search and Seizure Flashcards
4th amendment
The right of the people to be secure in their:
1. persons
2. house
3. papers
4. and effects
against unreasonable searches and seizure,
Where do we get our search and seizure laws?
- 4th amendment
- Section 7, Article II of Constitution
of Colorado.
4th amendment rules:
- warrant rule
- probable cause rule
- Reasonableness rule
Privacy definition
reasonable expectation of privacy which society will recognize
how is Reasonableness determined
- balancing the states interest in
conducting a search against the
intrusion into a persons legitimate
expectation of privacy - examining the facts as they existed
at the moment the search was
undertaken
Katz
FBI phone booth
When a person exabits actual subjective expectation of privacy, which society recognizes as being objectively reasonable.
5th amendment
- The right to remain
silent. - The right to
counsel - Privilege against
compulsory self
incrimination - Due process clause
Two types of waived rights
- expressed waiver
- implied waiver
Custody means
- under totality of circumstances
- a reasonable
person in the defendants
position would consider - deprived of his freedom of
action to the degree of a formal
arrest
When does a seizure occur under the 4th amendment
- when a reasonable person
would not have felt free to - leave or otherwise terminate an
encounter with the law
enforcement.
Functional equivalent of interrogation
any words or actions by the police which they should know are reasonably likely to elicit an incriminating response.
exceptions to Miranda
- volunteered or spontaneous statements
- clarifying questions
- routine questions
- spontaneous questions
- questions related to public safety
do you have to speak a single word to be engaged in “interrogation”?
no
actions can be the functional equivalent of questions
are standard booking questions and custodial instructions and inquiries considered interrogation
no
Terry stops implicates what ammendment
4th
when peace officers investigate a ____ or a _______. The peace officer shall electronically record the interrogation.
- class 1/2 felony
- felony sexual assault.
Rules of Interrogation
- Mosley Rule
- Edwards Rule
- Roberson Rule
Mosley Rule
ability to conduct a second interrogation of a person who has exercised his Miranda right to remain silent. If you mirandize them again and they waive their right to stay silent.
Edwards Rule
ability to conduct a second interrogation after a person has exercised his Miranda right to counsel present If you mirandize them again and they waive their right to stay silent.
Shatzer
Break in custody (14) days ends the presumption of involuntariness under Edwards
The Roberson Rule
an accused who is in custody and has invoked the right to counsel cannot be subjected to a police interrogation concerns of a different crime as long as he is in custody.
- UNLESS accused initiates further
communication - once out of jail and not in custody police
can question regarding a separate crime
Difference between 5th and 6th
- 5th= under arrest/in custody AND
questioned/interrogate - 6th= at or after initiation of adversarial
proceedings (Post Arrest):- formally charged, indicted, arraigned,
preliminary hearing, prosecutor has
filed an information.
- formally charged, indicted, arraigned,
Interrogating children Miranda Rights
under age only parent can give consent and it must be written consent from the guardian
Factors Relating to Defendants Condition
- age
- education/intelligence/language
- mental condition insanity and competence
- intoxication from alcohol or drugs
- experience with criminal justice system
