CRIMINAL PROCEDURE Flashcards
Fourth Amendment–Standing/Gov Action Requirement
- Under the 4th Amendment of the U.S. Constitution, a person is granted protection from unlawful government searches and seizures. Acts by private individuals are NOT protected by the 4th Amendment.
- In order to challenge a search or seizure, the challenging party MUST have standing. To have standing, the challenger must have a reasonable expectation of privacy regarding the item or place searched. Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess. The U.S. Supreme Court has extended this doctrine to permit an overnight guest to challenge a warrantless search in a home in which he was staying.
4th Amendment–Police Request for Information
- Under the 4th Amendment of the U.S. Constitution, a person is granted protection from unlawful government searches and seizures. A seizure occurs when a reasonable person would have believed that he was not free to leave.
- The police may make a request for information anytime except on “whim or caprice.”
4th Amendment–Police Stop and Inquire
• Under the 4th Amendment of the U.S. Constitution, a person is granted protection from unlawful government searches and seizures. A seizure occurs when a reasonable person would have believed that he was not free to leave.
A police officer may stop and inquire if the police officer (1) has reasonable articulable suspicion, (2) that criminal activity is afoot. A stop and inquire allows only a brief detention for questioning, after which the suspect must be released.
4th Amendment–Police Stop and Frisk (In General)
- Under the 4th Amendment of the U.S. Constitution, a person is granted protection from unlawful government searches and seizures. A seizure occurs when a reasonable person would have believed that he was not free to leave.
- A police officer may only stop and frisk a person if the police officer (1) has reasonable articulable suspicion, (2) that criminal activity is afoot, AND (3) that the person has a weapon.
4th Amendment–Police Stop and Frisk–Plain Feel Doctrine
Under the plain feel doctrine, a police officer may only seize items he or she reasonably believes is contraband or a weapon during the frisk. The nature of the item must be IMMEDIATELY apparent–no manipulation.
4th Amendment–Definition of “Reasonable Suspicion”
Reasonable suspicion is defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand. Courts use a sliding scale based on the particular factual circumstances to determine whether reasonable suspicion was present.
4th Amendment–Warrant Requirement for Searches
- The 4th Amendment of the U.S. Constitution provides that everyone should be free from unreasonable searches and seizures. Thus, a police officer will need a warrant to conduct a search and to seize items, unless a valid exception applies.
- In order for a search warrant to be valid: (1) there must have been probable cause (reliable information that it is likely that evidence of illegality will be found at a particular location); (2) the warrant must state with particularity the place to be searched and the items to be seized; AND (3) it must be issued by a neutral and detached magistrate.
Evidence obtained without a valid warrant should be excluded unless it falls under the exceptions that permit a warrantless search and seizure.
Exception to Warrant Requirement: Plain View Doctrine
Under the Plain View Doctrine, the police may seize evidence without a warrant if (1) it is observed in plain view (with any of the five senses), (2) from a place the officer is lawfully permitted to be, AND (3) probable cause exists to believe that the items are evidence of a crime or contraband.
Miranda Warnings–Generally
• Under the 5th Amendment Privilege Against Self- Incrimination, a person has a right to not incriminate oneself and MUST be given Miranda warnings during a custodial interrogation.
Miranda rights attach when there is a custodial interrogation of a suspect. If a person is not subject to a custodial interrogation, no Miranda warnings need to be given.
o A person is in CUSTODY when they reasonably believe they are not free to leave.
o A person is subject to INTERROGATION when the police knew or should have known that their conduct was likely to elicit an incriminating response.
A defendant/suspect’s statements made in violation of his Miranda rights are subject to the Exclusionary Rule.
Miranda Warnings–Public Safety Exception
Under the Public Safety Exception, limited interrogation without Miranda warnings IS ALLOWED when police officers ask questions reasonably prompted by a concern for public safety OR the safety of the officer (i.e. to secure a weapon).
Miranda Warnings–List of the Actual Miranda Warnings
Miranda warnings inform suspects that:
(1) they have the right to remain silent;
(2) anything they say can be used against them in court;
(3) they have the right to talk to an attorney and have one present when they are questioned; AND
(4) if they cannot afford an attorney, an attorney will be provided to them.
