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LA BAR > Criminal Procedure (Constitutional) > Flashcards

Criminal Procedure (Constitutional) Flashcards

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1
Q

Fourth Amendment

A

prohibition against unreasonable searches and seizures, and the exclusionary rule

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2
Q

Fifth Amendment

A

privilege against Compulsory self-incrimination

Prohibition against double jeopardy

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3
Q

Sixth Amendment

A

right to speedy trial
right to public trial
right to trial by jury
right to confront witnesses
right to compulsory process
Right to assistance of counsel

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4
Q

Eighth Amendment

A

Prohibition against cruel and unusual punishment

Prohibition against excessive fines

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5
Q

Seizure

A

under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer’s requests or otherwise terminate encounter

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6
Q

Arrests

A

police take a person into custody against their will for purposes of criminal prosecution or interrogation

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7
Q

Arrests Requirments

A

must be based on PROBABLE CAUSE

trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law. Based on TOTALITY OF THE CIRCUMSTANCES

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8
Q

Arrest Warrant Requirment

A

Generally not required when arresting in a public place

Generally MUST have warrant to effect a NONEMERGENCY arrest of a person in his home; may enter home ONLY if there is reason to believe suspect is within it

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9
Q

Investigatory Detentions (Stop and Frisk)

A

police have a REASONABLE SUSPICION of criminal activity or involvement in a completed crime, supported by ARTICULABLE FACTS, may detain for investigative purposes

ALSO if REASONABLE SUSPICION that the detainee is armed and dangerous they may frisk detainee for weapons

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10
Q

Duration and Scope of Investigatory Stops

A

no specific time limit

diligent and reasonable manner in confirming or dispelling their suspicions

may as person to id themselves and may arrest for failure to comply or during detention other probably cause for arrest arises

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11
Q

Property Seizures

A

brief seizures valid if based on reasonable suspicion

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12
Q

Automobile Stops

A

Generally may not unless REASONABLE SUSPICION to believe law has been violated

Exception special law enforcement needs:
1. Stop cars on neutral basis standard
2. be designed to serve purpose closely related to a particular problem pertaining to automobiles and their mobility

DWI Check

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13
Q

Police Officer’s Mistake of Law

A

does not invalidate seizure as long as mistake was reasonable

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14
Q

Seizure of all Occupants in Automobile

A

driver and passengers OKAY

May order occupants out in the interest of the officer’s safety

May frisk if reasonably believe to be armed

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15
Q

Pretextual Stops

A

probably cause to believe car violated traffic law may stop car EVEN if ulterior motive is to investigate a crime for which they lack sufficient cause

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16
Q

Detention to Obtain a Warrant

A

probably cause to believe suspect has hidden drugs in home, may for a reasonable time, prevent him from going into home unaccompanied to prevent destruction of drugs prior to obtaining warrant

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17
Q

Occupants on Premises

A

valid warrant search for contraband allows the police to detain occupants of the premises during proper search

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18
Q

Station House Detentions

A

must have FULL PROBABLE CAUSE for arrest to bring a suspect to the station for questioning or fingerprinting against the person’s will

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19
Q

Grand Jury Appearance

A

NOT within fourth amendment protection

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20
Q

Deadly Force

A

police officer MAY NOT use deadly force to apprehend suspect unless it is reasonable to do so under the circumstances

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21
Q

Evidentiary Search and Seizure

A

Reasonableness requires a warrant EXCEPT in six circumstances

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22
Q

Evidentiary Search and Seizure analysis

A
  1. does defendant have fourth amendment right (seizure by the gov concerning a place or thing of reasonable expectation of privacy); OR involve a physical intrusion into a constitutionally protected area?
  2. Did police officers have a VALID warrant (neutral and detached magistrate on a showing of PROBABLE CAUSE and REASONABLY PRECISE as to the place to be searched and items to be seized)?
  3. If NO warrant, was search or seizure within one of the SIX EXCEPTIONS to the warrant requirment?
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23
Q

