Search and Seizure Flashcards
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3 Elements (Warrant)
1) Who is conducting
Gov official or one under direction of Gov
2) What is a search?
Search (expectation of privacy) x Open field
3) When can they search?
Probable cause = reasonable person could conclude items related to criminal activity can be found @ the location
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Warrants
- neutral and detached magistrate determines probable cause issued Timely
- specific place, items and/or people and scope detailed in Warrant (bound by the warrant – search will be limited by the warrant) –> Except plain sight (than admissible because no search – not expectation of privacy!!)
- Informants tip is ok to rely on as long as reliable **
- If cops rely on info which turns out not to be valid, search is still ok.
When cop finds what he was looking for -> Search MUST STOP!
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Warrant Exceptions
1) Consent
2) Hot Pursuit
3) Auto Exception
4) Exigent Circumstances
5) Search incident to a lawful arrest
6) Protective Sweep
7) Stop and frisk
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Warrant Exceptions
Consent
Consent
Owner of property may consent OR 3rd party who has actual or apparent authority over the premises (i.e. Joint control or shared use of premises)
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Warrant Exceptions
Hot Pursuit
Hot Pursuit
[INCLUDE]
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Warrant Exceptions
Auto Exception
Auto Exception
Probable Cause that the Car has contraband
a. No reason to stop -> NOT ADMISSIBLE
b. Reason to stop -> ADMISSIBLE (but cannot look at close compartment – that would be a search -> NEED A WARRANT; unless additional probable cause)
E.g., Amber alert -> probable cause, cop can search the entire car (stopped the car because a cause)
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Warrant Exceptions
Exigent Circumstances
Exigent Circumstances
Emergency, reasonable belief that evidence may be lost or destroyed (suspect are going to flee or evidence is about to be destroyed)
NEVER INFER
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Warrant Exceptions
Search Incident to a Lawful Arrest
Search incident to a lawful arrest
Cop may search the person/area within ones WINGSPAN (reach)
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Warrant Exceptions
Protective Sweep
Protective Sweep
Allowed if reasonable belief other SUSPECTS are in the house (arrest one guy and search the house if they have reasonable belief other suspects are present)
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Warrant Exceptions
Stop and Frisk
Cops need REASONABLE suspicion that criminal activity is afoot!
MIRANDA
When taken into custody, Miranda rights must be given. When taken into custody and Miranda is given, if defendant asks for Attorney, ALL questions must STOP!!
Rules apply to CUSTODIAL INTERROGATIONS:
CUSTODY + INTERROGATION
CUSTODY - You are in CUSTODY when you are NOT free to leave –Objective standard – Reasonable person standard
INTERROGATION - Cops know or should know actions are reasonably likely to elicit incriminating response.
- If speak voluntarily - MIRANDA does not apply
- WAIVE MIRANDA - o Must be voluntary = totality of circumstances…no duress, coercive behavior, look @ age, education, experience
DOUBLE JEOPARDY
Defendant can’t be tried for same crime twice
1) Has to be TRIAL # 1 in order for rule to apply
If Grand Jury fails to Indict, pretrial hearing, anything that occurs PRIOR to TRIAL STARTING = no double jeopardy
- When does TRIAL # 1 BEGIN?
Attaches in Jury trial – When Jury is impaneled and sworn
Attaches in Non-Jury Trial – When 1st witness is sworn
- Must be final judgment in first case in order for double jeopardy to attach!
So if the prosecution drops the charges or dismisses the case before a jury is sworn, they can later refile the same charges. This is because simply filing charges doesn’t cause jeopardy to attach
1) When does TRIAL # 1 END?
When there is a FINAL JUDGEMENT – on the MERITS
2) After a final judgement, exception is separate SOVEREIGN RULE:
- CAN be tried in another STATE
- CAN be tried in FEDERAL Court
3) ESTOPPEL (Issue Preclusion)
- Prohibits re-litigating an issue of fact or law raised and necessarily resolved by a prior judgment
RIGHT TO JURY TRIAL
Right to impartial jury where imprisonment of more than 6 months is possible
RIGHT TO COUNSEL
- Before Indictment = You have a 5th Amendment right to Counsel
- After Indictment = You have 6th Amendment Right to counsel
- You have Right at all critical stages of proceedings.
Approach to CRIM PRO Questions
APPROACH = Look at Facts as a timeline.
* What was 1st interaction with cops/defendant?
* WHY did the cops stop the car?
* WHY did they enter the house?
DON’T concentrate on what they found! Always look as to WHY were they looking initially!!