Miranda Warnings–Types of Evidence Protected by Miranda Warnings
Miranda rights only protect statements or acts that are communicative or testimonial in nature. In order to be testimonial, an accused’s communication must (explicitly or implicitly) relate to a factual assertion or disclose information. Additionally, Miranda rights DO NOT apply to any spontaneous statements made by a person.
(Note: Crying is NOT considered a testimonial communication)
Miranda Warnings–Invoking Miranda Rights
When invoking a Miranda right, it MUST be clear and unambiguous. The suspect must affirmatively invoke the right (mere silence is inadequate).
Miranda Warnings–Effect of Invoking Right to Remain Silent
Once the right to remain silent is invoked, the police may later question the suspect if they first scrupulously honor his right to remain silent. Additionally, if the right is invoked, the defendant’s silence CANNOT be commented on by the prosecution or be used to incriminate him at trial.
Miranda Warnings–Effect of Invoking Right to Counsel
Once the right to counsel is invoked, the police must stop questioning the suspect on ANY crime until the suspect has spoken with an attorney.
However, a custodial interrogation may be reinitiated if:
(1) the suspect has been re-advised of his Miranda rights;
(2) has provided a knowing and voluntary waiver; AND
(3) either (a) counsel is present, (b) the suspect initiates the communication, or (c) at least 14 days have passed since the suspect was released from custody.
A suspect’s statement that clearly indicates a willingness to speak about matters relating to the investigation is treated as an initiation of communication, but questions or comments relating to routine incidents of being in custody do not.
6th Amendment Right to Counsel–In General
Under the 6th Amendment of the U.S. Constitution, the accused has the right to counsel in all criminal prosecutions (except State misdemeanor prosecutions that do not carry a risk of jail time). The right to counsel attaches once formal adversarial judicial proceedings have been commenced (i.e. formal charge, preliminary hearing, indictment, or arraignment).
The 6th Amendment right to counsel is offense- specific. Thus, it only applies to the offenses the defendant has formally been charged with, and DOES NOT prevent the police from questioning the defendant about unrelated offenses without an attorney. Once a suspect’s right to counsel has attached, any attempts to deliberately elicit statements from him in the absence of his attorney violate the 6th Amendment.
6th Amendment Right to Effective Assistance of Counsel
The 6th Amendment also includes the right to have effective assistance of counsel, which includes the effective aid in the preparation and trial of the case. In order to prove ineffective assistance of counsel in violation of the Sixth Amendment, the defendant must show that: (1) his counsel’s performance was deficient; AND (2) but for the counsel’s errors, the result of the trial would have been different. If ineffective assistance of counsel is shown at trial, then the verdict must be reversed and the defendant is entitled to a new trial.
Exclusionary Rule/Fruit of Poisonous Tree Doctrine–General Rule and Exceptions
- Under the Exclusionary Rule, evidence obtained in violation of a defendant’s 4th, 5th, or 6th Amendment rights is inadmissible in a criminal case. Additionally, all derivative evidence is inadmissible under the fruit of the poisonous tree doctrine.
- However, the exclusionary rule DOES NOT apply if:
(a) it is shown that the police had an independent source for the secondary evidence (where there is a source for discovery and seizure of the evidence that is distinct from the original illegal source);
(b) the discovery of evidence would have been inevitable regardless of the illegality;
(c) through the attenuation doctrine (which admits evidence where a defendant’s free will has been restored through the passage of time and/or intervening events); OR
(d) the police relied in good faith on a defective search warrant.
Exclusionary Rule/Fruit of Poisonous Tree Doctrine–Exceptions where Officers’ Good Faith Reliance DOES NOT Excuse an Invalid Warrant
There are four exceptions where a police officer’s good faith reliance DOES NOT excuse an invalid warrant:
(1) when the warrant is so lacking in particularity that no reasonable police officer could believe in good faith that the warrant is valid;
(2) when the warrant is so lacking in probable cause that no reasonable police officer could have relied on it;
(3) when the magistrate judge who issued the warrant was biased;
(4) when the police officer who obtained the warrant lied on the warrant application.
Exclusionary Rule/Fruit of Poisonous Tree Doctrine–Civil Proceedings and Grand Jury Proceedings
The exclusionary rule DOES NOT apply to grand juries or
civil proceeding.