Governmental Conduct Required

A

Fourth amendment generally protects only against governmental conduct not private conduct

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24
Q

Physical intrusion into Constitutionally Protected Area or Reasonable Expectation of Privacy

A

two ways:

  1. search or seizure by a government agent of a constitutionally protected area in which individual had a reasonable expectation of privacy; OR
  2. Physical intrusion by the gov into a constitutionally protected area to obtain information
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25
Q

Searches Conducted Pursuant to a Warrant

A

Generally must have warrant (SIX EXCEPTIONS)

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26
Q

Showing of Probable Cause (Warrant)

A

believe that seizable evidence will be found on the person or premises at the time the warrant is executed

Magistrate makes determination independent the officer based on affidavit

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27
Q

Use of informers for Probable Cause (Warrant)

A

must meet “totality of the circumstances” test

may be sufficient even though credibility is not established

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28
Q

Going “behind the face” of the Affidavit (Warrant)

A

Invalid if D establishes:

  1. a false statement was included in affidavit by officer
  2. officer intentionally or recklessly included the statement; AND
  3. fales statement was material to the finding of probable cause
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29
Q

Police Reasonably Rely on Validity of Warrant

A

Evidence obtained by police who reasonably relied on valid warrant may be used despite ultimately no probably cause

DOES NOT APPLY if police failed to obtain a warrant

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30
Q

Warrant Must Be Precise on its Face

A

must describe with reasonable precision PLACE SEARCHED AND ITEMS TO BE SEIZED if not it is unconstitutional

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31
Q

Search of third-party premises

A

warrant to search premises of nonsuspect okay with probable cause to believe evidence will be found

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32
Q

Magistrate Requirement

A

Must be NEUTRAL and DETACHED

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33
Q

Execution of Warrant

A

ONLY police officers may execute a warrant

MUST knock, announce their purpose, and wait a reasonable time for admittance UNLESS reasonable suspicion based on facts that announcing would be dangerous or futile or would inhibit investigation

34
Q

Search of persons found on premises

A

Search warrant authorizes police to detain occupants of the premises but does NOT authorize search of persons found on premises NOT named in warrant

May frisk if believed to be armed and dangerous

35
Q

EXCEPTIONS TO WARRANT (6)

A
  1. Search incidental to Constitutional Arrest
  2. “Automobile” Exception
  3. Plain View
  4. Consent
  5. Stop and Frisk
  6. Hot Pursuit, Exigent Circumstances, Evanescent Evidence, and Emergency Aid Exceptions
36
Q

Search Incidental to Constitutional Arrest EXCEPTION

A

Constitutional Arrest (based on probable cause)

May search person and area into which he might reach to obtain weapons or destroy evidence

Must be contemporaneous in time and place with the arrest

37
Q

Search Incidental to Const. Arrest (Automobile)

A

Automobile search may be interior AFTER securing and a recent occupant if they have reason to believe that the vehicle contains evidence of the crime FOR WHICH THE OCCUPANT WAS ARRESTED

38
Q

Search Incidental to Const. Arrest (Technological Searches)

A

DUI Arrest = Blood NO Breath OKAY not intrusive

Cell Phone = Physical OKAY data NO

39
Q

Search Incidental to Const. Arrest (Incarceration or Impoundment)

A

may make inventory search or the arrestee’s belongings pursuant to department procedure

similarly contents of impounded automobiles

DNA swab OKAY

40
Q

Automobile EXCEPTION

A

probable cause to believe vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the WHOLE vehicle and ANY CONTAINER that might REASONABLY contain the item for which they had probable cause to search

If parked within curtilage (driveway) must have warrant

41
Q

Plain View EXCEPTION

A

warrantless seizures when:

  1. Legitimately on premises
  2. Discover evidence of crime or contraband
  3. See evidence in plain view
  4. Probable cause to believe that the item is evidence or contraband
42
Q

Consent EXCEPTION

A

valid if voluntary consent

extends to all areas reasonable person would believe it extends

43
Q

Authority to Consent

A

any person with an apparent equal right to use or occupy the property may consent to a search

