Criminal Procedure Flashcards
Four key questions in search and seizure and 4th amendment?
- was the search or seizure executed by a government agent?
- was the search or seizure of an area or item protected by the Fourth Amendment?
- did a government agent either a) physically intrude on a protected area or item? or b) violate an individuals reasonable expectation of privacy in a protected area or item?
- did the individual subjected to the search or seizure have standing to challenge the government agent’s conduct?
who is a government agent?
publicly paid police officer
private citizen acting at the direction of the police
private security guard deputized with the power to arrest
public school administrator
fourth amendment protects individuals from unreasonable search and seizure of:
persons, houses, papers, effects
houses include
hotel rooms, curtilage: the area adjacent to the home to which the activity of home life extends
items that are not protected
paint scrapings, account records, airspace, garbage, voice, odors (especially from car or luggage) handwriting, open fields
all have knowing exposure to thrid parties in common
two wys searches and seizures by gov agents can implicate 4th amendment rights
- the agent physically intruded on a constitutionally protected area in order to obtain information or
- the agent search or seizure of a constitutionally protected area violated an individuals reasonable expectation of privacy
reasonable expectation of privacy
individual must show: 1. an actual or subjective expectation of privacy in the area searched or the item seized AND 2. that expectiation was one that society recognizes as reasonable
presumptively unreasonable search
device that is not in public use is used to explore details of the home that officers could not have known without physical intrusion
to have standing to challenge the lawfulness of a search or seizure
an individuals personal privacy rights must be invaded, not those of a third party
owner, resident and overnight guests always have standing. business purposes only, do not have standing
if you own the property seized, only have expectation of privacy in the area from which the property was seized
passengers in a car? not as to searches of the car, no expectation of privacy in a vehicle in which they are merely passengers
four key questions as to if the search pursuant to a search warrant satisfies the fourth amendment?
- was the warrant issued by a neutral and detached magistrate?
- is the warrant supported by probable cause and particularity?
- if not, did the police officers rely on a defective warrant in good faith?
- was the warrant properly executed by the police?
probable cause for a warrant
requires proof of a fair probability that contraband of evidence of crime will be found in the area searched
hearsay is admissible
can use informants tips even if anonymous. the sufficiency of the tip rests on corroboration by the police of enough of the tipsters information for the magistrate to make a common sense practical determnation of the totality of the circumstances
particularity in a warrant
must specify the
- place to be searched and
- the items to be seized
good faith in a defective search warrant
good faith can overcome deficits in probable cause and particularity except:
- the affidavit supporting the warrant application so egregiously lacking in probable cause that no reasonable officer would have relied on it
- the warrant is so facially deificient in particularity that officers could not reasonably presume it to be valid
- the affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding
- the magistrate who issued the warrant is biased in favor of the prosecution
was the search warrant properly executed? two aspects
- whether the officers executing the warrant complied with its terms and limitations and
- whether the officers executing the warrant complied with the knock and announce rule
compliance with warrant terms and limitations
officers can only search those areas and items authorized by the language of the warrant
knock and announce rule
requires the police to knock and announce their presence and their purpose before forcibly entering the place to be searched unless the officer reasonable believes that doing so would be:
- futile
- dangerous
- would inhibit the investigation
8 exceptions to the warrant requirement
ESCAPIST
- Exigent Circumstances
- search incident to arrest
- consent
- automobile
- plain view
- inventory
- special needs
- Terry stop and frisk
exigent circumstances
- evanescent evidence: evidence that would disappate or disappear in the time it would take to get a warrant
- hot pursuit of a fleeing felon:
a) allows the police to enter a suspects home or that of a third party in search of a fleeing felon
b) any evidence of a crime discovered in plain view while searching is admissible - emergency aid exception: police may enter a residence without a warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergent aid to address or prevent injury
search incident to arrest
- the arrest (custodial arrest) must be lawful
- justifications: officer safety and the need to preserve evidence
- Timing* the search must be contemporaneous in time and place with the arrest
- geographic scope: the wingspan, which includes the body, clothing, and any containers within the arrestees immediate control without regard to the offense for which the arrest was made
automobile searched incident to arrest: interior cabin including closed containers but not the trunk
secured v. unsecured arrestees: once secured, the officer can search the vehicle only if she has reason to believe the vehicle contains evidence relating to the crime for which the arrest was made
Consent
Standard: must be voluntary and intelligent, but police do not have to tell you of your right to refuse. scope of the search is in the hands of the consentor
