Criminal Procedure Intro Cards Flashcards
Which US Constitutional Amendments relate to the rights of the accused?
The Fourth, Fifth, Sixth, and Eight Amendments.
Which aspects of the US Constitution have been Incorporated (via the 14th Amendment Due Process Clause) as protections for the accused?
Incorporated into state criminal law are (i) the Fourth Amendment’s protection against searches and seizures; (ii) the Fifth Amendment’s privilege against self-incrimination and double jeopardy; (iii) the Sixth Amendment’s right to counsel, a speedy, public trial (by jury), and the right to confront witnesses and compulsory process; and (iv) the Eighth Amendment’s prohibition on cruel and unusual punishment and excessive fines
What protections against Arrest, Search, and Seizure are provided by the Fourth Amendment?
(1) searches and seizures must be reasonable and (2) there must be a valid warrant.
What is the Governmental Action requirement for constitutional protections?
The constitution protects against government action. The individuals committing the transgression must be acting in their professional capacities.
When does the Government intrude via unreasonable search?
Where the individual has an actual, subjective expectation of privacy that society is willing to recognize as objectively reasonable.
What are the accepted realms where one can reasonably expect privacy?
(i) on one’s person; (ii) in private conversations; (iii) in personal residence and nearby “cartilage”, barns, sheds, etc.; (iv) in closed containers (cars, luggage, safes); and (v) in the workplace (though weaker than the home)
Where can an individual not reasonably expect privacy?
(i) as to odors emanating from properties; (ii) in garbage; (iii) on bank statements; and (iv) in a prison cell.
What are the two types of Seizure that the Fourth Amendment Protects?
The Seizure of (1) persons and (2) property.
What constitutes a seizure of a person?
An individual is seized by a government actor using physical force or a show of authority to restrain the person’s liberty. (i) if a person submits to a showing of government authority; (ii) if the government officer successfully arrests (with or without use of force); (iii) if a government officer physically subdues or restrains a person.
What constitutes seizure of property?
When the government assumes possession and control of the property.
What level of force may the police use to effectuate a seizure (personal or property)?
The police may only use force that is reasonable under the circumstances.
What is a Warrant?
A Warrant is a Writ directing or authorizing an arrest, a search, or a seizure.
What are the components of a Valid Warrant (under the Fourth Amendment)?
The Warrant must (i) be supported by probably cause, (ii) be issued on oath or affirmation; and (iii) particularly describe who or what is to be searched or seized. It must be signed by a qualified, neutral, and detached magistrate.
What is necessary to show probable cause for the issuance of a Warrant?
There must be evidence of a sufficient nature and quality to provide reasonable grounds to believe (not mere suspicion) that there is a fair probability that: (i) in the case of a search warrant, contraband or evidence of a crime will be found; (ii) in the case of an arrest, the particularly person has committed or is committing a crime. Probably cause must continue to exist at the time the warrant is executed
What are the requirements of the Oath or Affirmation of the Warrant?
A law enforcement officer requesting a Warrant may present a sworn affidavit setting for the facts of probably cause, and it must be based on: (i) the officer’s personal knowledge or (ii) hearsay with sufficient independent corroboration or (iii) information from a confidential informant.
What are the Particularity requirements of a Warrant application?
The Warrant must describe the place to be searched such that a person relying on it, with reasonable certainty, can ascertain and identify the specific location where the search is authorized. Law enforcement may only seize the specific person or things described in the warrant from the place described in the warrant.
What are the constituent requirements of the *execution * (the act of serving) an otherwise valid Warrant?
(i) the Warrant must be executed within a reasonable time after it is issued; (ii) the scope of the search and seizure cannot exceed the Warrant’s specifications; and (iii) the manner of entry must be proper.
What is the remedy for evidence obtained as a result of a Warrant violation?
The defendant can have the evidence excluded.
How can an officer justify a warrantless search or seizure?
A warrant-less search or seizure is presumed unreasonable. The duty falls to the officer to show that the challenged action satisfies an exception to the warrant requirement.
Wha are the Exceptions to the Warrant requirement?
(i) The Good Faith exception; (ii) the Plain-View doctrine; (iii) Arrests and Seizures incidental to lawful arrests; (iv) Terry stop-and-frisks; (v) Exigent Circumstances; (vi) the automobile exception; (vii) consent; (viii) administrative searches; (ix) inventory searches; and (x) special-needs searches
Can an officer make an arrest without a warrant?
Generally, no. But incidental to a lawful arrest, officers may conduct a search of the arrestee’s person and the immediate vicinity without a warrant or other justification.
What are the requirements of a lawful Terry Stop (stop-and-frisk)?
The Officer must have a reasonable suspicion that the individual is engaged in criminal activity. The Officer may conduct a brief and cursory pated-won of the individual’s outer clothing to in search of a deadly weapon if the totality of the circumstances would lead a reasonable person to suspect the individual poses a danger to the officers or others.