Occupant CANNOT give valid consent to search when a co-occupant is present and objects to the search and is directed against co-occupant

May act on consent if co-occupant is removed later for unrelated reason

44
Q

Stop and Frisk EXCEPTION

A

Limited to a pat down of outer clothing UNLESS specific information that a weapon is hidden in a particular area of suspect’s clothing

may also order occupants out and frisk if reasonably believes dangerous

45
Q

Hot Pursuit, Exigent Circumstances, Evanescent Evidence, and Emergency Aid Exceptions

A

pursuit of subject into private dwelling

entrance into home believing evidence will be destroyed

seize evidence likely to disappear before warrant obtained

to address emergencies could affect health or safety

46
Q

Administrative Inspections and Searches

A

Probably cause required to obtain is more lenient

Examples:
-Seize spoil or contaminated food
-Business within highly regulated industry
-Search of arrestees or their vehicles
-Airline Passengers
-Prisoners
-Parolees and Homes
-Gov employees desks and cabinets
-Drug Tests of RR workers involved in accident
-Drug test persons seeking customs employment in positions connected to drug interdiction
-Drug test public school students who participate in extracurricular activities

47
Q

Public School Searches

A
  1. Offers MODERATE chance of finding evidence
  2. Measures adopted are REASONABLY RELATED to the objectives of the search
  3. NOT EXCESSIVELY intrusive in light of the age and sex
48
Q

Method Obtaining Evidence that “Shocks the Conscience”

A

determined by balancing society’s need against the magnitude of intrusion

Searches within a body (blood test v. surgery)

49
Q

Fourteenth Amendment - Voluntariness

A

self-incrimination statement must be voluntary as determined by the totality of the circumstances to be admissible

50
Q

Harmless Error Test

A

involuntary confession admitted conviction need not be overturned if there is other overwhelming evidence of guilt

51
Q

Sixth Amendment - Right to Counsel

A

guarantees right to counsel in all criminal proceedings (AFTER formal charges have been filed)

Prohibits police from eliciting an incriminating statement from D outside presence of counsel unless waived the right

52
Q

Fifth Amendment - Privilege Against Self-Incrimination

A

Miranda Warnings***

for admission or confession to be admissible under the fifth amendment a person in custody MUST, prior to interrogation, be informed Miranda Rights

53
Q

When Miranda is Required

A

anyone in CUSTODY of the gov and ACCUSED of a crime MUST be given Miranda warnings PRIOR to interrogation by police

Applicable only if detainee knows he is being interrogated by government agent

54
Q

Miranda Custody Test

A

“freedom of movement” test

determine whether a reasonable person under the circumstances would feel that he was free to terminate the interrogation and leave

55
Q

Miranda Interrogation Requirment

A

any words or conduct by the police that they should know would likely elicit a response from the detainee

56
Q

Right to Waive Rights or Terminate Interrogation

A

Detainee options:

  1. do nothing
  2. Waive Rights
  3. Invocation of right to remain silent
  4. Invocation to right to counsel
57
Q

Invoke right to remain silent

A

must be explicit, unambiguous, and unequivocal

police must scrupulously honor this request and not badge detainee

Later questioning on unrelated crime OKAY

58
Q

Invocation to right to Counsel

A

detainee unambiguously and specifically indicates wishes to speak to counsel ALL QUESTIONING MUST CEASE until counsel has been provided
UNLESS:
1. detainee then waives his right to counsel
2. is released from custodial interrogation back to his normal life and 14 days have passed since release

59
Q

Use of Confession for Impeachment - In violation of Miranda

A

may be used to impeach defendant’s trial testimony, MAY NOT be used as an evidence of guilt

60
Q

Miranda Warnings AFTER Questioning and Confession

A

if intentional…inadmissible

if unplanned and inadvertent may be admissible

61
Q

Nontestimonial Fruits of an Unwarned Confession

A

evidence will be suppressed if failure was purposeful, but not most likely admissible

