Test 3 - Packet Definitions

Question 1

1. Courts created remedy for violations of 4, 5, or 6, Amendments
2. Evidence obtained by an illegal search or seizure is no admissible in criminal proceedings (state or fed. courts) as poor of guilt.
3. It’s purpose? To deter govt. agents from violating people’s constitutional rights. thus it only applies to searches by govt. officials and not private people. (security guards - applies to them if they are off duty cops)

exclusionary rule

Answer 1

A. Principle

Question 2

1. Weeks v. US (1914) Rule applies to federal agents and federal courts
2. Silver Platter Problem - fed folks got state friends to search and seize ilelgally and hand the fed folks any evidence they found for use in court since not gotten by federal agents.
3. Mapp v. Ohio (1961) Ended silver platter problem as now state agents and state courts couldn’t allow the evidence either.

exclusionary rule

Answer 2

B. Application

Question 3

All evidence illegally obtained must be excluded. Also, the use of other evidence that has been acquired directly or indirectly as a result of an illegal search or arrest is not allowed either. (Fruit of the poisonous tree)

exclusionary rule

Answer 3

C. Scope

Question 4

1. For: a. Judicial Integrity - to keep the courts from becoming accomplices in the willful disobedience of the Consitution they are sworn to uphold. b. as a /deterrent/ to officers for future violations by removing incentives to disregard it
2. Against: a. States’ Rights - the rule is just one remedy and only a court created one. Therefore, it should not be imposed upon the states. The states should be free to choose any remedy. (examples: civil action, criminal action, admin actions) b. Large cost of the rule. “The criminal goes free because the constable blundered”

exclusionary rule

Answer 4

Arguments

Question 5

Where the rule does not apply.

exclusionary Rule

Answer 5

1. Before trial proceedings (grand juries, preliminary hearings, bail)
2. After trial (sentencing, parole hearings)
3. Civil cases
4. Admin agency hearings

Example: U.S> vs Calandra Witness was called to testify before a grand jury. He refused to answer the grand jury’s questions, claiming they were based on evidence obtained from an unlawful search and seizure. The Supreme Court found that application of the exclusionary rule here would impede the functioning of the grand jury (whose job is merely to detemine whether charges should be brought), while any added deterrent effect would be minimal at best because the unconstitutionally seized evidence could not be used at trial anyway. Thus, the Supreme Court refused to extend the exclusionary rule here.

Question 6

would have discovered the evidence regardless of the illegal conduct (EX - illegal confession, but already searching woods and just a matter of time before police line would reach spot anyway) Nix v Williams

Dissipataion (removal) of the traint

Answer 6

Inevitable Discovery

Question 7

got evidence from an independent, untainted source not connected to the illegal activity (EX - if police discover evidence during illegal search, but later discover the same evidence during a valid search, the evidence is admissible, provided the second search was totally independent from the frist.) Murray v U.S.

Answer 7

Independent Source

Question 8

Wong Sun v. US (Intervening act of free will) - D Was released after being illegally arrested. He later returned to the station and confessed. Called intervening act of free will and confession was considered not closely related to the illegal arrest. 1.Time elapsed, 2. There were intervening circumstances (he was read his Miranda Rights), 3. Purpose and flagrancy of offical conduct lessened (as soon as officers realized their mistake, he was released from the station)

exclusionary rule

Answer 8

Exception - Purged Taint

Question 9

when police seized the defendant improperly and used the seizure to assist in identification of the victim, courts need not exclude the evidence

Exclusionary Rule

Answer 9

Identitication exception

Question 10

ill-gotten evidence cannot be used to determine guilt or innocence, but if defendant takes the witness stand, it can be used to impeach the defendant’s credibility.

exclusionary rule

Answer 10

Impeachment exception

EX: Harris v N.Y. - police questioned D without informing him of his constitutional rights as required, and D confesses to selling heroin on two occasions. At trial, D denied making one of the sales. The prosecution was allowed to introduce D’s confession to impeach his testimony. The Supreme Court reasoned that the exclusionary rule should not “be construed to inlcude the right to commit perjury”

Caution - doesn’t apply confessions that were coerced (force or threats - involuntary confessions) There confessions are not admissible for any purpose. Also, if someone is immunized, the person’s testimony cannot be used against them at trial.

