Criminal Procedure (MBE/MEE) Flashcards
Fourth Amendment: General Principles
- Basic Rule: Prohibits unreasonable searches and seizure
- Government Conduct: Protects only against government or police agency action; not private actors, unless private person directed by police or deputized private police
- Standing: D must have reasonable expectation of privacy as to places searched or items seized
Seizure
Occurs when police, by means of physical force OR show of authority, terminate/restrain a person’s freedom of movement.
Test: Under the totality of the circumstances, would a reasonable person feel free to leave?
Types: Arrest, Stop and Frisk, Police Checkpoints, and Traffic Stops
Seizure: Terry Stop
- Seizure: Temporary detention that constitues seizure if the officer, by means of physical force/show of authority, has in some way restrained (physical restraint or an order to stop) the liberty of a citizen
- Valid when an officer has a reasonable suspicion based on articulable facts that, under the totality of the circumstances, someone is engaged in criminal activity
Seizure: Traffic Stops
Officers must have reasonable suspicion to stop a car, but do not need to have reasonable suspicion if they pull over everyone during a checkpoint
Seizure: Arrest
- There must be probable cause to believe that the arrested individual has committed a crime
- Generally, requires an arrest warrant but can be with or without
Seizure: Arrest Warrant
To be valid, an arrest warrant must:
* Be issued by a neutral magistrate;
* Upon a finding of probable cause; and
* Describe with particularity the D and the crime
Seizure: Scope of Arrest Warrant
- Individual’s Home: Arrest warrant allows officers to enter an individual’s home to arrest that individua
- Third Party’s Home/Business: Arrest warrant does not authorize officers to enter a third party’s home/business absent a search warrant or an exception to the search warrant requirement.
Seizure: Deficient Arrest Warrant
Does not invalidate arrest as long as there was probable cause
Seizure: Warrantless Arrest
- Arrest warrant not needed in public place, felony, or misdemeanor in arresting party’s presence
- In determining whether crime was committed, question is whether officer could conclude under totality of circumstances that there was a substantial chance of criminal activity
Seizure: Scope of Warrantless Arrest
Absent an arrest warrant, officers can only arrest someone inside a dwelling if:
* There are exigent circumstances (e.g., felony hot pursuit); or
* There is consent to enter
Seizure: Illegal Arrest
- Invalid arrest alone not a defense to crime charged
- May result in exclusion of evidence discovered during arrest
Seizure: Pretextual Arrest
As long as police have PC to believe an individual committed a crime, it is irrelevant whether the officer stopped that person for the crime for which there is PC or for some other crime
Facts Supporting Probable Cause
- Officer’s personal observations
- Information from reliable, known informant or verified unknown informant
- Evidence seized during stop and based on reasonable suspicion, discovered in plain view, or during consensual search
Search
Occurs when government conduct violates a reasonable expectation of privacy or physically intrudes onto a protected area
Note: Government’s actions are valid unless it is the defendant who has the reasonable expectation of privacy
Search: Home, Private Room, Office
- Home and curtilige, motel rooms, and business premises are protected and therefore have a reasonable expectation of privacy
- Use of drug-sniffing dog is a search if physically intrudes onto constitutionally protected property
Search: Luggge
There is a reasonable expectation of privacy for invasive searches but not for canine sniffs
Search: Open Areas/Public Streets
Outside curtilage (area of land immediately surrounding house), there is no reasonable expectation of privacy
Search: Garbage Cans and Abandoned Property
No reasonable expectation of privacy
Search: Cars
- Reasonable expectation of privacy, albeit limited, in your car
- Odor from Car: No reasonable expectation of privacy
- Rental car: Fact that a person in lawful possession of a rental car is not listed on rental agreement does not defeat his reasonable expectation of privacy
Search: Use of Technological Devices
The following may constitute searches:
* Attaching a tracking device to a person without consent;
* Collecting cell-site location information from a wireless carrier to track a person
* Physically intruding on a suspect’s property to install a technological device
* Use of sense-enhancing devices not used by general public
Search: Search Warrant
To be valid, a search warrant must:
(1) Be issued by a neutral magistrate;
(2) Upon a finding of probable cause; and
(3) Describe with particularity the the places to be searched and the items to be seized (requires reasonable belief that contraband will be found)
* Can also refer to contraband as “other fruits, instrumentalities, or evidence of crime at this time unknown” and still be valid
Search: Warrant for Wiretap
Must have probable cause and a warrant, which must:
* Specifically identify whose conversations are to be intercepted, and
* Include an end date for the warrant
Note: Wiretap can be authorized for a limited period of time and police will be required to reveal intercepted conversation to court.