62
Q

Public Safety Exception - Miranda Warnings

A

Allowed if prompted by a public safety concern

63
Q

Pretrial Identification

A

Sixth amendment right to counsel at any POST-CHARGE lineup or show up

NO Right to counsel at photo identifications OR when police take physical evidence such as handwriting or fingerprints

64
Q

Invalid Identification

A

D can attack denial of due process if identification is UNNECESSARILY SUGGESTIVE and there is a SUBSTANTIAL LIKELIHOOD of misidentification

REMEDY: exclusion of in-court identification unless independent source (viewed defendant close up for 40 minutes during commission of crime)

65
Q

Exclusionary Rule

A

prohibits evidence obtained in violation of defendants fourth, fifth, and sixth amendment rights

66
Q

Fruits of the Poisonous Tree

A

Unconstitutionally obtained evidence and all evidence obtained from exploitation of the unconstitutionally obtained evidence must also be excluded

UNLESS cost of excluding outweighs the deterrent effect of exclusion would have on public misconduct

67
Q

Fruit of the Poisonous Tree EXCEPTIONS

A
  1. fruits derived from statements obtained in violation of Miranda
  2. evidence obtained from a source independent of the original illegality
  3. Evidence for which the connection between unconst conduct is remote or has been interrupted
  4. Inevitable Discovery
  5. Violations of the Knock and Announce Rule
68
Q

Limits on Exclusionary Rule

A

Good Faith Reliance on Law, Defective Search Warrant, or Clerical Error

Use of Excluded evidence for Impeachment Purposes

69
Q

Harmless Error Test (Exclusionary Rule)

A

if illegal evidence admitted conviction should be overturned UNLESS gov can show beyond reasonable doubt the error was harmless

70
Q

Preliminary Hearing on Probable Cause to Detain

A

must be held within a reasonable time (48hrs)

If arrest was already made on warrant or grand jury indictment this is not needed

71
Q

Grand Jury Proceedings

A

secret

D no right to notice

Witness subpoenaed has no right to counsel or Miranda or entitled that potential defendant

No right to exclusion of evidence

72
Q

Sixth Amendment - Speedy Trial

A

made by an evaluation of the totality of the circumstances

73
Q

Prosecution Duty to Disclose

A

Disclose Exculpatory Evidence

  1. Evidence is favorable to D
  2. prejudice has resulted
74
Q

Defendant Duty to Disclose

A

Alibi and intent to Present Insanity Defense

75
Q

Competency to stand Trial vs. Insanity

A

Insanity is a defense to the charge

Competency is mental condition at time of trial
1. Lacks rational and functional understanding of charges and proceedings
2. lacks sufficient present ability to consult with attorney with a reasonable degree of understanding

76
Q

Sixth Amendment - Right to Trial by Jury

A

“Serious” Offenses

imprisonment for more than six months is AUTHORIZED

Contempt trials NO RIGHT

77
Q

Number of Jurors

A

No right to 12 must have at least 6

MUST BE UNANIMOUS

78
Q

Right to Counsel Violation at Trial

A

requires reversal

79
Q

Sixth Amendment - Right to Confront Witness

A

When D’s tried together and one confession implicates the other it is prohibited to be used
UNLESS:
1. all portions referring to the other defendant can be eliminated
2. the confessing defendant takes the stand and subjects himself to cross-examination
3. nontestifying co-defendant is being used to rebut D’s claim that his confession was obtained coercively

80
Q

Prior Testimonial Statement of Unavailable Witness

A

NOT ADMITTED unless

  1. declarant is unavailable AND
  2. defendant had an opportunity to cross-examine the declarant at the time the statement was made
81
Q

What is Testimony?

A

statements from prelim hearing, grand jury hearing, former trial, police interrogation, Tester of forensic evidence

NOT TESTIMONY: interrogations intended to aid the police in responding to an ongoing emergency (911 operators questions)

Forfeit right if wrongdoing by D to keep witness from testifying

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