Question 11

if the state provided the defendant with a full and fair hearing of an unreasonable search and seizure claim, the defendant cannot raise the exclusionary question again later in some federal habeas corupus proceeding Stone v Powell

exclusionary rule

Answer 11

Post-Conviction Federal Habeas Corpus Proceeding

Question 12

if person, acting independently of police direction, violates a person’s Fourth or Fitfth Amendment rights, the court will not exclude the private party’s evidence

exclusionary rule

Answer 12

Private Party Searches

Question 13

Exclusionary rule does not apply where police act on an objectively reasonable belief that their conduct is not violating a defendant’s rights. (Police requested a warrant and put down what they had for probable cause. They were not sure if it was enough, but the magistrate, judge’s assissant, decided there was probable cause and gave the officers a warrant. At trial the judge concluded there was not probable cause and the warrant should not have been issued. (cont.)

exclusionary rule

Answer 13

Good Faith Exception - US v. Leon

Question 14

where the search does not violate the constitution but only violates the internal working rules of an agency, no exclusion. Same if only state law is violated.

exclusionary rule

Answer 14

Agency Rule/State Law Exception

EXAMPLE: Virinia v Moore, Police arrest D for dirivng on a suspended license, searched him, and found cocaine on his person. Under state law, arrest was not authorized for dirivng on a suspended license and D moved to supress the evidence found during the search. The Ct held, since it is constintuiaonlly reasonably for police to arrest a person if the police have probable cause to believe that the person has committed even a misdemeanor in their presence and the police here had probable cause to believe that D committed the offence of driving on a suspended license. D’s arrest was constitutionally reasonable and thus, did not violate the fourth Amendment, regardless of state law.

Question 15

Civil Cases?

exclusionary rule

Answer 15

the rule does not apply here.

Question 16

grand jury witnesses may not refuse to answer questions based on illegally seized evidence - Calandra. However, a grand jury witness may refuse to answer questions based on evidence obtained in violation of the federal wiretapping statue - Gelbard v U.S.

exclusionary rule

Answer 16

Grand Jury Proceedings

Question 17

Parole Revocation Proceedings Exception

exclusionary rule

Answer 17

Rule does not apply

Question 18

Knock and Announce Rule Violation

exclusionary rule

Answer 18

Exclusion of evidence is not an available remedy for violations of the knock and announce rule pertaining to the execution of a search warrant hudson v michigan

Question 19

just ill-gotten evidence is kept out. Person can be tried and convicted if enough other evidence exists. On appeal - new trial is ordered unless court determines just harmless error or defendant failed to object to the evidence’s use.

exclusionary rule

Answer 19

Effect of Exclusionary Rule

Question 20

The judge decides, by a preponderance of the evidence, whether the evidence was constitutionally obtained. At the hearing, the defendant may testify, and that testimony may not be used at trial to prove guilt. These hearings are not in the presence of the jury.

exclusionary rule

Answer 20

Enforcement - Suppression hearing - Omnibus Hearing

Question 21

4th Amendment provides that no warrant, search or arrest, shall be issued unless there is probable cause. For probable cause, an officier needs trustworthy evidence that would make a reasonable person think it more likely than not that the proposed arrest or search is justified

probable cause

Answer 21

probable cause - generally

Question 22

a. A crime has or is being committed
b. the specific items to be seized are connected to criminal activity
c. the items will be found in the place to be searched

probable cause

Answer 22

Probably Cause to Arrest

Question 23

a. crime has or is being committed
b. the specific items to be seized are connected to criminal activity
c. the items will be found in the place to be searched

probable cause

Answer 23

Probably Cause to Search

note: any trustworthy information can be used, even if it would not be admitted at trial
-only information in writing to the magistrate will be used

Question 24

if police erroneously, but reasonably, believe the information given to the magistrate is true, and it later proves to be false, the warrant will be valid

probable cause

Answer 24

Good Faith

Question 25

The arresting/detaining state officer may be liable under 42 U.S.C. section 1983 for violating a person’s federal constitutional rights. The act allows people to sue the officer as well as their dept. in state or fed. court.

probable cause

EXAMPLES: Excessive force, search and seizure problems, fabrication of evidence, false arrest and malicious prosecution
Point: Always act with good faith and awareness of constitutional rights. Remember, dumb cop, who does not know the rules, it not acting in good faith. Good faith requires a knowledge of the law and reasonable attempts to follow that law.

Answer 25

Lack of Good Faith - Unreasonable Mistakes

Question 26

evidence from the officer’s own observation

probable cause

EX: Flight when approached by officers, physical clues - footprints, fingerprints, etc. Lying to police, suspicious conduct if the officer can articulate what aroused the suspicions, prior criminal record, presence in a high crime area, association with known criminals, silence or failing to protest when accused.

Answer 26

Particular Information to Establish probably Cause

Question 27

Often not the most trustworthy so, two tests were developed

probable cause - Information from Informers

Answer 27

Criminal Informers
(Aguilar/Spinelli Test & Gates Test)

Question 28

1. This test must establish both parts
   a. CREDIBILITY/RELIABILITY PRONG - Why is the informer reliable? Ex - used before and good track record. Statements against a person’s interest
   b. BASIS OF KNOWLEDGE PRONG - How informer came by the info? Lots of detail, first hand v. heard from x. (Then have to establish both prongs for x)
   The Point? Both prongs were independent and both had to be establish. This test was real tough and lots of tips were lost (anonymous tips were useless)

probable cause - Information from Informers

Answer 28

Aguilar/Spinelli Test

Question 29

Totality of the Circumstance Test
a. Feds and many states shifted to this test in ‘83. However, some states stayed with the A/S test.
b. Still look at the two prongs, but can consider other things if they help to establish reliability. Also, if real strong in one prong, other can be weak or absent.

