Rules - Themis Flashcards
What is a fly over, and does it constitute a search for the Fourth Amendment?
A fly-over is an inspection conducted from at least 400 feet in the air by an airplane or a helicopter. It does not violate a reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth Amendment.
When does the Sixth Amendment right to counsel attach, and to what stages of what prosecutions does it apply?
The right automatically attaches and applies at all critical stages of a prosecution, after formal proceedings have begun. It applies only in cases in which the defendant is sentenced to incarceration, even if that sentence is suspended, and applies only to the specific offense at issue in those proceedings.
Note: The right does not apply to post-conviction proceedings, but direct appeals as a matter of right do require that the state provide counsel to the indigent on equal protection grounds.
Does a hotel patron have an expectation of privacy in the rented room?
As with the search of a home, the search of a motel room by a government agent may be an unreasonable search. The patron enjoys a reasonable expectation of privacy for the duration of the rental agreement.
Note: A motel clerk’s consent to a governmental search of a room during the time it is rented is insufficient to justify the search.
When are the fruits of a non-Mirandized confession admissible?
Derivative physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced.
What is an inventory search?
Inventory searches are administrative-type searches of items in official custody, such as impounded vehicles. After lawfully taking custody of property, police may conduct a warrantless search of other property to protect the owner’s property while in custody, to protect police from claims of theft, and to protect officers from danger.
Note: Inventory searches must be performed according to standardized criteria and procedures. Subjective intent of the officer is irrelevant.
What is a terry stop and when is it justified?
A stop (i.e., Terry stop) is limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest.
A stop is justified on the reasonable suspicion, based upon articulable facts and the totality of the circumstances, that the detainees are or were involved in criminal activity.
How many jurors are required to render a verdict?
A jury of less than six members is a denial of due process, and a unanimous verdict is constitutionally required if a jury is made up of only six members. For state-court juries of seven or more, the vote need not be unanimous, but there is no strict rule as to how many votes are required for conviction.
Note: The Federal Rules of Criminal Procedure require a unanimous vote by a 12-member jury in federal criminal trials, unless waived in writing and approved by the court. A verdict by 11 jurors is permitted if the 12th juror is excused for good cause after deliberations begin.
What constitutes an unreasonable search for purposes of the 4th amendment?
An unreasonable search occurs when the government:
(1) invades a place protected by a reasonable expectation of privacy, or
(2) physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information.
When is a search of an automobile permitted as an exception to the search warrant requirement?
When police have probable cause, they may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers.
Note: Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for.
What is required for a defendant to have standing to challenge governmental conduct as a violation of the 4th amendment protection against unreasonable searches and seizures?
(i) The defendant himself has been seized; or
(ii) He has a reasonable expectation of privacy with regard to the place searched or the item seized.
Note: It is not enough that the introduction as evidence of an item seized may incriminate the defendant.
What must a defendant show in order to attack the truthfulness of an affidavit supporting a facially valid search warrant?
The defendant must establish, by a preponderance of the evidence, that:
(i) The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and
(ii) The false statements were necessary to the finding of probable cause.
When searching jointly controlled property subject to consent, what is the difference between when a defendant is not present and when the defendant is present?
If the property to be searched is under the joint control of the defendant and a third party, and the defendant is not present at the time of the search, then the third party has authority to consent. The third party has actual authority when she has joint access or control for most purposes.
When the property to be searched is under the joint control of the defendant and a third party, and the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search.
When the defendant is not present, however, a third party may consent to a search even if the defendant previously was present and objected to a search at that time.
When does the 6th amendment right to counsel apply to eyewitness IDs?
A defendant is entitled to have counsel present at any post-indictment lineup or show-up in which the defendant is required to participate. The right to counsel does not apply to any pre-indictment lineup or to non-corporeal identifications (e.g., photo arrays)
When are presumptions constitutionally permitted in criminal trials, and when are they unconstitutional?
