Multi-state + VA distinctions Flashcards
Exclusionary rule
Prevents introduction at a subsequent criminal trial of evidence unlawfully seized
Exclusionary rule DOES NOT APPLY
grand jury
sentencing hearing
bail hearing
federal habeas corpus review
preliminary hearings
revoke parole
impeachment evidence against D
civil proceedings
Suppression decision standard
Factual findings - clear error
Legal findings - de novo
Arrest
Seizure of a person
police uses physical force or show of authority to terminate or restrain freedom of movement
If ambiguous - objective test - reasonable innocent person would believe he is NOT free to leave
Stop and frisk
Terry Stop - requires reasonable suspicion based on articulable facts that detainees involved in illegal activity
temporary detention by show of authority or force to restrain the liberty of a citizen
can “frisk” outside the clothing for weapons - if can identify the object by feel - ok to seize evidence
Warrant
issued by a neutral magistrate based on probable cause and describe with particularity who or what is being seized
Arrest - If probable cause, no warrant needed - so even if warrant is deficient, as long as PC, arrest is lawful - can affect evidence seized during arrest though
Search - place and items need to be described with particularity; must be supported by an oath or affidavit, and must have reasonable belief that contraband will be found
Particularity - “other fruits and instrumentalities” or “evidence of crime at this time unknown” are valid
Facts supporting PC
officer’s personal observation
info from reliable, known or verified unknown informant
evidence seized during stop based on reasonable suspicion
evidence seized that was in plain view
evidence seized during consensual search
Search incident to arrest
Probable cause = lawful arrest + reasonable in scope
Wingspan - places your arm can reach including pockets and containers - NOT laptop or cell phone
Protective sweep
no need for reasonable suspicion or probable cause if lawful arrest inside house - look at areas a person could be hiding
if reasonable suspicion there are people hiding in other places - extends the area of sweep
Vehicle search
stop and frisk - Passenger compartment - reasonable belief suspect is dangerous + may get immediate control of weapons
search incident to arrest - search any area that the arrestee can reach in the passenger compartment for evidence or weapons - reasonable suspicions that evidence of the offense of arrest might be in the vehicle
automobile exception to search warrant - search any part of the car including locked compartments and luggage, IF probable cause that it contains evidence of crime
Exigent Circumstances
TOC test
- have probable cause
- exigent circumstances - public in danger or evidence may be removed
“Hot Pursuit”
“Hot Pursuit” - already in pursuit - have probable cause to believe that the suspect committed a felony - can seize “mere evidence” from private property
“Emergency”
delay in getting warrant would result in immediate danger of evidence destruction, fleeing felon or police/public safety
Warrant authorizing Wiretapping
limited period of time
probable cause that a specific crime has been or is about to be committed
identify person and describe particular conversations to be tapped
when to terminate
reveal intercepted conversation to court
Fruits of the poisonous tree
evidence initially seized as a result of illegal arrest or seach and any subsequent or secondary evidence resulting from the initial taint
Fruits of the poisonous tree EXCEPTIONS
inevitable discovery - same result with lawful means
independent source - unrelated source
attenuation - time or intervening events that break the chain of primary taint
Good faith - relying on facially valid warrant that was later found to be invalid or relying of law that was later held unconstitutional
isolated police negligence
in-court ID - even if out of court was tainted
Harmless error - beyond a reasonable doubt that the error did not contribute to result
5A
no person shall be compelled in criminal case to testify against himself -> extended to states through 14th amendment
5A - self-incrimination
non-testimonial physical evidence - NOT PROTECTED - blood, urine, breathalyzer, etc
both civil and criminal proceedings if D can be incriminated by his own statements in future criminal proceedings
waives privilege by providing self-incriminating answer to questions
Immunity under 5A
fully protects witness form future prosecution for crimes related to testimony - does not extend to other jurisdiction to prosecute the D
5A - police interrogation
incriminating statements during custodial interrogation CANNOT be used against suspect unless police inform subject of Miranda Rights
Custodial - substantial seizure - would a reasonable person believe he could leave? ; Questioning @ police station =/= custodial
Interrogation - questions/words reasonably likely to elicit incriminating responses
“voluntary” confession - statements given by the suspect without an coercion, question or prompt from police is NOT protected
Miranda Rights
Miranda rights must be given BEFORE interrogation, including if there is an extended break, fresh miranda rights must be provided
Does not have to be verbatim but must include these three - right to remain silent, any statement can be used against you in court, and right to an attorney or one will be appointed to you
If deliberately not give Miranda Rights to elicit confession, then immediately give them and ask to repeat again - feels coerced and meant to confuse the suspect - NOT ADMISSIBLE even if second confession AFTER Miranda Rights
While statements are inadmissible - non-testimonial physical evidence recovered because of those statements are admissible
5A - Right to remain silent
MUST INVOKE WITH SPECIFICITY AND UNAMBIGUOUSLY - does not trigger automatically
Right to remain silent - staying silent =/= invoking right; can be overcome if suspect indicates desire to speak AND Miranda Right given again before subsequent interrogation
5A - Right to Counsel
once invoked clearly, ALL interrogation must STOP until counsel is present; can be overcome if suspect voluntarily initiates communication with police - including spontaneous statements OR if more than 14-day break and police gives Miranda Rights again
EXCEPTIONS to 5A Rights to remain silent + right to counsel
Exceptions to 5A rights -
- Public safety
- Routine booking questions
- Undercover police
Waiver of 5A rights
Waiver - burden on gov to prove by preponderance of evidence that waiver was made knowingly and voluntarily
Does not have to be in writing - can be verbal
6A
right to jury, public trial, confront witnesses against him, cross-examine witnesses, be present at his own trial aND assistance of counsel for his defense
6A - Right to counsel - Application + attachment
ANY case in which actual or suspended incarceration is possible
Applies automatically at all critical stages of prosecution after formal criminal proceedings start - no right to counsel post conviction proceedings
Usually attaches at arraignment, but in general
post-arrest initial appearance before judge
formal charge
preliminary hearing
indictment
information
Police have NO obligation to inform D that counsel has been trying to reach him UNLESS 6A attaches
Waiver of 6A - Right to counsel
MUST be voluntary, knowing, and intelligent
If D has not actually asserted his right to counsel - no presumption that subsequent waiver will be involuntary
If D did assert his right to counsel - presumption that subsequent waiver will be involuntary
6A - Right to proceed per se
D can represent himself; court has duty to warn D of consequences and risks of doing so - may have a stand-by counsel ready
D can be competent to stand trial but NOT competent to represent himself
6A - Blockburger test - are crimes the same?
two diff crimes in one criminal transaction deemed to be “same offense” UNLESS each offense requires proof of an element that the other does not
lesser induced crime is same as greater induced crime - if stood trial for either, double jeopardy to try for either again
BOTH crimes need to have AT LEAST one element that needs to be proven that the other does NOT have
6A - Remedies for denial of counsel
effect on conviction - automatically reversed even without specific showing of unfairness
effect on guilty plea - right to withdraw it and it cannot be used against him as an admission
non-trial proceeding - harmless error analysis
D’s statement to informants - post-indictment statement ok if informant just listen -> if coerced or placed in situation that is likely to induce incriminating statement then inadmissible
fruit of the poisonous tree - applies to statements and physical evidence obtained as result of violation - inadmissible
impeachment - incriminating evidence obtained in violation of 6A may be used for impeachment
