CRIM. PRO.

Question 1

4th Amendment

Answer 1

Protects against unreasonable searches and seizures by the government in areas in which a party has a reasonable expectation of privacy.

Searches and seizures typically require a warrant supported by probable cause, however, many exceptions apply.

Absent an exception, an evidentiary search or seizure without a warrant is unlawful.

Question 2

Seizure of a Person

Answer 2

When a reasonable person in the ∆’s position would not feel free to leave or terminate the encounter with a government officer, they have been “seized” in terms of the 4th Amendment. Whether or not someone is seized is based on the totality of the circumstances, including a showing or physical force or authority.

The brief seizure of a person is lawful without a warrant if it is the result of a Terry stop conducted with reasonable suspicion, or an arrest with probable cause.

Question 3

“Reasonable Suspicion”

Answer 3

More than just a “mere hunch”. There must be a belief based on articulable facts that a suspect has or is about to engage in criminal activity.

The presence of reasonable suspicion will justify a terry stop or cursory protective sweep of a suspect, aka, a “terry frisk”.

Question 4

Probable Cause

Answer 4

A “fair probability” that the subject of the investigation committed a crime or that evidence of criminal activity can be found at a location.

Probable cause is required for searches and arrests.

Question 5

Terry Stop

Answer 5

A “brief investigatory seizure” of a person for the time necessary to confirm or dispel the officer’s reasonable suspicion that a crime has or will occur.

A terry stop requires reasonable suspicion that a crime has or will occur based on articulable facts.

During a terry stop, an officer may pat for weapons for safety purposes, but not for the purpose of collecting evidence. However, if during a “terry frisk”, the officer has reasonable suspicion that the suspect is armed or has contraband in their pockets, it can be seized.

If the reasonable suspicion is confirmed and turned into probable cause, then the officer can arrest and conduct a search incident to arrest.

Question 6

Terry Stop - “Reasonable Suspicion”

Answer 6

An officer must have more than a mere hunch that a crime was committed or is about to be committed in order to conduct a terry stop. This reasonable suspicion can be established by police or eyewitness observation, flight from police, or an informant tip that is then corroborated by police.

Question 7

“Search” Definition Under the 4th Amendment

Answer 7

The government’s intrusion into one’s “reasonable expectation of privacy”.

The reasonable expectation of privacy must be both subjective (the suspect has actively tried to shield their property from the public), and objective (a reasonable person in society would recognize that property as private).

Items/places that are not protected by the reasonable expectation of privacy include things open to the public such as handwriting, voice, bank/phone records, trash/discarded property, or open fields.

Question 8

Seizure of Property

Answer 8

When the government takes action that results in a meaningful interference with a possessory interest.

A warrant based on probable cause is presumptively required to seize property.

A warrant is not required to seize property that is in plain view, as long as the government was in a lawful vantage point in viewing it, the property is contraband, and the officer has lawful access to the item.

Question 9

Sensory Enhancing Devices

Answer 9

If the device is generally available/accessible to the public, the use of said device is not considered a search and thus the 4th Amendment is not implicated.

If the device is specialized/tactical, like a heat sensor, it is a search, and the government would need a warrant unless an exception applied.

Question 10

Open Fields Doctrine

Answer 10

There is no reasonable expectation of privacy in an open field, and therefore they are not constitutionally protected under the 4th Amendment.

Question 11

When is a warrant NOT required to seize property?

Answer 11

• When there is probable cause to arrest in public for a felony or a misdemeanor committed in the officer’s presence.
• When reasonable suspicion exists for a terry stop.
• To seize property under the plain view doctrine.

Question 12

Plain View Doctrine

Answer 12

A warrant is not required to seize evidence in plain view, as long as the officers viewed the property from a lawful vantage point, the item seized was reasonably contraband, and the officer has lawful access to the point of seizure.

Question 13

When is a search not “reasonable” under the 4th Amendment, even if there is a warrant?

