Key Cases & Doctrines Flashcards
Predication Standard
Probable Cause Factors
1. Fair Probability (Gates)
a. Reasonable Person Standard
b. More Likely than Not Standard (Pringle)
2. Totality of Circumstances (Brinegar)
a. No Conclusory Statements (Nathanson)
b. Reliable Sources (Spinelli)
c. Verification of Information (Draper)
Predication Standard
Reasonable Suspicion
- Specific and Articulable Facts
- Need to Disarm Suspect or Preserve Evidence
Predication Standard
Exigent Circumstances
- Hot Pursuit
- Emergency Aid
- Preservation of Evidence
Predication Standard
Voluntariness Test
and Coercive & NonCoercive Factors
- Not Coerced (explicit or implicit)
- Totality of Circumstances
- Burden of Proof: Defendant
- Scope: Objective Reasonableness
Coercive Factors
- Exploiting Illegal Arrest
- Deception - False Claim of Warrant
NonCoercive Factors
- Threat of Lawful Incarceration
- Ready Discovery of Evidence
- Deception - Unknown Identity of Police
NonDispositive Factors
- Mental/Emotional Condiction
- Deception - False Claim of Ability to Obtain Warrant
- Deception - Unknown Intentions of Police
Predication Standard
Diminished Expectations of Privacy
- School Children
- Prisoners
- Probationers
Coverage
Search
REOP
The Fourth Amendment protects people, not places
Protects against the intrusion on a person’s privacy interests. Katz v. United States (1967)
A person has a reasonable expectation of privacy where they:
- Exhibit an actual, subjective expectation of privacy, and
- Society recognizes that as a reasonable expectation
Coverage
Search
Warrant Exceptions
- Search Incident to Lawful Arrest
- Automobile Exception
- Plain View/Things Held Out to the Public
- Consent
- Terry Stops/Investigative Detention
- Exigent Circumstances
- Administrative/Regulatory Inspections
- Inventory Searches
- Undercover Investigations
- Personal Characteristics (Exemplars, Fingerprinting, etc.)
Coverage
Search:
Protected Interests
- Persons
- Residential Dwellings
a. Curtilage
b. Use of Technology not in Common Use - CSLI
- Personal Effects
- Network Surveillance - Content
Search Warrant
Requirements
- Probable Cause
- Neutral & Detatched Magistrate
- Particularity - Place & Things
- Oath or Affirmation
Search Warrant Execution
Requirements
- Reasonable Time
- Knock & Announce (unless Exceptions)
- Persons on Premises (may or may not be detained/searched)
- Proportionate Intensity & Duration
- Presence of Third Parties (must be proper)
Reasonable Use of Force
Factors
- Severity of crime
- Immediate Threat to safety
- Suspect Resisting or Evading Arrest
- **Not Subjective - **Officer’s Split-Second Judgments **
- Objective - Totality of Circumstances
Arrest
Requirements
- Warrant (unless exception)
- Use of Reasonable Force
- If Warrantless –> Prompt Judicial Review
Scope
Immediate Control/Grabbable Area
Reasonable for Officer to search and/or seize to:
1. Disarm Suspect
2. Preserve Evidence (Chimel)
Before suspect is arrested/handcuffed (Gant)
Scope
Protective Sweep
Officer may look beyond the immediate control/grabbable area IF
Reasonable Suspicion : May search other parts of the premises
Without Reasonable Suspicion: Areas from whIch an attack could be immediately launched, including closets and other spaces outside the immediate area of arrest
Automobile Exception
Requiring Probable Cause
- Entire Vehicle Search
- Closed Containers in Vehicle
- Motor Homes
Automobile Exception
Requiring Reasonable Suspicion
- Search Incident to Lawful Arrest (Immediate Control/Grabbable Area)
- Passenger’s Belongings
Coverage
“Free to Leave” Standard
Factors
- Threatening presence of Several Officers
- Display of Weapons by officers
- Physical Touching by officers
- Use of compelling language or tone
- Blocking Exists
- Length of Time
Predication
Terry Stop
Reasonable Particularized Suspicion
- Totality of Circumstances (Objective & Subjective observations, crime levels of area)
- Particularized Suspicion (conduct, personal characteristics, reliable informants)
Search
Requiring Reduced/Altered Probable Cause
- Business Premises
- Border Searches
- Students
- Drug Testing Certain Employees
- Probationers/Parolees
Entrapment
1. Inducement
Opportunity + something else
.
