CRIMINAL PROCEDURE Flashcards
During routine traffic stops a sniff
is not a search so long as the police do not extend the seach beyond the time needed to issue a ticket or conduct normal inquiries
During a traffic stop, a dog alert to the presence of drugs
can form the basis for probable cause for a search
Police cannot use drug sniffing dogs
without probable cause directly outside the home of a suspected drug dealer.
5 STEPS IN SEARCH AND SEIZURE PROBLEM
- GOV’T CONDUCT?
- REASONABLE EXPECTATION OF PRIVACY (STANDING?)
- PROBABLE CAUSE & PARTICULARITY?
- GOOD FAITH DEFENSE?
- EXCEPTION TO WARRANT REQUIREMENT?
Potential exceptions to the warrant requirement
- Search incident to lawful arrest
- Stop & frisk
- Plain view
- Automobile (with p.c. police can search)
- consent (voluntary & intelligent)
- Exigent circumstances (hot pursuit, evanescent evidence, emergencies affecting health or safety).
Exigent Circumstances exception includes
- hot pursuit
- evanescent evidence
- emergencies affecting health or safety.
If the gov’t conducts a search with warrant cehck to ensure:
- probable cause
- neutral and detached magistrate
- scope of warrant was reasonably precise as to place to be searched and items to be seized.
- proper execution (without unreasonable delay & knock and announce)
- good faith exception applies only if there is a warrant that is invalid.
Investigatory detentions require
reasonably suspicion based on articulable facts
Pursuant to the SILA exception, the police can search: (answer for regular & auto):
- police can search person and areas into which person might obtain weapons or destroy evidence (wingspan)
- automobile passenger compartment may be searched if arrestee is unsecured and still may gain access or police reasonably believe evidence for the arrest may be found in vehicle.
- inventory search of arrestee’s belongings or of impounded vehicle permissible.
Stop & Frisk is permissible if:
- permissible without probable cause if officer has reasonable suspicion based on articulable facts that criminal activity is afoot.
- police can patdown outer clothing unless officer has specific information that weapon is hidden or vehicle occupant is dangerous.
Plain view exception applies if:
- police are legitimately on the premises
- discover evidence, fruits or instrumentalitites of crime ofr contraband (see, smell, hear)
- such evidence is in plain view
- have probable cause to believe the item is related to crime.
The automobile exception to the warrant requirement allows the police to:
with probable cause, search whole vehicle and any container that mighr reasonbly contain item for which they had probable cause, including passenger’s belongings.
Consent as a warrant exception requires:
- consent must be voluntary and intelligent
- authority of consent includes a person with apparent equal right to use or occupy property, unless co-occupant is present and objects.
- knowledge of right to refuse consent is not required.
Public school searches require what to be reasonable?:
- moderate chance of finding evidence of wrongdoing
- measures adopted to carry out the search are reasonably related to the objectives of the search, and
- search must not be excessively intrusive.
For border searches
there are no 4th amendment rights.
Body searches require balancing society’s ______ against ______.
need for the evidence; magnitude of the intrusion.
The privilege against self incrimination protects
compelled testimonial evidence. (not physical)
In order for Miranda to be triggered there must be
custodial interrogation.
Custody means
the person is not free to leave. (objective standard)
Interrogation
any words or conduct where the police knew or should have known that they might illicit an incriminating response.
When right to counsel is invoked, police may not resume questioning about any crime unless…
the accused initiates resumption of questioning.
A confession obtained in violation of Miranda may be used…
to impeach the accused’s testimony if she testifies at trial.
The Due Process Clause of the 14th amendment prohibits an identification process that is
unnecessarily suggestive and where there is a substantial likelihood of misidentification.
To raise a 4th amendment claim of unreasonable search/seizure, person must have a legitimate expactation of privacy with respect to teh place searched or item seized. Standing requirement so that a person can object only if it violates her own legitimate expectations of privacy. The Court has held that a person has a legitimate expecation of privacy any time:
- she owned or had a right to possession of the place searched;
- the place searched was in fact her hown home, whether or not she owned or had a right to possession of it, o r
- she was an overnight guest of the owner of the place searched.
Once stolen property is recovered by the owner or ________________, it loses its “stolen” status.
by the police on the owner’s behalf
If the accused invokes her right to counsel, _____________, until the accused is provided with an attorney or initiates further questioning herself.
all questioning must cease.
*Compare to invocation of right to remain silent. After silence invocation, police cannot badger the accused but they can, so long as they scrupulously honor the request, requestion the accused about a different crime after re-Mirandizing.
The SCT has held that, under the 8th Amendment, the death penalty may not be imposed for felony murder where the defendant, __________, did not take or attempt or intent to take life, or intend that lethal force be employed.
accomplice
The 5th amendment requires Miranda warnings and a valid waiver before any statement made by the accused during custodial interrogation can be admitted. However, this requirement does not apply where interrogation is by ________________, because the coercive atmosphere of police-dominated interrogation is not present.
an informant who the defendant does not know is working for the police.
For purposes of false pretenses or larceny by trick, there is no misrepresentation if the defendant merely ________________.
fails to correct what is known to be a mistaken impression held by the victim, as long as the defendant is not responsible for creating the mistake
Warrantless searches of pubic school children’s ____, such as _____ and ___ is permissible to investigate violations of _______.
effects
purses
backpacks
school rules
- School search must be reasonable:
1. moderate chance of finding evidence of wrongdoing
2. measures adopted to search are reasonably related to the objectives of the search
3. the search is not excessivly intrusive.
- School search must be reasonable:
