Criminal Procedure (Constitutional) Flashcards
Fourth Amendment
prohibition against unreasonable searches and seizures, and the exclusionary rule
Fifth Amendment
privilege against Compulsory self-incrimination
Prohibition against double jeopardy
Sixth Amendment
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
Eighth Amendment
Prohibition against cruel and unusual punishment
Prohibition against excessive fines
Seizure
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
Arrests
police take a person into custody against their will for purposes of criminal prosecution or interrogation
Arrests Requirments
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
Arrest Warrant Requirment
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
Investigatory Detentions (Stop and Frisk)
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
Duration and Scope of Investigatory Stops
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
Property Seizures
brief seizures valid if based on reasonable suspicion
Automobile Stops
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
Police Officer’s Mistake of Law
does not invalidate seizure as long as mistake was reasonable
Seizure of all Occupants in Automobile
driver and passengers OKAY
May order occupants out in the interest of the officer’s safety
May frisk if reasonably believe to be armed
Pretextual Stops
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
Detention to Obtain a Warrant
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
Occupants on Premises
valid warrant search for contraband allows the police to detain occupants of the premises during proper search
Station House Detentions
must have FULL PROBABLE CAUSE for arrest to bring a suspect to the station for questioning or fingerprinting against the person’s will
Grand Jury Appearance
NOT within fourth amendment protection
Deadly Force
police officer MAY NOT use deadly force to apprehend suspect unless it is reasonable to do so under the circumstances
Evidentiary Search and Seizure
Reasonableness requires a warrant EXCEPT in six circumstances
Evidentiary Search and Seizure analysis
- 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?
- 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)?
- If NO warrant, was search or seizure within one of the SIX EXCEPTIONS to the warrant requirment?
Governmental Conduct Required
Fourth amendment generally protects only against governmental conduct not private conduct
Physical intrusion into Constitutionally Protected Area or Reasonable Expectation of Privacy
two ways:
- search or seizure by a government agent of a constitutionally protected area in which individual had a reasonable expectation of privacy; OR
- Physical intrusion by the gov into a constitutionally protected area to obtain information
Searches Conducted Pursuant to a Warrant
Generally must have warrant (SIX EXCEPTIONS)
Showing of Probable Cause (Warrant)
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
Use of informers for Probable Cause (Warrant)
must meet “totality of the circumstances” test
may be sufficient even though credibility is not established
Going “behind the face” of the Affidavit (Warrant)
Invalid if D establishes:
- a false statement was included in affidavit by officer
- officer intentionally or recklessly included the statement; AND
- fales statement was material to the finding of probable cause
Police Reasonably Rely on Validity of Warrant
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
Warrant Must Be Precise on its Face
must describe with reasonable precision PLACE SEARCHED AND ITEMS TO BE SEIZED if not it is unconstitutional
Search of third-party premises
warrant to search premises of nonsuspect okay with probable cause to believe evidence will be found
Magistrate Requirement
Must be NEUTRAL and DETACHED
Execution of Warrant
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
Search of persons found on premises
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
EXCEPTIONS TO WARRANT (6)
- Search incidental to Constitutional Arrest
- “Automobile” Exception
- Plain View
- Consent
- Stop and Frisk
- Hot Pursuit, Exigent Circumstances, Evanescent Evidence, and Emergency Aid Exceptions
Search Incidental to Constitutional Arrest EXCEPTION
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
Search Incidental to Const. Arrest (Automobile)
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
Search Incidental to Const. Arrest (Technological Searches)
DUI Arrest = Blood NO Breath OKAY not intrusive
Cell Phone = Physical OKAY data NO
Search Incidental to Const. Arrest (Incarceration or Impoundment)
may make inventory search or the arrestee’s belongings pursuant to department procedure
similarly contents of impounded automobiles
DNA swab OKAY
Automobile EXCEPTION
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
Plain View EXCEPTION
warrantless seizures when:
- Legitimately on premises
- Discover evidence of crime or contraband
- See evidence in plain view