What are Exigent Circumstances where an officer can act without a Warrant?
(i) in hot pursuit; (ii) where a dangerous criminal poses an imminent risk of harm; (iii) where there is a risk of imminent destruction of evidence; or (iv) the emergency-aid exception
What is the Automobile Exception that allows officers to act without a Warrant?
Motor vehicles may be searched or seized in connection with a lawful arrest or a Terry stop-and-frisk.
What is the Consent exception that allows an offer to act without a warrant?
A government official may conduct a search without a warrant or probably cause based on the subject’s consent, provided that the consent (a) was voluntary and (b) the individual was authorized to grant consent.
What is the inventory search exception to acting without a Warrant?
For property that law enforcement possesses, it may conduct an inventory if the owner’s diminished expectation of privacy is outweighed by (1) a need to protect law enforcement from potential danger or from a claim of lost or stolen property or (2) the owner’s property from loss or damage while it’s in government custody.
What are Special Needs searches without warrants?
These are searches (1) that must further a special need beyond the normal law enforcement need that would be compromised by seeking a Warrant or a probably cause requirement and (2) the governmental interest by the search must outweigh the nature of the intrusion on the implicated privacy interest. Permissible Special-Needs searches include: (i) wantless searches of parolees; (ii) warrantless strip-search of prisoners; (iii) programatic, suspicion-less drug test of employees or public-school students; and (iv) sobriety checkpoints on public roadways.
What is the Border exception to the Fourth Amendment?
The Fourth Amendment does not protect against routine stops and searches at borders.
Are public school employees limited by the Fourth Amendment?
Yes. As Government Actors their search or seizure of public-school students must satisfy the Fourth Amendment. Searches must be reasonable under the circumstances.
What are the principle criminal protection of the Fifth Amendment?
(1) the privilege against compulsory self-incrimination; and (2) the protection against double jeopardy. The fifth amendment also provides a right to indictment by a grand jury in certain federal cases.
What is the Fifth Amendment Right against Self-Incrimination?
No one shall be compelled, in any criminal case, to be a witness against himself.
What are the notification requirements of the Miranda Doctrine (Miranda v. Arizona, 1966)
Law enforcement must (1) inform the suspect of his rights, and (2) make reasonably certain that the suspect has knowingly, intelligently, and voluntarily waved those rights.
What must law enforcement receive before they can commence custodial interrogation?
The custodial suspect must be warned of and waive their Fish Amendment rights before custodial interrogation may begin. Any pretrial, custodial statement elicited from a suspect without proper warning and waiver are inadmissible against the suspect at trial.
What are the substantive components of the Miranda warning?
(1) the suspect has the right to remain silent; (2) the suspect is told that anything he says may be used against him; and (3) the suspect has a right to an attorney.
What is a Knowing and Intelligent waiver of one’s Miranda rights?
To show that the suspect waived his Miranda rights, the government must show that (i) the Miranda warnings were clearly communicated to the suspect; (ii) the suspect was given an opportunity to contemplate the warning; and (iii) there is no affirmative evidence indicating that the suspect did not understand the rights; and (iv) the suspect proceeded to make self-incriminating statement in response to interrogation.
What is a Voluntary waiver of one’s Miranda rights?
The waiver cannot be coerced by law enforcement.
What is the scope of the Miranda Waiver?
Once a suspect waives his Miranda rights, the police may interrogate him about any crime. It is not offense-specific.
Can a suspect withdraw his Miranda Waiver?
Yes – he may withdraw a prior waiver and end the interrogation at any time by reasserting his Miranda rights.
How can a suspect invoke his Miranda rights?
With a clear, express and unequivocal statement that either (1) he wishes to remain silent or (2) he requests representation by an attorney.
What is the effect of a valid invocation of Miranda rights on an ongoing interrogation?
After a suspect invokes his Miranda rights, the custodial interrogation must cease. Any statement obtained after the valid invocation of the Miranda rights will be inadmissible for the purpose of proving guilt.
Can law enforcement ever resume a custodial interrogation after a suspect invokes his Miranda rights?
It’s a high bar. Any statements made based on waiver of rights made by a suspect after he’s invoked his Miranda right to counsel, without the assistant of an attorney, is per se invalid. If, however, the suspect invokes only his right to remain silent, and law enforcement scrupulously honors that right for an adequate period of time, law enforcement may alter initiate an attempt to resume an investigation based on administration of new Miranda warning and a valid waiver.
What is the Public-Safety exception to the Miranda rights?
The Public-Safety exception is the single exception to Miranda’s requirement that a suspect in custody must be warned of the consequence of making incriminating statements to law enforcement. A statement taken in violation of Miranda is fully admissible if the custodial questioning that resulted in the incriminating admission was reasonably caused by a concern for public safety.
Can statements obtained in violation of a suspect’s Miranda rights be used in court proceedings?
Yes, but with limitations. They cannot be used to prove a suspect’s guilt, but they can be used to impeach a defendant’s testimony.
