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Crim Pro > Luke's Notes > Flashcards

Luke's Notes Flashcards

1
Q

When is evidence admissible when obtained illegally?

A

When there was no government action during the obtaining of the evidence.

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2
Q

“Seizure of person”

A

Occurs when a reasonable person in suspect’s position would not feel free to leave or otherwise terminate the encounter.

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3
Q

“Seizure of Property”

A

“Meaningful interference with an individual’s possessory interest in property”

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4
Q

How long must property be taken to amount to a seizure?

A

Taking property, even briefly, is seizure, but placing a tracking device on it is not.

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5
Q

How much force is necessary to seize a person?

A

Any use of force to restrain a suspect, or a show of authority followed by submission (including just pulling over for flashing lights).

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6
Q

What if police use new technology?

A

Judges decide REP and consider whether technology is known/readily available to citizens.

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7
Q

What is a “Search”

A

Government intrusion into a reasonable expectation of privacy.

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8
Q

What is the Katz test?

A

DF must have:

1) Expectation of privacy (such as pulling curtains closed)
2) Which society is prepared to recognize as reasonable

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9
Q

10 examples of no REP in public:

A

(1) The scent of marijuana escaping a suitcase
(2) Speaking in a glass phone booth where lip readers can see
(3) A private conversation where the other party has permitted police to record it
(4) Information in a pen register (phone company records of calls made)
(5) Header information (to and from) for e-mails
(6) Hand writing or voice exemplars
(7) Bank records
(8) Things in open fields, unoccupied areas beyond the curtilage of the home (even if police trespass into the open fields or breach a fence to get in)
(9) Naked eye observation by air so long as police comply with flight limitations
(10) Discarded property such as commingled garbage and abandoned rental premises.

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10
Q

What is “Standing”

A

To claim the EXCLUSIONARY remedy (if owner has REP but wrongdoer doesn’t), only those who are actual victims of the alleged violation have standing to challenge it.

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11
Q

What constitutes standing?

A

Ownership or possessory interest in the place searched.

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12
Q

Drivers have standing for any vehicle stop, but when do passengers have standing?

A

Only when stop is unconstitutional. Passengers have no privacy interest in interior of car and can not object to illegal search.

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13
Q

Is ownership of property sufficient for standing?

A

No. If you are a landlord and rent out the property, you are not in possession of it. And, if you own drugs, and throw them in someone’s purse, you have no right to exclude others from the purse.

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14
Q

What is the “exclusionary rule”?

A

A judge made rule which states that unconstitutionally obtained evidence must be excluded stemming from government action.

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15
Q

What is the “fruit of the poisonous tree”?

A

Any additional evidence derived from the initial illegality, including oral statements and physical objects. It is thrown out.

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16
Q

Exceptions to the “exclusionary rule”?

A

KING

  1. Knock & Announce Violation — exclusionary rule doesn’t apply to faulty knock (usually 15-20 seconds)
  2. Impeachment — even non-mirandized statements, except coerced confessions
  3. Non-guilt phase proceeding — watch for where evidence is introduced, e.g., grand jury / habeus corpus / civil proceedings / parole revocation hearing
  4. Good Faith Exception — good but for defective search warrant
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17
Q

Who bears the burden of showing that a warrant was improperly issued?

A

Defendant.

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18
Q

What are the requirements of a valid warrant?

A
  1. Probable Cause
  2. Particularity
  3. Neutral & Detached Magistrate
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19
Q

What is “Probable Cause”?

A

Must provide relevant facts that lead to the conclusion that it is MORE PROBABLE THAN NOT that a person committed a crime or that evidence will be found in a particular location. Information presented cannot be STALE (too old).

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20
Q

What are the requirements for Probable Cause?

A
  1. Must point to GUILT of a CRIME: Facts suggest a fairly narrow range of possibilities (not descriptions fitting large numbers of people or a large segment of the community).
  2. Must not be AMBIGUOUS: some uncertainty as to perp OK, NOT whether crime occurred; if unsure whether there was a crime, can’t start searching people.
  3. If as consistent with innocent activity as criminal, NO PC for arrest
  4. Hearsay tips may lead to PC if reliable, considering the totality of circumstances: Informant has “basis of knowledge” and high amount of “veracity”; Gates: Deficiency in one may be compensated for by a strong showing as to3 the other (e.g., anonymous but highly detailed tip, or a very reliable source with details that would otherwise be innocent / not very particular)
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21
Q

When are hearsay tips allowed?