Search: Invalid Search Warrant
If a warrant is invalid, the items seized pursuant to the warrant will be excluded from the prosecution’s case-in-chief
Exceptions to Search Warrant Requirement
There are seven major exceptions (ESCAPES):
* Exigent circumstances
* Search incident to arrest
* Consent
* Automobiles
* Plain view
* Evidence obtained from administrative searches
* Stop and Frisk
Search Incidental to Lawful Arrest: Individual
- If arrest is lawful, may search person being arrested and immediate surrounding area (i.e., wingspan) for weapons or evidence
- Does not include cell phone or laptop but includes pockets/containers
Search Incident to Lawful Arrest: Home
Officers may conduct a quick and limited visual inspection of immediately adjacent places (a “protective sweep”) for people that may be hiding
Search Incident to Lawful Arrest: Vehicle
Officers may search passenger compartment if:
* Arrestee is within reaching distance of passenger compartment (threat of weapons/evidence) during search, or
* Reasonable that evidence of offense might be in vehicle
Search Warrant Exception: Exigent Circumstances
- Police may conduct a search without a search warrant if they have probable cause and, under the totality of the circumstances, exigent circumstances exist (e.g., hot pursuit or immediate danger)
- Police may not create the exigency
Exigent Circumstances: Hot Pursuit of Felon
Police in pursuit of a suspect can seize “mere” evidence (not fruits/instrumentalities of crime) from a private building if they have PC to believe the suspect committed a felony
Exigent Circumstances: Emergency
Police officer must have objectively reasonable belief that delay in getting warrant would result in immediate danger of evidence destruction, police/public safety or fleeing felon
Terry Stop and Frisk: Passenger Compartment
Police can conduct search of places where a weapon could be hidden if police have reasonable belief suspect is dangerous and may get immediate control of weapons
Search Warrant Exception: Consent
- Search cannot exceed scope of consent
- Must be voluntary (no threats, compulsion, or false assertion of lawful authority)
- Third Party: Can consent to own property search, but D’s property only if agency relationship to D or D assumes risk of search when giving right to 3P to consent to search
Search Warrant Exception: Automobiles
- Can search any part of car if probable cause that it contains contraband/evidence of crime
- Does not permit warrantless entry of home or curtilage in order to search a vehicle therein
Search Warrant Exception: Plain View
- Public View: No reasonable expectation of privacy
- Private view: If police are legally present, and incriminating nature of item immediately aparent, officer can sieze the item, even if not in warrant
Search Warrant Exception: Evidence Obtained from Administrative Searches
Two kinds of administrative searches:
* Administrative warrants (e.g., fire or health inspections of a building)
* Warrantless administrative searches: Used to ensure compliance with various administrative regulations (e.g., airplane boarding areas)
Search Warrant Exception: Terry Stop and Frisk
- Officer without probable cause may pat down person’s outer clothing if officer has reasonable suspicion that suspect was/is involved in criminal activity and that the frisk is necessary for safety
- Plain Feel: If officer conducting valid frisk feels object whose identity is immediately known (i.e., PC of contraband) it can be seized
Exclusionary Rule
- Rule: Evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments is inadmissible at the criminal trial of the person whose rights were violated.
- Does not apply to: grand jury proceedings, when evidence is used as impeachment evidence against the D, civil proceedings, etc.
- Standing: Violation must have been of D’s rights
Exclusionary Rule: Standard of Review
- Standard of Review: Factual findings are reviewed for clear error; findings of law are reviewed de novo
- Harmless Error: Court can refuse to order new trial if error harmless beyond a reasonable doubt
Exclusionary Rule: Fruit of the Poisonous Tree
Exclusionary rule applies not only to evidence initially seized as a result of government illegality but also to secondary derivative evidence resulting from primary taint