final Flashcards
1
Q
4th Amendment Analysis
A
- is it implicated
- does the person search/seized have standing to challenge?
- was there a warrant
- was it a valid warrant
- warrantless exceptions
- exclusionary rule
- terry doctrine
2
Q
Is it a search of a person?
A
-subjective expectation of privacy
-would society objectively think the expectation is reasonable?
(Katz)
=4th implicated
3
Q
Trespass of home/curtilage
A
=4th implicated Consider: 1. proximity of the area of home 2. nature of use of area 3. steps taken by owner to prevent observation of area 4. is the area enclosed
4
Q
is it a search of an object?
A
did the police interfere with the possessory interest of the person who owns/posses the object?
(Hicks)
5
Q
Is it a seizure of a person?
A
yes - if police used physical force
no - ask if:
1. was there a show of authority to which the defendant submitted?
6
Q
test for show of authority during seizure or person?
A
would a reasonable person under all of the circumstances have felt free to walk away?
- if no, it is a seizure
- if somewhere enclosed and cannot physically walk away them would a reasonable person under all the circumstances felt free to terminate encounter?
7
Q
Is there standing to challenge search/seizure?
A
- always standing to challenge search or seizure of his or her person?
- a thief never has standing to challenge search or seizure of his or her person or of the object stolen
- the operator of a rental car has standing
- must have meaningful connection to a home that is searched
8
Q
burden for challenging standing
A
the government. if the government/judge does not question standing tha presumed to exist
9
Q
after 4th has been implicated and there is standing to challenge search/seizure ask…
A
did police have a warrant and was it valid
10
Q
valid warrant must:
A
- be supported by probable cause that the person is about to commit a crime or believe the place to be searched contains the object to be seized
- issued by a neutral and detached magistrate
- be supported by an affidavit signed under oath
- describe with specificity the place/person to be searched
- describe with specificity the items to be seized
11
Q
Test under a totality of the circumstance to determine if probable cause exists
A
- information from an informant
- experience of police officer
- arrestee’s prior criminal record
- information from witness/victim
- furtive gestures or flight
- nature of area ex: high crime
- common enterprise among actors
12
Q
questions to ask about an informant when determining probable cause
A
- basis of knowledge shown?
- reliability of information demonstrated?
- self-verifying detail?
- can the information be corroborated?
13
Q
when executing a lawful warrant police must:
A
- knock and announce their presence before entering
2. wait a reasonable period of time after knocking and announcing before entering
14
Q
when executing a lawful warrant police may:
A
- detain all occupants during the period of the search
- bring an occupant who has left before police go inside back into the premises if they are in the immediate vicinity of the home
- in sight of vicinity and ease of reentry from where occupant is located
- use reasonable methods to detain the occupants including handcuffing
15
Q
if no warrant what exceptions apply?
A
- exigent circumstances
- search incident to a lawful arrest
- automobile exception
- plain view and plain touch
- consent
- inventory search
16
Q
exigent circumstances
A
- true emergency not created by police
- emergency must be such that the warrantless intrusion is imperative:
- chasing felon
- providing aid to victim
- providing assistance to those threatened with injury
- rationale = protect against danger and to prevent destruction of evidence
17
Q
Search Incident to a Lawful arrest
A
- police may search area within immediate control
- lawful = probable cause
- when arresting occupant of car:
- search interior of car if:
1. occupant unsecured and within reach of car
2. if occupant secured, if reasonable to believe further evidence of crime for which the occupant is being arrested will be found inside car. - protective sweep = search immediately adjoining places of arrest
- rationale = prevent destruction of evidence, prevent danger to police, and discover evidence of any crime
18
Q
Automobile exception
A
- no warrant necessary when police have probable cause to believe a car contains evidence of a crime
- can search the car anywhere where the object they are searching for can be found or more can be found if they have probable cause
- if searching container can only search container unless in the container gives reason to believe same or related evidence found inside car
- rationale = reduced expectation of privacy because ready mobility and heavily regulated by state
19
Q
Plain view
A
Evidence in plain view can be seized if:
- police lawfully on premise
- incriminating nature of the evidence seen in plain view is immediately apparent
20
Q
Plain Touch
A
if during the course of a lawful frisk, police feel an object whose incriminating character is immediately apparent without having to manipulate the object, they may reach into the area and remove the object.
21
Q
Consent
A
- police can search without probable cause if voluntarily consent
- only consenting to a claim or show of authority is not voluntary
- consent of third party if reasonable person could conclude the one giving consent ha authority to do so
- cannot search if co-occupants one consents and one doesnt
- if one co-occupant is not present do not need their consent
22
Q
inventory search
A
- permitted pursuant to police community caretaking functions
- conducted according to specific police protocols that cannot give police absolute discretion of when and where to search
- rationale = protect police against claims of theft, protect police against any danger that could be cause by an object within the are, and to protect property of the car owner
23
Q
the exclusionary rule will not bar admission of evidence at trial if:
A
- the evidence would have inevitably been found by police using predictable and proper investigatory procedures
- the evidence was discovered through a source completely independent of the illegal procedure used by police
- the discovery of the evidence has been reduced by intervening circumstance unrelated to the unlawful police activity
- the police searched or seized in good faith reliance on a warrant
24
Q
When does good faith reliance not count for exclusionary rule
A
- warrant is so lacking in probable cause that no reasonable officer would have believed probable cause existed
- judge merely acted as rubber stamp
- warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid
- the officer misleads the judge with information they know is false or would have known was false except for their reckless disregard for the truth
- acted on an error or mistake by others that was not deliberate, reckless, grossly negligent, or the product of a systematic or recurring negligence
25
Terry Doctrine definition
a detention pursuant to terry is a lesser intrusion on ones privacy than a full blown arrest that must be supported by probable cause to believe the individual has committed a crime. Thus terry detention does not require probable cause but does require reasonable articulate suspicion that a crime has been or is about to be committed by the person detained.