Answer 13

A valid warrant creates a presumption of reasonableness, but a search with a warrant can still be unreasonable if —
- The warrant was “stale” = not executed within 10 days in GA.
- The officers did not knock and announce (although this will not exclude evidence obtained as a result).
- The officers seized property outside of the scope of the warrant.

Question 14

Validity of a Warrant

Answer 14

A valid warrant must be issued by a neutral and detached magistrate, must be supported by probable cause under oath or affirmation, and must state with specificity the property to be seized and searched.

Under the good faith exception, an invalid warrant will not exclude evidence unless it was so lacking in probable cause that no rookie officer would have believed its validity.

Question 15

Warrant Exceptions

Answer 15

A search and seizure without a valid warrant is unreasonable unless it falls under an exception — ESCAPSS

Exigent circumstances.
Search incident to lawful arrest.
Consent or third party consent.
Automobile/administrative searches.
Plain view doctrine.
Special needs doctrine.
Stop and frisk (Terry).

Question 16

Exigent Circumstances

Answer 16

Warrantless search is permissible if waiting for a warrant would result in imminent destruction of evidence, escape, or risk to the police or others. (“Safety, spoliation, or hot pursuit”)

• Includes evidence in or on the ∆’s body if it is likely to be destroyed or disappear before a warrant could be obtained, as long as the means of retrieving it do not shock the conscious.
• Includes hot pursuit — the police can enter a private home if a suspected felon has entered it during flight. While inside, the police can seize any contraband in plain view.

Question 17

Hot Pursuit

Answer 17

An evidentiary search or seizure without a valid warrant is unreasonable under the 4th Amendment.

However, if the police are in hot pursuit of a person that the police have probable cause of committing a felony, exigent circumstances arise that allow the police to enter property without a warrant.

While there, the police can seize any contraband in plain view.

Question 18

Search Incident to a Lawful Arrest

Answer 18

Upon a lawful arrest supported by probable cause, a contemporaneous search can be made of the ∆ and the area within their immediate control (their wingspan or lunging distance). This includes inside pockets, containers, or adjoining rooms.

If the suspect was arrested in the home, the police cannot search the entire house, but can sweep the house if there is reasonable suspicion of other people in the home who would put officers at risk.

If the suspect was arrest in the car, the police can search within reach of the ∆ if they are still within genuine access of it. If the ∆ is outside of genuine access of the vehicle, then the police can search the car only if they have reasonable belief that evidence of the crime that they are being arrested for is inside the car.

Question 19

Search Incident to a Lawful Arrest (Vehicle)

Answer 19

When a subject is lawfully arrested with probable cause while in their car, the police may search the ∆ (including pockets) and the area within their wingspan/lunging distance (including containers).

If the arrestee remains within genuine access to the vehicle, the police can search the entire car and containers.

If the arrestee has no genuine access to the vehicle (on the ground or in the police car), police can only search if there is a reasonable belief that evidence of the crime being arrested for is inside.

Question 20

Consent to Search/Third Party Consent

Answer 20

∆ can waive their 4th Amendment rights and consent to a search even if the search would otherwise be unreasonable. Must be voluntary and not obtained by a fake warrant/duress/fraud/threat. However, the police don’t have to educate a suspect on their right to deny consent.

Police can only search within the scope of the consent.

Any 3rd party with “apparent authority/control” can consent as long as the ∆ is not present and objecting.

Any 3rd party with shared/joint use can only consent to search of common areas, not spaces exclusive to ∆.

Question 21

Automobile Exception

Answer 21

Due to the increased mobility and decreased expectation of privacy in automobiles, police can search any part of a car without a warrant as long as they have PROBABLE CAUSE.

Question 22

Administrative Searches

Answer 22

Searches conducted for a non-criminal purpose do not require a warrant, for example, TSA, jail intake, schools, agency compliance, etc.

Question 23

Special Needs Doctrine

Answer 23

Police can use checkpoints to conduct searched without a warrant or reasonable suspicion as long as it is to protect the public from immediate danger. They can then seize contraband in plain view.