scope of consent: extends to all areas for which a reasonable officer would believe permission to search was granted
Apparent Authority: if a police officer obtain consent from someone who lacks actual authority to grant it, the consent is still valid is the officer reasonably believed that the consenting party had actual authority
Shared Premises: when adults share the residence, any resident can consent to the search of the common areas but if cotenants disagree regarding consent to search, the objecting party prevails
Automobile exception
Justification: vehicles are readily mobile and individuals have a lesser expectation of privacy
Standard: police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle
Where can they search? the entire vehicle and they may open any package, luggage, or other container that may reasonably contain the item for which there was probably cause to search
Traffic stops and auto searches: the officer does not ned probable cause to search at the time the car is pulled over provided he acquires it before intitiating the search
plain view
three requirements:
- lawful access to the place from which the item can be plainly seen
- lawful access to the item itself and
- the criminality of the item is immediately apparent
inventory search
2 common contexts: arrestees when booked into jail and vehicles when they are impounded
constitutional provided:
1. the regulation governing them are reasonable in scope
2. the search itself complies with those regulations and
3. the search is conducted in good faith, (motivated soley by the need to safeguard the owner’s possessions and to ensure officer safety)
special needs
beyond a general interest in law enforcement
Drug testing: can be warrantless and suspicion-less in contexts including:
1. railroad employees following an impact accident
2. customs agents responsible for drug interdiction and
3. public school children who participate in any extracurriculars
BUT suspicion-less drug tests are not permitted where their primary purpose is to gather criminal evidence for general use
Parolees: warrantless and suspicion-less searches of a parolee and his home are permissible as a condition of parole
school searched: person and effects of public school children are permissible to investigate violations of school rules provided they are reasonable and not excessively intrusive
Border searches: neither citizens not non citizens have 4h amend rights at the border
Terry stop
a brief detention or seizure for the purpose of investigating suspicious conduct
can take place anywhere
when are you seized under the 4th amendment?
based on the totality of the circumstances, a reasonable person would not feel free to leave or to decline an officers request to answer questions.
Things to consider:
is the officer brandishing their weapon?
what is the officers tone and demeanor when interacting with the person present?
has the individual been told they have the right to refuse consent
police pursuit and seizure
an individual is seized only if he submits to the authority of the officer by stopping or if the officer physically restrains him (think tackling)
Passengers in a terry stop
both the driver and the passenger are seized
the officer may order both the driver and passenger out of the car
dog sniffs are permissible provided the sniff does not prolong the stop unreasonably
Terry frisk
a pat down of the body and outer clothing for weapons that is justified by an officers belief that a suspect is armed and dangerous
what can be seized in a terry frisk?
anything the officer reasonably believes is a weapon and anything that the officer recognizes as contraband without physically manipulating the object
car frisk at a terry stop
if an officer believes that a sispect is dangerous, he may search the passenger cabin limited to those places in which a weapon may be places or hiden
protective sweeps
when making an in home arrest police may sweep the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety
Evidentiary standard in Terry stop and frisk
reasonable suspicion, which is less than probable cause
this requires specific and articulable facts that informs an officers belief that criminal activity was present for a terry stop (objective)
or that a suspect is armed and dangerous (terry frisk)
Terry frisk is justified by concern for officer safety only not a general search from criminal evidence
informants tips can contain sufficient predictive information for the standard to be satisfied
evidentiary standard in protective sweep
without probably cause or reasonable suspicion-officers can look in areas adjoining the place of the arrest from which an attack could be immediately launched
to justify a sweep of more remote areas, the arresting officers must have additional facts sufficient to allow a reasonably prudent officer to conclude that an individual who may threaten officer safety is present in the area swept
exclusionary rule
evidence, whether phyiscal or testimonial that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated
fourth amendment limits on the exclusionary rule
- unconstitutionally obtained evidence is excluded from the prosecutor’s case in chief only and may be introduced to impeach D testimony on cross
- a failure to comply with knock and announce does not require supression of evidence that is subsequently discovered
- erroneous police conduct must be deliberate, reckless, or grossly negligent to trigger the exclusionary rule
- if the officers mistake was reasonable, the exclusionary rule does not apply to evidence erroneously obtained
- fruit of the poisonous tree
fruit of the poisonous tree
Derivative evidence: both physical and testimonial obtained by exploiting prior unconstitutional conduct is the fruit of the poisonous tree, it is inadmissible in the prosecutions case in chief.