26
Terry Doctrine
1. a detention of an individual occurs if the actions of police would lead a reasonable person to believe that he or she is not free to walk away
2. free to leave based on totality of the circumstance test
3. police may detain a person only if the officer has reasonable articulate suspicion to believe the person has committed or is about to commit a crime
4. if reasonable articulate suspicion exists, police are permitted to detain the individual only as long as it takes to dispel o confirm suspicion
5. police may during the course of a lawful detention, frisk an individual if the officer has reasonable suspicion to believe the person is armed and dangerous
- frisk not automatically permitted
27
totality of the circumstances test for terry doctrine factors;
1. how many officers present
2. display of weapons
3. tone of voice
4. holding on to ones id
5. time of day
6. language employed by officer
7. where were officers positioned
28
14th Amendment due process
concerned with the fundamental fairness under the totality of the circumstances to prevent unfair, offensive police tactics that overbear a defendant's will.
- aim is not to exclude presumptively false evidence but to prevent fundamental unfairness in the use of evidence whether true or false
- deterence of police misconduct
29
14th amendment examples of not using fundamental fairness
1. physical violence during interrogation
2. prolonged periods of questioning
3. depriving of food/water/bathroom breaks/sleep
4. involuntary confession - fear physical violence/coercion
5. "shock the conscience"
6. must have action by the police/state actor not just "voices from God"
30
5th amendment definition
no person shall be compelled in any criminal case to be a witness against himself, deprived of life, liberty, or property, without due process of law.
- right against self-incrimination based on police coercion
- applies to custodial interrogation by a state actor in a criminal case
31
Miranda Warnings
- must be given before custodial interrogation takes place
1. right to remain silent
2. anything say can be used in court
3. right to counsel
4. if cannot afford one appointed
5. right to counsel present during questioning
32
When must Miranda be given?
custody, interrogation, state action
- custody measured by objective standard given the totality of the circumstances surrounding interrogation would a reasonable person have felt free to terminate the interrogation
- interrogation = express questioning or any words or actions as part of the police that the police know or should know are reasonably likely to elicit an incriminating response
33
Exceptions to miranda requirements
1. imminent threat to public safety
2. routine booking questions = simple id info
3. undercover police officer placed in a cell w/ a defendant
34
How may a defendant invoke his miranda rights to counsel and remain silent
invocation of the right to counsel must be unequivocal and unambiguous
- someone else may not invoke the right on the defendant's behalf - must be asserted themselves
- reasonable police officer in the circumstances would understand the statement to be a request for an attorney
35
What is the effect of defendant's invocation of his miranda right to remain silent?
- must be honored
- all questioning must cease when right is invoked
- questioning can resume if the suspect himself categorically re-initiates a conversation or a significant period of time has elapsed before police re-interrogating
- must re mirandize
36
what is the effect of the defendant's invocation of his miranda right to counsel?
once a defendant invokes his right to counsel all questioning must cease until counsel is preset or the defendant re-initiates discussion, the police me re-interrogate only if there has been a break in custody of at least 14 days, after 14 days police may re-interrogate after again reading miranda
-can initiate once counsel is present
37
when is the statement the fruit of a miranda violation?
- being interrogated by police, any statement given without miranda warnings is inadmissible
- can cure by giving miranda prior to a second statement
- absent deliberate coercion or improper tactics n obtaining the first non mirandized statement does not warrant a presumption of compulsion as to the second statement
- if police engage in bad faith tactics designed to undermine miranda warning both mirandized and un-mirandized statements will be suppressed.
38
6th amendment right to counsel definition
guarantees an accused in a criminal prosecution the right to have the assistance of counsel for his defense.
- purpose = defendants receive fair trial
- applies only to those who have accused of a crime
- does not apply to suspects
- can be questioned about unrelated offences
39
when does the 6th amendment right to counsel apply?
- offense specific
- does not automatically invoke the 5th amendment miranda right to counsel
- prosecution has commenced
- by the time a defendant is brought before a judicial officer
40
how is the 6th amendment right to counsel invoked?
- if court appointed counsel presumed waiver of right to counsel after miranda will be involuntary
- once invoked police may not initiate or re-initiate interrogation unless counsel is present
41
Waiver of 6th amendment right to counsel
can be waived as long as relinquishment of the right is voluntary, knowing and intelligent, which can be established by recitation of miranda rights