Question 24

5th Amendment

Answer 24

No person shall be compelled in a criminal case to be a witness against themselves.

Under the 5th Amendment, law enforcement is required to read the ∆’s Miranda rights upon “custodial interrogation.”

Statements made in custodial interrogation are inadmissible in the prosecutions case-in-chief (but can be used to impeach) in the absence of Miranda + a valid waiver.

Waiver of Miranda rights must be knowing and voluntary.

Invocation of Miranda rights must be unequivocal and unambiguous. Once invoked, interrogation must stop.

Question 25

Involuntary Statements

Answer 25

Involuntary statements are inadmissible for any purposes in violation of the 5th and 14th Amendment Due Process clauses.

A statement is involuntary if it results from coercive conduct by law enforcement that essentially “overbears the free will” of the ∆.

Voluntariness is considered by a totality of the circumstances, taking into account the length of time detained, the location, tactics being used by law enforcement, and the ∆’s age/health/education.

Question 26

Miranda Rule

Answer 26

Custody + interrogation triggers the Miranda rights under the 5th Amendment. These rights include the right to remain silent and the right to counsel.

Statements made without a reading of Miranda and a waiver are inadmissible in the prosecution’s case in chief (but not to impeachment), however, the physical fruits of the statement are not excluded.

Once a ∆ unequivocally and unambiguously invokes their Miranda rights, the interrogation must stop until counsel is present or a significant amount of time passes and a new waiver is obtained.

Miranda rights are not required to be read if questions are intended to protect public safety/address an ongoing emergency.

Question 27

Custodial Interrogation Definition

Answer 27

Custody — If a reasonable person would believe that their freedoms had been limited or a formal arrest is made.

Interrogation — Any attempt by law enforcement to elicit an incriminating response.

Spontaneous/volunteered statements do not implicate Miranda since they are not elicited/result from interrogation!!

Question 28

Invocation of Miranda

Answer 28

Must be unequivocal and unambiguous.

After invocation, interrogation must immediately stop.

Can reinitiate questioning after a significant amount of time, after counsel is present, or if the ∆ re-initiates contact with a new waiver.

Question 29

6th Amendment

Answer 29

The 6th Amendment right to counsel automatically attaches upon the beginning of the formal adversarial process, requiring counsel to be present at all critical stages of the prosecution.

Any statements obtained by law enforcement once the right attaches is inadmissible unless counsel is present or the ∆ executed a knowing and voluntary waiver.

Applies to the prosecution of felonies or misdemeanors, when jail time could be imposed.

Question 30

Identification Procedures (Lineup/Photo Arrays)

Answer 30

An identification violates due process and is inadmissible if it is unnecessarily suggestive. Even if an identification is unnecessarily suggestive, however, it may still be admissible if it is reliable based on a totality of the circumstances.

A court will consider the *witness’s opportunity to view the ∆ at the scene, the accuracy of the witness’s description, the degree of certainty of the witness, and the time between when the crime was committed and when the ∆ was ID’ed. *

If the lineup is inadmissible, a subsequent in-court witness ID is also prohibited.

The 6th Amendment right to counsel only attaches to post-indictment, in-person identifications (not photo arrays or IDs before charges brought).

Question 31

Exclusionary Rule

Answer 31

Evidence obtained in violation of the 4th, 5th, or 6th Amendments, either directly or derivatively will be prohibited from being introduced at trial as long as the ∆ has standing and an exception does not apply.

Question 32

Exclusionary Rule Exceptions

Answer 32

• A violation of Miranda may be used to impeach.
• Independent Source Rule: If the evidence could be corroborated/found by an independent source.
• Inevitable Source Doctrine: If the discovery of the evidence was inevitable.
• If the violation was too attenuated from the discovery of the evidence.
• If the evidence is being used to impeach.
• NO good faith exception in Georgia, only federal.

Question 33

Fruit of the Poisonous Tree

Answer 33

Any evidence derived from an initial violation will also be excluded, barring an exception, as “fruit of the poisonous tree”.