Final

Question 1

4th Amendment Standing -
Do you need it?
Who can assert it?

Answer 1

• Need standing

- Cannot be vicariously asserted

Question 2

Search in violation of 4th Amendment Standing Rule Stated - what you need to claim right / standing

Answer 2

Whether there is a search in violation of 4th is whether YOU have an expectation of privacy

• petitioner must have a reasonable expectation of privacy in the Area Searched

Question 3

4th Standing locations:

1) Your Home / Residence =
2) Someone Else’s House =
3) Your Car + you’re there =
4) Your car + someone else is driving =
5) You are in someone else’s car =
6) Owner of car there + you’re there =

Answer 3

1) Person who owns or possesses (renter) the home has standing
2) None if just on premises
a) Maybe if sole occupant w/ permission of owner ; complete domination and control
b) Maybe if owner is also home - then a person can challenge , standing of an overnight guest
3) Yes
4) yes mostly can
5) depends on the area of car searched
6) maybe ; depends on expectation of privacy in area

Question 4

Reasons for Exclusionary Rule

Answer 4

1) Deterrence of bad Police behavior

2) Judicial Integrity

Question 5

Exclusionary Rule Exceptions

Answer 5

1) . Independent Source - Gained by way of an independent source from an unpoisoned tree
2) Inevitable Discovery - if they would have eventually found it anyway (inevitable they would find it)
3) Attenuation / Dissipation of Taint -

Factors to be considered:

a) Length of time between illegality and seizure 
b) Purposefulness and Flagrancy of bad conduct 
c) Existence of intervening causes 
	i) Such as an act of Free Will by Def 

4) Good Faith - (Must Balance)
substantial Social Cost vs. Violation for deterrence a) How much is the cost vs. how much deterrence is there really ?

Question 6

When is Suppression appropriate - 4th Amend violations ??

Answer 6

Suppression is Appropriate When

1) Police use knowingly false or reckless disregard for truth to get warrant
2) Magistrate got involved in crime solving / prosecution
3) Lacking PC by way of failure to specifically articulate the facts

4) Facially deficient in naming
the place to be searched and things to
be seized

Question 7

Exclusionary rule is NOT a remedy for…

Answer 7

knock and announce

Question 8

If the confession is Involuntary -violates …?

Answer 8

Due process (5th / 14th)

Question 9

Involuntary Confession Due Process Violation
Elements to claim?
Remedy?

Answer 9

Due Process RULE:

1) Must be a state action
2) Must have Standing - If coerced confession implicates another (same as 4th standing) - no standing
3) Exclusionary Rule - Involuntarily Obtained is Inadmissible at criminal trial or for Impeachment

Fruit of Poisonous Tree = most likely same as the 4th

Question 10

Interrogation 5th Amend Right Against Self Incrimination

Elements needed in case to claim

Answer 10

Violation if Confession is compelled
 Elements: 
a) Must be a person (not corp)
	i) Any Witness can claim the 5th
b) Compulsion
c) Criminal Case (not Civil)
d) Witness against himself (not another)
        i) Must be testimonial + Incriminating 
	ii) Real of physical evidence does not count
	iii) Oral or written does count

Question 11

Miranda Right to Counsel RULES

Answer 11

1) Triggered - Custodial + Interrogation
2) Waiver - Knowing , voluntary, + Intelligent
3) No Fruit of poisonous tree - anything can be used

Question 12

Statements taken INVOLUNTARILY w/o Miranda =

Answer 12

1) violation of the 5th + compelled then can NOT use to Impeach
a) Involuntary = Statement can NOT be used for any reason
b) Involuntary = fruits of statement can NOT be used

Question 13

Miranda Public Safety EXCEPTION

Answer 13

Immediate concern for the safety of the officer or public

Question 14

Non- coercive Miranda Violation; voluntary statement

Answer 14

a) Once warned the suspect is free to exercise his own volition in deciding whether or not to make a statement
ii) 2nd confession after warning

b) An unwarned admission does NOT warrant a presumption of compulsion

c) Fruit - Can use statement that led to witness
i) Statement made by a 3rd party

d) Can be used to Impeach

Question 15

Deliberate Violation of Miranda

Answer 15

a) bad faith
b) like one ongoing confession / interrogation
c) Waiver could not have been effective
* * Excluded **

