in the prosecution’s case-in-chief.
What classifies a search?
Occurs when the GOVERNMENT conduct violates a REASONABLE EXPECTATION OF PRIVACY.
What is a reasonable expectation of privacy?
Places where we do have an expectation of privacy against the government:
1) Homes;
2) Hotel Room Rented;
3) Offices;
4) Backyard of your home (curtilage / DOES NOT INCLUDE A HUGE FIELD);
5) Luggage.
Places where we do NOT have an expectation of privacy against the government:
1) Public streets;
2) Open fields (even if they are private property) - Done by flyovers;
3) Garbage cans LEFT OUT IN THE STREET; and
4) Abandoned property.
Is there a need for a warrant to perform a search?
Generally, the government needs a warrant to conduct a search if there is a reasonable expectation of privacy. Three requirements:
1) A search warrant must be issued by a neutral magistrate;
2) Must be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime; AND
3) Must describe the PLACE AND PROPERTY to be searched WITH PARTICULARITY.
IF THESE ARE NOT MET - the warrant is INVALID and the items seized pursuant to the warrant will be excluded from the prosecution’s case-in-chief.
Are there exceptions to the need for a warrant to perform a search?
There are seven major exceptions (ESCAPES):
1) Exigent circumstances - If officers are in “hot pursuit” or immediate danger, they may conduct a search without getting a warrant first. However, a warrant is necessary for a search if officers themselves CREATED THE EXIGENT CIRCUMSTANCES. ;
2) Search incident to arrest - If the arrest was LAWFUL,, a search warrant is unnecessary. SCOPE of the search is LIMITED to things within the reach of the defendant. A search incident to arrest for a serious crime can include taking a DNA sample from the arrested person.;
3) Consent - A defendant/suspect can consent to a search. Consent does NOT require the officer alert the subject of his right to refuse. “Mind if I look in that?” is enough. THIRD PARTIES with APPARENT AUTHORITY can allow a search. A search is invalid if the suspect is present and objects. HOWEVER, if the suspect is not present and an occupant (spouse) consents, then the search is valid;
4) Automobiles - If police have probable cause to believe an automobile contains CONTRABAND, they can search those parts of the vehicle, and containers inside, which could contain that contraband. They cannot search OTHER areas or containers (out of scope);
5) Plain view - If police are LEGALLY on the premises, they can seize ANY item in PLAIN VIEW OR PLAIN SMELL, even if that item was not named in the warrant;
6) Evidence obtained from administrative searches - There are two kinds–administrative warrants AND warrantless administrative searches. (see two cards from now); AND
7) Stop and frisks - “Terry Stops” as described before.
What has the US Supreme Court recently held with regard to DUI searches?
Generally, a warrant is required for a search incident to DUI arrests. A DUI arrest is not an exigent circumstance that allows for an immediate blood alcohol concentration test unless exigent circumstances are such that it is impossible to get a warrant (late at night so judge is unavailable for a warrant, far from a hospital).
What is evidence obtained from administrative searches?
Police do not need search warrants to conduct administrative searches. There are two kinds:
1) Administrative Warrants - Do not require probable cause (such as fire or health inspections of a building). Evidence, instrumentality, or fruit of a crime can be seized if SEEN during the administrative search.
2) Warrantless Administrative Searches - Conducted for NON-INVESTIGATIVE purposes, but if they turn up evidence of a crime, it can be used for arrest and subsequent prosecution.
Examples of warrantless administrative searches:
1) Airplane boarding areas;
2) International borders;
3) Highly regulated industries (liquor stores, gun shops, etc.);
4) Searches of students in public schools;
5) Special needs searches (drug testing of railroad employees after an accident);
6) Roadblocks for drunk driving or seeking information
What does the Fifth Amendment do?
Provides, among other things, that no person shall be compelled in any criminal case to be a witness AGAINST HIMSELF.
What is the scope of the Fifth Amendment Privilege against self-incrimination?
APPLIES TO NATURAL PERSONS, NOT CORPORATIONS OR UNIONS.