nullify the fruit of the poisonous tree
have to show a break in the causal link between the original illegality and the criminal evidence later discovered:
- independent source: there is a source for the discovery and seizure of the evidence that is distinct
- inevitable discovery: evidence woulf have necessarily been discovered through lawful means
- attenuation: the passage of time and intervening events purge the taint and restore the D free will
wiretapping
4 requirements for a valid wiretap warrant
- suspected persons must be named
- time: the wiretap must be for a strictly limited time period
- crime: there must be a probable cause that a spcific crime has been committed
- conversations: the warrant must describe with particularity the conversations that can be overheard
eavesdropping
if you speak to someone who has agreed to wiretap ot electronically monitor you, there is no 4th amendment claim becuase you assume the risk that the other party will not keep you conversation private
when does arrest occur?
whenever the police take someone into custody against her will for prosecution or interrogation
it is de facto arrest when the police compel someone to come to the police station for questioning or fingerprinting
what standard of proof required for arrest
probable cause
for what offense doe the 4th amendment permit custodial arrest
all offenses, even if only punishable by monetary fine
when do you need an arrest warrant?
do not need one in a public place: officers can make a warrantless arrest when they have probable cause to believe that the arrestee has committed a felony or if there has been a misdemeanor committed in their presence
absent an emergency, need a warrant for arrest at home
in home of a 3rd party, need an arrest and search warrant
common enterprise theory
in a traffic stop when a police officer discovers evidence of crime that suggests a common enterprise between the driver and the passengers, the officer can arrest any or all of them based on reasonable inference of the shared dominion and control over the contraband
three challenges to exclude a confession?
- 14th amendment due process
- 6th amendment right to counsel
- 5th amendment Miranda doctrine
confessions under the 14th amend.
excluded if involuntary: the confession is the product of police coercion that overbears the suspects will
confession under the right to counsel
- an express constitutional guarantee that attaches when the D is formally charges and not upon arrest
- applies at all critical stages of the prosecution that take place after formal charging including arraginment, probale cause hearing and police interrogation
- this is an offense specific right that applies only to the crimes which are formally charged, no protection for other uncharged crimes
- if statements regarding charged offenses are deliberately elicited and the defendant did not knowingly and voluntarily waive his right to have an atty present, the 6th is violated
confession and miranda
implied rights grounded in the 5th amendment right against self incrimination
1. necessary when custody and interrogation
requirements for custody in miranda?
two part test:
- would a resonable person have felt that she was not at liberty to end the interrogation and leave, and
- was the environment present, the same inherently coercive pressures as the station house questioning?
should take into account a juvenilles age ehre age is relevant and if the officer knew or should have known the age of the suspect
interrogation for miranda
any conduct the police knew or should have known was likely to elicit an incriminating responce
public safety exception to miranda
if interrogation is prompted by an immediate concern for public safety miranda warnings are not necessary and any incriminating statements are admissible
valid miranda waiver
- knowing and intelligent: if the suspect understands a)the nature of the rights and b) the consequences of abandoning them
- voluntary: cannot be the product of police coercion
executing a valid mrianda waiver
may be express or implied: have to waive both silence and the right to counsel in an uncoerced statement to the police
the burden of proof is on the prosecution to prove that there is a valid waiver by preponderance of the evidence
invoke the right to remain silent
- suspect must unambiguously invoke
- once invokes, police must scrupulously honor the invocation; they cannot badger the suspect into talking and must wait a significant period of time before reinitiation and but obtain a valid waiver
invoke the right to counsel
- request must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel
- once invoked, all interrogations must cease unless the suspect re-initiates
- this is not offense specific, all topics are prohibited outside the attorney’s presence
- request expires 14 days after the suspect is released from custody, a waiver obtained may be valid.
limitations on evidentiary exclusions as applied to miranda violations
- inadmissible to the prosecutors case in chief but can be used to impeach the D on cross but NOT the testimony of 3rd party witnesses
- failure to give miranda will not suppress the physical fruits of the statements, provided the statements are voluntary
- subsequent incriminating statements made after obtaining waiver are admissible
if testimonial evidence that should have been excluded as violative of miranda is the court required to vacate the guilty verdict?