Question 16

Custody =

Answer 16

Taken into custody or
otherwise deprived of his
freedom of action in
any significant way

Test:
How would a reasonable person in the same circumstances understood his situation?
ii. Notes:
1) CAN be in Prison but not in custody
2)Interrogated in PD interview room but not necessarily in custody

Question 17

Interrogation

Answer 17

1) Express questioning or Its functional equivalent

2) When police should know that conversation is reasonably likely to elicit an incriminating statement from the suspect
a) perceptions of the suspect not the intention of the police
b) police practice is designed to elicit such a response

If suspect is unusually susceptible to particular type of persuasion

Question 18

Miranda Waiver Analysis:

Answer 18

1) Once is determined that that the suspect made incriminating statements in response to custodial interrogation
2) Next issue = whether the police gave Miranda warning
3) Finally = if the suspect waived those rights

Question 19

Miranda Waiver Must be =

Answer 19

MUST be Voluntarily, knowingly, intelligently waived

a) Express statement can = waiver
b) Silence cannot = waiver

c) BUT does NOT have to be an express statement

i) May be = Silence + understanding + course of conduct indicating waiver (totality of the circumstances)
Some cases can infer a waiver

Question 20

Is Miranda once invoked crime specific?

Answer 20

NO - not crime specific

a) May NOT question about a crime different than the crime of the arrest.
b) Shield lasts 2 weeks after release

Question 21

Miranda Invoking Right to Counsel

Answer 21

• -> it must be done so unambiguously
• must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand
• Police must cut of all further questioning

Question 22

Miranda Waiver of Right to Remain Silent or RTC

Answer 22

• waive right to remain silent must be done so unambiguously (same rule as right to counsel)

Question 23

Once Invoked RTC then responding to further police questioning is …

Answer 23

NOT a valid waiver if police initiated custodial more interrogation
BUT it is if the accused himself initiated further communication

Question 24

Once invoked right to Remain Silent

Answer 24

Police must stop interrogation
i) When can police talk to suspect again?
(not the same rule as right to counsel)
Can cut off but then re-initiate later ;

Question 25

6th Amend Right to Counsel - takes effect

Answer 25

As soon as formal judicial proceedings begin against the Def

Question 26

6th Amend RTC RULES

Answer 26

1) May not deliberately elicit incriminating statements
i) this includes an undercover agent
ii) Not Violated by mere fact that the Gov’t has contacted Def about crime

2) Standing = Personal Right = belongs to the def
3) Offense Specific Right : Same crime = when lesser included offense
4) Waiver = Same as Miranda = Knowing, Intelligent, and voluntary (form is same too)
5) Fruit = Applies to Statements which are excluded, But can be used for impeachment
6) Statements Allowed to be used for other NEW crimes

BUT police can approach and attempt to get a waiver and get statements - Do NOT need to be represented at the waiver request

Question 27

Eye Witness ID - physical (corporeal)

Answer 27

1) Participation in a lineup does NOT violate the 5th right against self-incrimination

2) After formal proceedings begin - 6th RTC is in effect
- - a) W/o counsel can be suppressed
- - b)Testimony about it can be suppressed - tainted by earlier ID

3) Must challenge at trial - NOT a DP viol

Question 28

Eye Witness ID - photo (non- corporeal)

Answer 28

No RTC

Question 29

6th Amend RTC - questioning / elicitation … means ?

Answer 29

Only when DELIBERATLY / INTENTIONALLY elicit an

incriminating response

Question 30

Miranda Elicit / Interrogation .. means when …?

Answer 30

Words or actions that an officer SHOULD know is likely to elicit an

incriminating statement

(Negligence standard)