Only applies to TESTIMONIAL evidence, NOT PHYSICAL evidence.
Applies to testimony that would be incriminating (which includes links in the chain) that is LIKELY TO LEAD TO PROSECUTION AND CONVICTION. Can be invokes in ANY PROCEEDING as long as there is reason to believe the testimony might lead to future criminal prosecution.
HOWEVER, IF IMMUNITY IS GIVEN, THE RIGHT CANNOT BE INVOKED.
What classifies as a statement under the protection of the Fifth Amendment? When are the statements protected?
A statement that is made by an INDIVIDUAL TO THE GOVERNMENT.
The Supreme Court held that statements made as a result of CUSTODIAL INTERROGATION are inadmissible unless they are accompanied by procedural safeguards (i.e., you have a Fifth Amendment right not to be subjected to custodial interrogation without being given warnings first).
What does “custodial” mean?
The person being questioned has been arrested or is otherwise not free to leave (in the back of a police car).
If not in custody, no warning is required. Any statement or failure to respond to questions CAN be used against them.
T/F - Someone already imprisoned is not necessarily treated as being in custody when questioned about another crime. To be custodial, the prisoner must be removed from normal surroundings and not free to return to them.
True.
What does “interrogation” mean?
Involves either the official asking questions or engaging in other conversation or conduct that police know or should know will elicit a response.
Does NOT include volunteered statements, but does include induced statements.
Does NOT include routine booking questions.
What are the Miranda warnings?
Before conducting custodial interrogations, the police must inform the suspect of the following:
1) Right to remain silent;
2) Any statement made may be used against her in court;
3) She has the right to consult an attorney and to have the attorney present during questioning; AND
4) She has the right to have an attorney appointed if she cannot afford one.
FURTHER, Interrogators must ask whether the defendant UNDERSTANDS the rights (i.e., defendant understands English, can hear, and actually heard what was said).
When must interrogation cease?
1) Defendant INVOKES THE RIGHT TO REMAIN SILENT - says she does not want to talk. The right must be AFFIRMATIVELY INVOKED, it is not enough to just remain silent. After a SUBSTANTIAL PERIOD of time, police can go back to suspect, give warnings again, and seek to talk to her.
2) Defendant INVOKES THE RIGHT TO COUNSEL - Right must be AFFIRMATIVELY INVOKED (“I want a lawyer”). It is not enough to say “I think I should talk to somebody.” If invoked, all questioning must stop until either: (a) the lawyer is present, or (ii) the defendant re-initiates contact with police. Police CANNOT generally go back to defendant.
Is there an exception to the invoking of the right to counsel?
If there is a break of more than TWO WEEKS between the first and second attempts at interrogation, the second statements can be used as long as the defendant waives her Miranda rights the second time around.
T/F - Police have to tell the defendant that a lawyer is trying to reach her if the defendant does not ask for the lawyer.
False.
They do not have to tell the defendant.
What is the Public Safety Exception?
When public safety is at risk, the police do not have to give Miranda warnings before questioning.
How are involuntary statements treated? What about statements made by deceit?
Statements obtained by threats, even after warnings, are INADMISSIBLE.
HOWEVER, CONFESSIONS CAN BE THE PRODUCE OF DECEIT AND STILL BE VOLUNTARY AND ADMISSIBLE.
What are the consequences of Fifth Amendment Violations?
TWO CATEGORIES:
1) Statements obtained INVOLUNTARILY - An involuntarily obtained statement is NEVER ADMISSIBLE against a defendant. Whether to overturn a conviction depends on the HARMLESS ERROR STANDARD. Evidence obtained as the result of an involuntary statement (e.g., “Tell us where the body is buried” while a suspect is at gunpoint) is fruit of the poisonous tree and is PRESUMPTIVELY INADMISSIBLE.
2) Statements obtained in VIOLATION OF MIRANDA - A statement obtained in violation of Miranda is INADMISSIBLE in the prosecution’s case-in-chief, but CAN be admitted for IMPEACHMENT purposes to challenge the credibility of the defendant. Evidence obtained as a result of a VOLUNTARY statement taken in violation of Miranda is ADMISSIBLE.