A permissive presumption regarding an element of an offense does not violate due process unless the presumption is irrational (i.e., it is more likely than not to flow from the proven fact on which it depends).
A mandatory presumption regarding an element of an offense violates the due-process requirement.
What are (1) transactional immunity, and (2) use and derivative use immunity?
(1) “Transactional” (i.e., “blanket” or “total”) immunity fully protects a witness from future prosecution for crimes related to her testimony.
(2) “Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness.
Note: “Use and derivative-use” immunity is all that is constitutionally required to compel the testimony of a witness, and testimony encouraged by a promise of immunity is considered coerced and involuntary.
What are the seven exceptions to the exclusionary rule?
(1) Inevitable discovery rule - the evidence would have been inevitably discovered in the same condition through lawful means
(2) Independent source doctrine - the evidence was discovered in part by an independent source unrelated to the tainted evidence.
(3) Attenuation principle - the chain of causation between the primary taint and the evidence has been so attenuated, by time and/or intervening events, as to “purge” the taint.
(4) Good-faith exception - police officers acted in good faith on either a facially valid warrant or an existing law later declared unconstitutional.
(5) Isolated police negligence - the police conduct was not sufficiently deliberate such that the exclusionary rule could deter it.
(6) Knock and Announce - the search was a violation of the “knock and announce” rule.
(7) In-court Identification - the evidence is a witness’s in-court identification of the defendant.
How is the privilege against self incrimination invoked?
By defendant: Privilege invoked by refusing to take the stand.
By non-defendant witnesses: May be compelled to take the stand and can invoke the privilege only in response to a specific question when there is some reasonable possibility that answering the question will incriminate the witness.
Are searches conducted by private citizens prohibited by the 4th amendment?
No, the Fourth Amendment applies to government action, not searches made by private citizens.
The police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct a search of a suspect or areas in which the suspect has a reasonable expectation of privacy.
How can the 6th amendment right to counsel be waived?
The Sixth Amendment right to counsel can be waived so long as relinquishment of the right is voluntary, knowing, and intelligent.
What is curtilage and why is it so important?
In addition to the home itself, an area immediately surrounding the home known as the “curtilage” may be covered by the “umbrella” of the home’s Fourth Amendment protection.
In determining whether the area is protected, the following four-factor test applies:
i) The proximity of the area to the home; ii) Whether the area is included within an enclosure surrounding the home; iii) The nature of the uses to which the area is put; and iv) The steps taken by the resident to protect the area from observation by passersby.
When/where are police officers permitted to make warrantless arrests?
(i) In public places;
(ii) For crimes occurring in the arresting party’s presence; or
(iii) If the officer has probable cause to believe the arrested party has committed a felony.
Note: An unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is not a defense to the crime charged.
What is the court required to find in order to accept a criminal defendant’s guilty plea?
The judge must determine that the plea is both intelligent and voluntary.
Voluntary: The plea did not result from force or improper threats or from promises other than those contained in the plea agreement.
Intelligent: The defendant knows and understands (i) the nature of the charges and their essential elements, (ii) the consequences of the plea, and (iii) the rights that the defendant is waiving.
Custody for the purposes of Miranda
Custody is either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. If there has been no formal arrest, the question is whether a reasonable person would have believed he could leave, given the totality of the circumstances.
What is the effect of the plain view doctrine on items (1) in public view, and (2) in private view?
(1) Items may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public.
(2) Police may seize the item as long as (i) the officer is lawfully on the premises, (ii) the incriminating character of the item is immediately apparent, and (iii) the officer has lawful access to the item.
Does an overnight guest have an expectation of privacy in the home?
An overnight guest does have a reasonable expectation of privacy, at least as to the areas of the home to which the guest has permission to enter.
What are the three protections provided by the 5th amendment double jeopardy clause?
(i) Protection against a second prosecution for the same offense after acquittal;
(ii) Protection against a second prosecution for the same offense after conviction; and
(iii) Protection against multiple punishments for the same offense.