not if the gov. can prove beyond a reasonable doubt that the error was harmless because the D would have been convicted without the tainted evidence
pretrial identifications
two challenges are possible:
1. denial of the right to counsel: 5th amendment, no right to counsel for pretrial ID
6th amendment: right to counsel for lineups and showups that take place after formal charging, but not at photo arrays
2. violation of due process
if unreasonably suggestive that it creates a substantial likelihood of misidentification
have to weight the reliability of the suggestive identification against its corrupting effect
the remedial violation is the exclusion of a witness’s in court identification but this will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconsitutional show up, etc
prosecution can point to factors such as:
witness opportunity to view the defendant at the crime scene, the specificity of the description given to the police and the certainty of the witness’s ID
Grand Juries
issue injunctions, nonpublic proceedings, states do not have to use them
pre trial detention
gov needs probable cause both to bind a D over for trial and to detain him in jail before trial
detention hearing: hearing to determine probable cause (Gerstein hearing) is un-necessary if there is a grand jury indictment or a magistrate has issued an arrest warrant
First appearance: Detainee will be brought before a magistrate who will:
advice him of his rights, set bail and appoint counsel if necessary
decisions regarding bail are immediately appealable
evidentiary disclosure
prosecutor must disclose to a criminal defendant all material exculpatory evidence (the brady rule)
Right to an unbiased judge
the judge has no financial stake in the outcome of the case and the judge has no actual malice toward the D
Juries: fundamental protections, right to trial, numbers
ALL criminal defendants have a right to a fair and impartial jury, when the maximum authorized sentence exceeds 6 months, there is a right to a jury trial. the fewest number of jurors in a criminal trial is 6
unanimity of jury verdicts
must be unanimous is only 6 jurors are used, 12 person juries do not require unanimity (many states require that they are unanimous though)
jury pool cross sectional requirement
the pool from which the jury is drawn represents a cross section of the community
preemptory challenge
permit both sides to exclude jurors without stating the reasons for doing so but they cannot be used by either side to exclude prospective jruors on account of race or gender
right to confront adverse witnesses
does not apply where the face to face confrontation would contravene important public policy concerns. ex. traumatizing a child witness
the right to effective assistance of counsel
to prove:
- deificiency requirement: counsel’s performance fell below an objective standard of reasonableness meaning he made errors so serious that he was not functioning as counsel AND
- but for the deificency the outcome of the trial would have been different
valid guilty plea
the judge must establish that it is voluntary and intelligent
plea taking colloquy
before accepting a plea, the judge must conduct a colloquy in open court in which he addresses on the record
- the nature of the charges including required elements of the charged offense AND
- the consequences of the plea
withdrawing a plea
the D may withdraw a guilty plea after sentencing only if
- the plea is involuntary, due to a defect in the plea taking colloquy
- there is jurisdictional defect
- tje D prevails on a claim of ineffective assistance of counsel or
- the prosecutor fails to fulfill his or her part of the bargain (plea regarded as a K)
8th amendment punishment standard
no cruel and unusual punishment, there cannot be criminal penalties that are grossly disproportionate to the seriousness of the offense committed
the death penalty
- cannot be an automatic category for the imposition of the death penalty
- in deciding to impose the death penalty, the jurors must be allowed to consider all potentially mitigating evidence
- categorical exclusions: cannot sentence to death anyone with
mental retardation, presently insane, or D’s who were under 18 at the time of the relevant offense
when does jeopardy attach?
when the jury is sworn in a jury trial, when the 1st witness takes the stand in a bench trial or when the court unconditionally accept the D’s plea
does not apply to civil proceedings
same offense in double jeopardy
two offenses are not the same offense for purposes of the double jeopardy clause if each contains an element that the other does not
greater and lesser included offenses and double jeopardy
if only one offense has an element that the other does not, cannot be tried for both, prosecution for one precludes later prosecution for the other
same sovereign-doule jeopardy
state and fed gov-no
different states_no
state and municipalities within them?- yes
four exceptions to the double jeopardy rule to permit retrial:
- a hung jury
- a mistrial for manifest necessity
- a successful appeal unless the reversal on appeal was based on the insuffciency of the evidence presented by the prosecution at trial
- breach of the plea bargain agreement by the defendant
taking the fifth?
- anyone can take it
- can be asserted in any proceeding in which an individual testifies under oath (sworn testimony)
- failure to assert in civil can undermine the ability to assert it in a later criminal trial
- does not apply to the states use of our bodies (dna extraction)
- disallows negative prosecutorial comment on D’s decision not to testify at his trial or invocation of the right to silence or counsel
3 ways to eliminate the 5th amend priviledge
grant of immunity: prosecutor can grant use and derivative use immunity which bard the government from using your testimony or anything derived from it to convict you BUT can still be convicted based on evidence obtained prior to grant of immunity
taking the stand: D waives the ability to take the 5th as to anything properly within the scope of cross examination
statute of limitations: the privilege is unavailable if the statute of limitations has run on the underlying crime since a witnesses testimony could not expose him to criminal prosecution