What does the Sixth Amendment Right to Counsel say?
In addition to the Fifth Amendment right to counsel for custodial interrogations (covered in the Miranda discussion), the Sixth Amendment explicitly provides a criminal defendant with “the assistance of counsel for his defense.”
How is the Sixth Amendment Right to Counsel invoked compared to the Fifth Amendment?
INVOKED AUTOMATICALLY as it attaches once there has been an INDICTMENT, information, or other formal charges and exists UNLESS a defendant knowingly and intelligently waives the right.
By contract, the Fifth Amendment right must be affirmatively invokes by the defendant.
To what charges does the Sixth Amendment right apply?
It is OFFENSE SPECIFIC.
Only applies with regard to the offenses for which the defendant has ACTUALLY BEEN CHARGED (including any lesser included offenses.
CAN BE QUESTIONED, either expressly or through undercover government means, with respect to UNRELATED CHARGES.
APPLIES WHETHER YOU ARE IN CUSTODY OR NOT. By contrast, the Fifth Amendment Miranda right applies only to custodial interrogation for any charge, but not to non-custodial interrogation.
When does the Sixth Amendment Right to Counsel apply?
Applies to ALL felony prosecutions and to any misdemeanor prosecutions in which jail time or suspended jail sentence is imposed. It applies to ALL CRITICAL STAGES OF THE PROSECUTION:
1) Hearings;
2) Post-indictment lineups;
3) Post-indictment interrogations;
4) All parts of the trial process, including guilty pleas, sentencing, and appeals as of right.
Examples of Non-Critical stages are:
1) Investigative lineups (pre-indictment);
2) Witnesses looking at photo arrays;
3) Discretionary appeals and post-conviction (habeas) proceedings.
What are the different types of identification procedures?
There are two kinds of identification procedures:
1) Photo Arrays; AND
2) Lineups
What are photo arrays? What rights does the defendant have?
Neither the defendant nor his lawyer has the right to be present, but police MUST turn over the array to the defendant.
What are the two types of lineups? What are the rights of the defendant in each?
Pre-indictment lineups - Defendant has no right to counsel.
Post-Indictment lineups - Defendant has a right to have counsel present. If that right is violated, the evidence that the witness identified the defendant at the lineup must be excluded.
What is the admissibility of a lineup or in-court identifications?
LINEUP EVIDENCE AT TRIAL - If the defendant moves to suppress evidence that a witness picked the defendant out of a lineup, the court will consider whether the lineup was IMPERMISSIBLY SUGGESTIVE.
If it was, the court can exclude the testimony.
IN-COURT IDENTIFICATIONS - If the prosecution can establish by CLEAR AND CONVINCING EVIDENCE that the witness would have identified the defendant even without the suggestive lineup, the court will permit the in-court identification even if it suppresses the result of the lineup.
What is the Exclusionary Rule? When does it apply?
Illegally obtained evidence, either physical evidence obtained by an illegal search or a statement obtained through an illegal interrogation, is INADMISSIBLE at the criminal trial of the person whose rights were violated.
The Exclusionary Rule applies AT TRIAL and NOT TO PRETRIAL proceedings (e.g., grand jury proceedings).
When is there standing to claim the Exclusionary Rule?
The violation must have been of the defendant’s rights, and NOT someone else’s rights.
One Slight Qualification: If the driver of a car is arrested without probable cause, passengers are deemed to have been seized as well, so they CAN challenge the constitutionality of the stop.
Define the Exclusionary Rule.
Evidence obtained in violation of the 4th, 5th, or 6th Amendment rights CANNOT be introduced at trial to prove a defendant’s guilt.
What is “Fruit of the Poisonous Tree?”
The exclusionary rule applies not only to the evidence obtained in violation of the Constitution, but ALSO to evidence obtained as a result of the initial violation (apply a “but for” test here).