- Probable cause to believe that the item is evidence or contraband
Consent EXCEPTION
valid if voluntary consent
extends to all areas reasonable person would believe it extends
Authority to Consent
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
Stop and Frisk EXCEPTION
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
Hot Pursuit, Exigent Circumstances, Evanescent Evidence, and Emergency Aid Exceptions
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
Administrative Inspections and Searches
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
Public School Searches
- Offers MODERATE chance of finding evidence
- Measures adopted are REASONABLY RELATED to the objectives of the search
- NOT EXCESSIVELY intrusive in light of the age and sex
Method Obtaining Evidence that “Shocks the Conscience”
determined by balancing society’s need against the magnitude of intrusion
Searches within a body (blood test v. surgery)
Fourteenth Amendment - Voluntariness
self-incrimination statement must be voluntary as determined by the totality of the circumstances to be admissible
Harmless Error Test
involuntary confession admitted conviction need not be overturned if there is other overwhelming evidence of guilt
Sixth Amendment - Right to Counsel
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
Fifth Amendment - Privilege Against Self-Incrimination
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
When Miranda is Required
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
Miranda Custody Test
“freedom of movement” test
determine whether a reasonable person under the circumstances would feel that he was free to terminate the interrogation and leave
Miranda Interrogation Requirment
any words or conduct by the police that they should know would likely elicit a response from the detainee
Right to Waive Rights or Terminate Interrogation
Detainee options:
- do nothing
- Waive Rights
- Invocation of right to remain silent
- Invocation to right to counsel
Invoke right to remain silent
must be explicit, unambiguous, and unequivocal
police must scrupulously honor this request and not badge detainee
Later questioning on unrelated crime OKAY
Invocation to right to Counsel
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
Use of Confession for Impeachment - In violation of Miranda
may be used to impeach defendant’s trial testimony, MAY NOT be used as an evidence of guilt
Miranda Warnings AFTER Questioning and Confession
if intentional…inadmissible
if unplanned and inadvertent may be admissible
Nontestimonial Fruits of an Unwarned Confession
evidence will be suppressed if failure was purposeful, but not most likely admissible
Public Safety Exception - Miranda Warnings
Allowed if prompted by a public safety concern
Pretrial Identification
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
Invalid Identification
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)
Exclusionary Rule
prohibits evidence obtained in violation of defendants fourth, fifth, and sixth amendment rights
Fruits of the Poisonous Tree
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
Fruit of the Poisonous Tree EXCEPTIONS
- fruits derived from statements obtained in violation of Miranda
- evidence obtained from a source independent of the original illegality
- Evidence for which the connection between unconst conduct is remote or has been interrupted
- Inevitable Discovery
- Violations of the Knock and Announce Rule
Limits on Exclusionary Rule
Good Faith Reliance on Law, Defective Search Warrant, or Clerical Error
Use of Excluded evidence for Impeachment Purposes
Harmless Error Test (Exclusionary Rule)
if illegal evidence admitted conviction should be overturned UNLESS gov can show beyond reasonable doubt the error was harmless
Preliminary Hearing on Probable Cause to Detain
must be held within a reasonable time (48hrs)
If arrest was already made on warrant or grand jury indictment this is not needed
Grand Jury Proceedings
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
Sixth Amendment - Speedy Trial
made by an evaluation of the totality of the circumstances
Prosecution Duty to Disclose
Disclose Exculpatory Evidence
- Evidence is favorable to D
- prejudice has resulted
Defendant Duty to Disclose
Alibi and intent to Present Insanity Defense
Competency to stand Trial vs. Insanity
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
Sixth Amendment - Right to Trial by Jury
“Serious” Offenses
imprisonment for more than six months is AUTHORIZED
Contempt trials NO RIGHT
Number of Jurors
No right to 12 must have at least 6
MUST BE UNANIMOUS
Right to Counsel Violation at Trial
requires reversal
Sixth Amendment - Right to Confront Witness
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
Prior Testimonial Statement of Unavailable Witness
NOT ADMITTED unless
- declarant is unavailable AND
- defendant had an opportunity to cross-examine the declarant at the time the statement was made
What is Testimony?
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