probable cause - Information from Informers

Answer 29

Gates Test

Question 30

assume reliable

probable cause - Information from Informers

Answer 30

Non-criminal informers

generally an informer’s identity does not have to be revealed

Question 31

Orginally analyzed in 4th amendment searches on the basis of whether the place searched was a place protected by the 4th amendment (Olmstead Case)

probable cause

Answer 31

Privacy

Question 32

1967 case. The supreme Court said the 4th amendment protects PEOPLE and not just places. Now to decide if private and need a warrant, a two-part test is also used.

privacy

Answer 32

KATZ case

Question 33

Two Step Test

privacy

Answer 33

1. Subjective - did the person believe the conversation was private, and
2. Objective - whether the expectation of privacy is one society is willing to recognize. After US v Jones, the Court held that both areas that are constitutionally protected and other places where an expectation of privacy might exist must be analyzed

EX: conversation in a public phone booth (not phone in a house) are private and need a warrant to tap if expectation of privacy in these situations

Question 34

person didn’t attempt to keep communication private (reckless - talked real loiud into phone, didn’t close door)

privacy

Answer 34

Uninvited Ear

Question 35

defendant assumes the risk that the person he is talking to is unreliable - will consent ot the governemnt monitoring of the conversations (ex - wired informer)

privacy

Answer 35

unreliable ear

Question 36

4th Amendment is a complex sentence of two parts;

Reasonableness

Answer 36

Reasonable Clause - All searches and seizures should be reasonable
Requirements Clause - Explains how to get a valid waarant.

Point: Which clause governs? Supreme Court says first one governs, Thus not all warrantless searches and seizures are barred.

Question 37

taking a perosn into custody against his or her will (sometimes add: “for the purpose of criminal prosecution or interrogation”) Arrest is governed by the Fourth Amendment

reasonableness

Answer 37

Defintion of Arrest

Question 38

Any government intrusion upon a person’s reasonable and justifiable expectation of privacy

reasonableness

Answer 38

Search

Question 39

An exercise of control by the government over a person or thing. When someone is arrest, they are seized. Thus, Fourth Amendment governs arrests of people as well as seizures of things.

Reasonableness

Answer 39

Seizure

Question 40

Whether the seizure of a person is reasonable depends on the scope of the seizure (arrest v detention) and the strength of the suspicion prompting the seizure (probable cause v. reasonable suspicion)

Answer 40

Reasonableness

Question 41

1. officer intents to arrest
2. comes from real or presumed authority to do so,
3. actual (physical) or constructive (submission to an officer’s show of force/authority) seizure of the person
4. communication by the officer that a person is under arrest, and the understanding of the person that they are under arrest

reasonableness

Answer 41

Elements of a Formal Arrest (with or without a warrant)

Question 42

Police hhave the authority to detain a perosn briefly for questioning even without probable cause to believe that the person committed a crime. It is not an arrest but a detention

It is valid if three factors are met
1. observe unusal conduct
2. leading to a reasonable suspicion that criminal activity may be afoot
3. the officer’s ability (at the time in field notes to point to specific and articulable facts to justify that suspicion)

Answer 42

Stop and Frisk (Terry v. Ohio)

Question 43

Less than probable cause, but more than mere/vague suspicion. To be reasonable, the suspicion must be based on objective articulable facts (not conclusions like “the person acted suspiciously”)

Answer 43

Reasonable Suspicion

Question 44

An investigatory stop must be temporary and no longer than necessary to satisfy or dispel suspicions.

Example: removal of a detainee without his consent from a public area in an airport to a police room in the airport while keeping his license and airline ticket converted a stop into a seizure. Fla v. Royer

Answer 44

Scope and Duration

Question 45

Separate rationale from a stop. Not all stops lead to this, an officer may pat down a person’s outer clothing for weapons, provided the officer has a reasonable suspicion that the perosn is armed and dangerous.

Answer 45

Frisk

Question 46

It’s okay, but must fit the rational of a frisk to pat down a person on the premises of a place officer have warrant to search

Answer 46

Detention during the execution of a lawful search warrant

Question 47

No arrest or seizure/detention occurs when an officer simply approaches a person in a public place and asks them if they would willing to answer questions. However, watch out for things like command voice, hands on hip by weapon, blocking the person’s path. This activity can turn the sitution into a detention where reasonable suspicion is needed.

Answer 47

Just ask a question

Question 48

This is the favored method by the court to make an arrest because the officer’s probable cause is reviewed by another, Officers also like working under this as it gives them more civil liability protection.

Answer 48

Arresting Under a Warrant

Question 49

Written order, based on probable cause, issued by a magistrate (judge’s assistant) telling officers to arrest a particular person

Answer 49

Arrest Warrant

Question 50

Written order telling the person to appear in court at a stated day and time. Officers do not bring the person in with this. They only deliver it.

Answer 50

Summons

Question 51

taking a person from a public place

Answer 51

Arrest without a warrant