A

When they are reliable, considering the totality of circumstances. Informant has “basis of knowledge” and “high amount of veracity” (old rule).

New rule (Gates): Deficiency in one may be compensated by a strong showing as to the other.

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22
Q

What is “Particularity”?

A

Must describe with REASONABLE CERTAINTY the place to be searched and the items to be seized. This includes right address or good description of particular place to be searched.

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23
Q

What information for a warrant is required if place to be searched is in a Multi-Unit Building?

A

Must specify apartment. If didn’t know it was multi-unit until got there, can search more IF:

(1) Nature of building unknown and could not have been discovered with reasonable investigation, AND
(2) discovery occurred after police proceeded so far that withdrawal would jeopardize search AND
(3) Upon discovery, reasonable efforts made to determine which unit most likely connected to criminality.

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24
Q

What is “Neutral and Detached Magistrate”?

A

(1) Not involved in search or investigation
(2) Not paid only upon issuing warrant
(3) Court clerk okay if capable of determining whether PC exists (within scope of expertise)

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25
Q

How to rehabilitate warrant if NOT issued by a NaDM?

A

Was the search done in good faith? If so, okay so long as officer should/could not have known it was NOT a good warrant.

So if officer misleads magistrate, then warrant is invalid. But if magistrate effs up, warrant can be relied on in good faith.

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26
Q

What is required for Plain View?

A
  1. Lawful vantage point from where evidence can be plainly viewed (watch for way to be lawfully present in house, e.g., hot pursuit or emergency response)
  2. AND has lawful right of access to the object (no trespass)
  3. AND incriminating of the item is “immediately apparent” by 5 senses (not hunch/curiosity)
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27
Q

Can plain view justify seizing items during the execution of a warrant when officers expected to encounter those items?

A

Yes.

28
Q

Does plain view justify warrantless search?

A

No. Only warrantless seizure.

29
Q

When doesn’t an officer need a warrant to arrest?

A

(1) The officer sees DF committing a felony or has PC that DF is committing or has committed a felony, or
(2) Sees DF committing a misdemeanor.

30
Q

Where can officers search incident to lawful arrest — at home?

A

Chimel: Police can search the wingspan “lunging distance” area (anything within suspect’s plain view or immediate control.

31
Q

When must officers search under Chimel?

A

Contemporaneously or immediately after arrest.

However, if police have a reasonable basis to believe they may be at risk of ambush while in the home, they may perform a cursory sweep – but only where suspect may be hiding.

32
Q

Where can officers search incident to lawful arrest — in a car?

A

Gant: Searching car incident to arrest is NOT permitted once DF is secured and cannot access the interior of the vehicle (since there is no longer any danger to police from anything within the arrestee’s wingspan, UNLESS it is reasonable to believe that evidence of the crime WHICH LED TO THE ARREST may be found in the vehicle.

33
Q

What is an “inventory search”?

A

Must be according to a routine, cannot search things not ordinarily opened.

34
Q

What is “consent”?

A

A knowing, voluntary (based on the totality of the circumstances) and intelligent giving of consent by someone with authority to consent.

35
Q

When is consent to a search INVALID?

A

Where obtained by asserting a fake warrant, fraudulently, under duress, or pursuant to an unlawful police threat (a threat to do something that the officer has no authority to do).

36
Q

Do police have to inform suspects of the right to decline consent?

A

NO.

37
Q

What is an example of IMPLIED consent?

A

Placing a bag on x-ray conveyor at the airport.

38
Q

Can individual place limitations on scope of consent?

A

Yes, but must be clearly expressed PRIOR to the officer finding evidence.

39
Q

What happens if consent is obtained AFTER unlawful seizure?

A

Seizure taints the fruit and the consent is non-consequential.

40
Q

When is Third-Party consent sufficient?

A

Resident, overnight guest, person officer reasonably believes has control over property, person sharing premises (UNLESS other co-T is present and objects, but not private areas where DF has exclusive control)

41
Q

Can landlord consent for tenant?