2. Lack of Predisposition (Subjective v. Objective)
Subjective (Fact) - government actual caused + defendant’s predisposition
Objective (Law) - government conduct goes too far + reasonable person predisposition
.
3. Due Process Considerations (Shock the Conscience)
.
.
Other Types of Entrapment
1. No Private Entrapment
2. Vicarous Entrapment (entrappee entraps a third party)
3. Derivative Entrapment (agent induces entrappee to entrap third party)
Fifth Amendment Process
- Government Questions?
- Custody + Interrogation?
- Warnings?
- Invocation of Rights?
- Waiver?
.
.
Other Considerations
Testimonial?
Public Safety Exception?
Shock the Conscience/Due Process?
False Confessions?
Prophylactic Rules
- Miranda
- Exclusionary Rule
- Sixth Amendment - No Subsequent Police-Initiated Contact
Fifth Amendment
Custody
(and Exceptions)
- Formal Arrest
- Voluntary Interrogee Informed of Suspect Status
- Held at Gunpoint by Police
.
.
Exceptions - Voluntary Stationhouse Questioning
- “Free to Leave” Standard
- Traffic Stops
- Custody Short of Formal Arrest
- Probation Interviews
- Voluntary Interoggee Unaware of Suspect Status
Fifth Amendment
Interrogation
(and Exceptions)
- Express Questioning
- Functional Equivalent
a. Words or Actions
b. Knew or should have known
c. Reasonably Likely to elicity incriminating response
.
Exceptions
1. Direct Questioning Exceptions
a. DUI Arrest - Asking for BAC
b. Routine Booking Questions (Not for Investigative Purposes)
c. Direct Questions that Do Not Call for an Incriminating Response (Hiibel)
2. Recordings of Third Parties While in Custody
3. Undercover Police Questioning
Fifth Amendment
Invocation
Right to Remain Silent
and Acceptable Reinitiation
- Express Invocation (not silence) (Berghuis)
- Knowing & Voluntary (Totality of Circumstances)
- Scrupulously Honored?
If Scrupulously Honored, police may reinitate questioning when:
1. Immediately stopped questioning upon invocation
2. Stopped for several hours
3. ReMirandized suspect
4. About a different crime (Michigan v. Mosely)
Fifth Amendment
Invocation:
Right to Counsel
and Acceptable & Unacceptable Reinitation
- Express Invocation
a. No Clarifying Questions
b. No Anticipatory Invocation - All Questioning Must Cease
- Acceptable Reinitiation
a. Initiates Further Communication
b. Break in Custody (14 days)
c. Public Safety Exception - Unacceptable Reinitiation
a. Lapse in Time
b. Not Crime-Specific
c. Continues after Charges Files
d. Continues after Consulting with Attorney
Fifth Amendment
Waiver
1. Knowing & Intelligent
‘
NOT REQUIRED:
a. aware of all possible subjects of questioning (Spring)
b. aware of full consequences (Barrett)
c. inform suspect attorney trying to reach them (Moran v. Burbine)
‘ .
2. Voluntary
Consider: overborne will and/or techniques used
.
ALLOWED:
(1) General Trickery/Deceit **(Frazier v. Cupp)
(2) Psychological Ploys –> Suspect’s balancing of competing interest
(3) Threat of conviction as a result of a fair trial
‘
NOT ALLOWED
(1) Threat of conviction as a result of an unfair trial
(2) Credible Threats of Physical Violence (Payne)
(3) Instilling Fear of Violence absent government protection (Fulminante)
(4) Exploiting/Prolonging Pain
.
3. Express or Implied (Totality of Circumstances)
4. Burden of Proof: Government - Preponderance of the Evidence
Sixth Amendment
Process
- Charges
- Deliberate Elicitation
- Offense-Specific Scope
- Miranda Warnings, Invocation, & Waiver
Sixth Amendment
Deliberate Elicitation
- AFTER Charges + Invocation
- Intentional questioning/creating situations (not passive listening)
- With intent to induce confession
Sixth Amendment
Invocation & Effective Waiver
Invocation: requires an affirmative act to request counsel, not merely have counsel appointed
.
