CrimP - Exclusionary, S&S Flashcards
Exceptions to Exclusionary Rule Examples
Grand Jury
GF reliance on warrant
Knock and announce violations
Independent source
Inevitable discovery
Intervening act
Impeachment of D’s testimony
Attenuation
Independent source exception to ER
Independent source of derivative evidence, source being separate from original illegality
May rediscover initially illegal evidence under valid W if police would have applied for and received W anyway
Re: independent source exception ER, is evidence of entirely unrelated crime admissible despite original illegality
Yes
2 cases where there is an exception to ER Used for impeachment of D’s testimony only
1) Confession taken in violation of Miranda;
and 2) real or physical evidence seized from illegal search
Exception to ER: attenuation and factors
Evidence with a “but for” link to a poison tree so distant from initial illegality
Factors: Temporal proximity
Intervening circumstances
Purpose and flagrancy of misconduct
4th Amendment Generally
4A protects against unreasonable S&S by the government or its agents
4A Standing
To have standing, D must have REP in place in the place searched - subjectively + objectively
Possessory right leads to 4A Standing?
Yes. Standing to object to S&S is proper if D had possessory right of place searched or item seized
Mere ownership insufficient
No REP where held out out to public? Examples
Yes.
Knowingly exposed to public
Open fields beyond home/curtilage
Smell of luggage
Misplaced trust in false friend
Sense-enhancing tech available for public use
Car in public
Abandoned property
Warrant requirement for S&S
Must be made with a valid W, which must be
1) issued by neutral magistrate
2) based on PC
3) describe w/ particularity
Probable Cause
Fair probability that would warrant a reasonable person to conclude that evidence of a crime can be found at a particular place or that a particular D committed a crime
Totality of circumstances test for PC based on informant’s tip
1) Informant’s veracity
2) Based of informant’s knowledge
3) Corroboration for police investigative predictive information showing insider knowledge
Anonymous tip ok
How to attack inaccuracies in facially valid warrant?
D must show materially false statements made intentionally or recklessly
Scope of warrant
Reasonable necessary to discover items.
Executed without unreasonable day while PC exists.
Scope of warrant: Is mere presence enough?
No.
Search of premises/car excludes the people present unless:
PC to arrest (search incident)
PC that item on person
Reasonable suspicion (RS) of danger (frisk) or
Identified in W
Knock and announce rule and exception
Police must give notice & wait reasonable time before entering to execute W
EXCEPT
When there is RS that announcing will lead to destruction or evidence, endanger officers or be futile
Exceptions to warrant requirement for S&S: list where PC alone for S&S
CHAMPED
Community caretaking
Hot pursuit
Automobile
Minor intrusion
Plain View
Exigency or destruction of evidence
Community caretaking exception to warrant
Going into home to make sure there isn’t further injury (based on objective TOTC)
Hot pursuit exception to warrant
Hot pursuit of fleeing felon suspects (where speed & safety are essential)
Can enter anyone’s home w/o w.
Evidence in plain view admissible.
What is automobile in automobile exception to warrant?
Any vehicle capable of moving, including a mobile home not fixed to the ground
Automobile exception to warrant: Initial RS: what can be done?
- Auto stop based on RS of violation of law
Automobile exception to warrant: initial PC: what can be done?
- Auto stop based on PC to believe criminal evidence in car > can search whole car, closed containers (size limited to evidence) and contents
Automobile exception to warrant: what if during lawful stop, PC arises to believe criminal evidence in container?
PC arises to believe criminal evidence in container > search limited to container or where it could be and once package is found, search is limited to package
Minor intrusion exception to warrant
Minor intrusion into body in reasonable manner (e.g. breathalyzer)
Plain view exception to warrant
PO is 1) lawfully present and positioned +
2) Immediately apparent that item is subject to seizure +
3) PC to believe evidence is associated with crime
Exigency or destruction of evidence exception to warrant
PC to believe evidence likely to disappear before W can be obtained.
Warrantless search must end roughly when exigency ends.
Seizure/Arrest
Restraint of liberty by physical force, or where that is absent, submission to assertion of authority
Objective standard: a reasonable person would not feel free to leave
Exceptions to seizure warrant: 2 types of arrest-related
Arrest in public (PC)
Arrest in home if in hot pursuit or exigency
Exceptions to seizure warrant: stop and frisk generally and what is required at stop and then frisk
Need RS.
Stop: Brief detention for investigative purpose, no longer than necessary to verify suspicion.
Frisk: pat down for weapons only if RS that suspect has weapon
Reasonable suspicion
1) Specific and articulable facts +
2) Reasonable inference from the facts that criminal activity may be afoot (stop) +
3) Subject may be armed or dangerous (frisk)
Exceptions to seizure warrant: during stop and frisk + plain feel: what can be seized?
During patdown, PO may seize items reasonably believed to be weapon or contraband (admissible as evidence)
Exceptions to seizure warrant: stop and frisk at auto stop: what is initially required, when can driver/passenger be frisked, and what limits are there under the search of the car?
Stop based on RS of state law violation > RS armed and dangerous > May frisk driver/passenger and search car limited to where weapon may be
Exception to seizure warrant: seizure by deadly force to prevent suspect escape: what is required
Requires:
PC to believe suspect significant threat of death or harm to PO or others +
Warning if feasible
Exceptions to S&S - no W or PC needed - list
SILACAT
SILA + Consent + Admin + Terry
Exceptions to S&S - no W or PC needed - 2 types of SILA non-auto-related
- SILA within arrestee’s immediate control, contemporaneous
- SILA - Protective Sweep - if police has RS of danger/attack in home, may search where person hiding (but not drawers)
Exceptions to S&S - no W or PC needed - 2 types of SILA auto and occupant-related
- PO can search inside vehicle (excl. trunk unless PC) incident to occupant’s arrest only when arrestee is unsecured AND within reaching distance of compartment while arrested
- PO can search whole vehicle incident to arrest if reasonable to believe evidence in vehicle related to crime of arrest
Exceptions to S&S - no W or PC needed - SILA inventory search
PO may conduct routine search of arrestee’s belonging or impounded car
Exceptions to S&S - no W or PC needed - Consent
PO may enter relying on consent of one reasonably believed to have actual or apparent joint authority (not hotel or landlord)
Physically present co-occupant’s explicit refusal prevails over 3P consent
Exceptions to S&S - no W, PC or RS needed - admin/special needs examples
Public schools
Junkyard
Border
Gov’t workplace
Check general reasonableness
Exceptions to S&S - no W, PC or RS needed - Checkpoint
Auto checkpoint if 1) neutral standard;
2) serves auto-related purpose