A

No. Neither can hotel owner for guest room, or employer for employee’s private storage area.

42
Q

What is “hot pursuit”?

A

When a suspect is fleeing, even if suspect flees into innocent 3P premises

43
Q

Can contraband be seized in 3P premises during hot pursuit?

A

Yes, because officers there lawfully.

44
Q

What is the “automobile exception”?

A

Under CARROLL, no warrant is needed for search of car where PC to believe contains contraband or evidence of criminal activity.

Officers may search anywhere in care that may contain contraband, but must be places thing would be.

45
Q

When must officers cease their search?

A

When the person or thing searched for has been located.

46
Q

Can officers search driver or in containers?

A

Not unless other evidence found that leads to it.

47
Q

Can vehicle be seized and searched later?

A

Yes, via impound.

48
Q

When does the automobile exception NOT apply?

A

Vehicles incapable of locomotion, or parked in an area not proximate to public roads.

49
Q

Automobile Exception — Justification & Intrusion Level: RS + Fear for Safety. What can be searched?

A

Interior of car, limited to weapons (but then plain view).

Any reason valid for stop OK, e.g. traffic stop to search for drugs.

50
Q

Automobile Exception — Justification & Intrusion Level: PC to arrest occupant. What can be searched?

A

Interior of car including appropriate containers

51
Q

Automobile Exception — Justification & Intrusion Level: PC to search for evidence. What can be searched?

A

Entire car including containers where evidence could be found.

52
Q

What qualifies as a stop?

A

1) Must relate to government conduct, not private nor government agent acting in private capacity.
2) Reasonable person would believe not free to leave = “stop,” but no unreasonably protracted delay

53
Q

What justifies a Terry stop and/or frisk?

A

Police must have:

1) Reasonable suspicion (to stop)
2) Reason to think suspect is armed (to frisk)

54
Q

What is “Reasonable Suspicion”?

A

Articulable suspicion, more than a mere hunch, that criminal activity was or was about to be committed.

55
Q

How is RS established?

A

1) Police or eyewitness observance
2) Headlong flight – not just walking quickly away – in high crime area
3) Informants tip coupled with police investigation corroborating the accuracy (not as stringent as for PC)

56
Q

What is the scope of a Terry frisk?

A

A pat down of the outer clothing to determine if the suspect is carrying a weapon, and can take only as long as it is necessary to confirm or deny the suspicion.

If confirmed, blossoms into PC, which can turn into arrest.

57
Q

What is “Plain Feel”?

A

Evidence must be clearly a weapon or contraband

58
Q

Will an improper subjective basis for Terry stop result in a finding that the stop was illegal?

A

No, not as long as the stop was supported by an OBJECTIONABLY reasonable belief that the suspect was engaged ni or about to be engaged in criminal activity.

59
Q

What constitutes “Evanescent evidence,” “Exigent circumstances,” or an “emergency”?

A

A warrantless search may be justified when there is a threat that, if the time is taken to obtain a warrant, the suspect will evade arrest or the evidence will be lost or destroyed (even things in people’s blood or about to be swallowed), or where there is imminent risk to the police or others in the area (hears fighting or responding to a 911 domestic violence call).

HOWEVER, LEO’s cannot create the exigent circumstances, and the procedure must not “shock the conscience” (which violates due process)

60
Q

What are “police checkpoints”?

A

When police set up roadblocks to stop cars without individualized suspicion that the driver has violated the law.

61
Q

When are police checkpoints allowed?

A

When:

1) Cars are stopped on a NEUTRAL, articulable standard (ever nth car) that deprives individual officers of the discretion to select subjects; and
2) The roadblock is designed to serve purposes closely related to protecting the public from an immediate danger (e.g., sobriety checkpoints, searching for recent prison escapees, suspects of a recent crime, or that all the occupants are legal near the border).

62
Q

When are checkpoints NOT allowed?

A

When the primary purpose is general crime control or discover of evidence.

63
Q

Can “checkpoints” be used to check bags of subway passengers after a bomb threat?

A

Yes.

64
Q

What happens to contraband that comes into plain view during a checkpoint stop?

A

It can be seized.

65
Q

Why are warrantless administrative searches allowed at airports and in border searches?

A

Because they are not looking for contraband and are not random.

Crim Pro (4 decks)

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