.
Waiver: Knowing & Intelligent waiver of Miranda rights is sufficient
.
Rationale: defense counsel’s role is limited anyways
NOTE: After invocation it can only be waived by defendant-initiated contact, NOT police
Identification Procedures Process
1. Unnecessarily Suggestive
………. NO –> Admissible
YES –>
.
2. Reliable
……….YES –> Admissible
NO –>
.
3. Independent Source
………. YES –> Admissible
NO –> NOT Admissible
Identification Procedures
Unnecessarily Suggestive
Buden of Proof: Defendant
Considers ONLY the procedure used
Identification Procedures
Reliability
Burden of Proof: Defendant
.
Biggers Factors
1. Opportunity to view at time of crime
2. Witness’ Degree of Attention
3. Accuracy of prior description
4. Level of Certainty of witness
5. Time between crime and identification
.
Other Variables to Consider
1. Character of Witness
2. Characteristics of Perpetrator
3. Circumstances of the event
4. Composition of Lineup
Identification Procedures
Independent Source
Burden of Proof: Government
Application of the fruits doctrine for an incourt identification AFTER a prior lineup/identification
.
Factors to Consider
1. Biggers Factors
2. Prior misidentifications/failure to identify
3. Whether the witness otherwise knew the suspect
Grand Jury
Purpose/Rationale
- Investigate
- Charge
Grand Jury
Advantages
- Broad Subpoena Powers
- Secrecy Requirement
- Psychological Pressure
- Immunity Grants
- Witness has no right to
a. Counsel
b. Miranda Warnings
c. Warning that they are a potential defendant
d. Exculpatory evidence
e. Challenge subpoena for lack of probable cause
Grand Jury
Subpoenas
Overbroad Prohibition/Unreasonable Doctrine
Presumed Reasonable (Burden of Proof: Witness)
.
Cannot be burdensome or oppressive
1. Compels production of only relevant documents (can be personal documents)
2. Is made with Reasonable Particularity (includes reasonable categories), based on
a. Ability to Identify requested documents, and
b. Any Unreasonable Business Detriment
3. Covers a Reasonable Time Period
Grand Jury
Subpoenas
Constitutional Challenges
Unconstitutional Subject Matter –> Cannot Challenge
First Amendment –> Cannot Challenge
Fourth Amendment - Probable Cause –> Cannot Challenge/Not Applicable
Fourth Amendment - Exclusionary Rule –> Cannot Challenge/Not Applicable
Fifth Amendment - Self Incrimination –> CAN CHALLENGE
Fifth Amendment - Miranda Rights at Proceeding –> Cannot Challenge/Not Applicable
Grand Jury
Fifth Amendment Violations Process
- What is being compelled?
a. Documents (Boyd)
. - Is it testimonial or nontestimonial?
- .
- Is it incriminating?
a. Act-of-Production Doctrine?
. - Exceptions?
a. Forgone Conclusion?
b. Immunity Grant?
c. Waiver
Grand Jury
Foregone Conclusion Standard
Does the government already know:
- The subpoenaed party has possession of the documents?
- The documents exist?
- The documents are authentic?
Exclusionary Rule
Prohibits the introduction at a criminal trial of evidence obtained in violation of a defendant’s Fourth, Fifth, or Sixth Amendment Rights
The primary purpose of the rule is prophylactic: it deters the government from violating a person’s constitutional rights
The rule also serves a remedial purpose for the deprivation of constitutional rights
Exclusionary Rule
Attenuation Doctrine
Breaks the causal connection between the illegally gotten evidence and the evidence used at trial.
.
Unlawful Arrest + Consent to Search OR Unlawful Arrest + Voluntary Confession
–> Brown-Dunaway Rule (no dispositive factor)
1. Miranda Warnings?
2. Temporal Proximity
3. Intervening Circumstances
4. Purpose & Flagrancy of official misconduct
.
Discovery of Outstanding Warrant (Strieff)
Exclusionary Rule
Inevitable Discovery
- But-for causation is necessary, but not sufficient
- Burden of Proof: Government - Preponderance of the Evidence
- No Speculation
- Applies to fruits/derivative evidence
