1
Q
exclusionary rule
A
- prevents introduction at a subsequent criminal trial of evidence unlawfully seized
- suppression decisions made by a judge; factual findings are reviewed for clear error while findings of law are reviewed de novo
2
Q
government conduct
A
publicly paid police, private person directed by police, or deputized private police
3
Q
arrest
A
unreasonable seizure of persons
4
Q
seizure
A
when police, by means of physical force/show of authority, intend to terminate/restrain freedom of movement
5
Q
analysis in determining seizure
A
totality of circumstances
- if police intent to restrain is ambiguous, or
- if def’s submission is only passive acquiescence:
then a seizure occurs if totality of circumstances would lead reasonable innocent person to believe he is not free to leave
6
Q
stop and frisk
A
temporary detention that constitutes seizure if the officer, by means of physical force/show of authority, has in some way restrained (physical restraint or an order to stop) the liberty of a citizen
7
Q
arrest warrant
A
must be issued by detached/neutral magistrate upon finding of probable cause and describe with particularity the def and crime
- deficient warrant does not invalidate arrest as long as there was PC (no warrant required for proper arrest based on PC)
8
Q
search warrant
A
(i) issue by detached/neutral magistrate
(ii) upon finding of PC
(iii) supported by oath or affidavit
(iv) must describe with particularity places to be searched and items to be seized (reasonable belief that contraband will be found)
9
Q
facts supporting probable cause for a warrant
A
- officer’s personal observations
- information from reliable, known informant or verified unknown informant
- evidence seized during stop and based on reasonable suspicion, discovered in plain view, or during consensual search
10
Q
particularity for warrants
A
- must specify place to be searched and objects to be seized
- can also refer to contraband as “other fruits, instrumentalities, or evidence of crime at this time unknown” and still be valid
11
Q
knock & announce rule
A
police must generally announce purpose when executing a warrant (unless state allows exception for exigent circumstances)
- violation does not trigger exclusionary rule
12
Q
warrantless arrests
A
- warrant not needed in public place or for felony or misdemeanor in arresting party’s presence, but invalid arrest alone not a defense to crime charged (but will affect seizure of evidence)
- in determining whether a crime has been committed: whether an officer could conclude–considering all of the surrounding circumstances–that there was a substantial chance of criminal activity
13
Q
reasonable expectation of privacy (REP) for home, private room, or office
A
home and curtilage, motel rooms, and business premises are protected; use of drug-sniffing dog is a search if physically intrudes onto constitutionally protected property
14
Q
REP for luggage
A
luggage: REP for invasive searches but not canine sniff
15
Q
automobiles (REP)
A
automobiles: need reasonable suspicion of law violation to effectuate a stop, and PC for pretextual stops when traffic law violated to investigate whether another law has been violated; fact that a person in lawful possession of a rental car is not listed on the rental agreement does not defeat his REP
16
Q
open areas (REP)
A
outside curtilage–no reasonable expectation of privacy
17
Q
odor from car (REP)
A
no REP
18
Q
technological device (REP)
A
attaching a tracking device to a person without consent is a search; collecting cell-site location information from a wireless carrier to track a person requires a warrant
physically intruding on a suspect’s property to install a technological device may be a search
19
Q
exceptions to search warrant requirement
A
incident to lawful arrest: must be reasonable in scope and incident to a lawful arrest
20
Q
wingspan search
A
- must be reasonable in scope and incident to a lawful arrest
- includes contemporaneous search of person/immediate surrounding area including pockets/containers (does NOT include cell phone or laptop unless exigent circumstances exist)
21
Q
home search
A
- must be reasonable in scope and incident to a lawful arrest
- “protective sweep” is permissible, even without PC or reasonable suspicion; includes immediately adjoining place of arrest in home from which an attack could be launched and in which a person might be hiding (adjacent rooms, closets, showers)
– search area can be broadened if based on reasonable suspicion that confederates are hiding beyond these immediately adjacent areas
22
Q
vehicle search (incident to lawful arrest)
A
- arrestee is within reaching distance of passenger compartment (weapons/evidence) during search, or
- reasonable that evidence of the offense of arrest might be in vehicle
23
Q
exigent circumstances
A
totality of circumstances test:
- must have PC and exigent circumstances
- police may not create the exigency by threats or conduct that violates 4A
24
Q
hot pursuit
A
- police in pursuit of a suspect can seize “mere” evidence (not fruits/instrumentalities of crime) from a private building if they have PC to believe the suspect committed a felony
- may also act without warrant if they have PC that suspect committed a misdemeanor and the totality of the circumstances shows an emergency
25
emergency
reasonable apprehension that delay in getting warrant would result in immediate danger of evidence destruction, police/public safety or fleeing felon (judged by police officer's objective reasonable belief)
26
stop (Terry stop)
reasonable suspicion (totality of circumstances), based on articulable facts that detainees involved in illegal activity, and is a limited/temporary intrusion on def's freedom of movement
27
frisk
officer without PC may pat down a person's outer clothing if the officer has reasonable suspicion that the suspect was/is involved in criminal activity and that the frisk is necessary for safety
28
"plain feel" exception
if officer conducting a valid frisk feels an object whose identity is immediately obvious (i.e., PC of contraband) it can be seized
29
passenger compartment search (during stop & frisk)
permitted if police have reasonable belief suspect is dangerous and may get immediate control of weapons, and the search is limited to places where a weapon could be hidden
30
limitations on stop & frisk
least intrusive means reasonably available to frisk for weapons only, but if suspicion becomes PC, then officer can make arrest and conduct a full search
31
automobile exception
can search any part of car (compartments, particular containers (including luggage), trunk, etc.) IF PC that it contains contraband/evidence of crime
does not permit warrantless entry of home or curtilage in order to search a vehicle therein
32
"plain-view" doctrine
in public view: no REP
in private view: officer on premises for lawful purpose, incriminating nature of item immediately apparent, officer has lawful access to item
33
consent
must be voluntary: no threats of harm, compulsion, or false assertion by lawful authority (totality of circumstances); but gov agent may pretend to be someone else
34
consent by third party
can consent to own property search, but def's property only if agency relationship to def or def assumes the risk of search when giving right to third party to consent to search
35
warrant authorizing wiretapping
- limited period of time
- PC that a specific crime has been or is about to be committed
- identify persons and describe particular conversations to be tapped
- when to terminate tapping
- reveal intercepted conversation to court
36
standing to object to search
def must show a legitimate expectation of privacy with regard to the search
37
fruit of the poisonous tree
applies not only to evidence initially seized as a result of government illegality but also to secondary derivative evidence resulting from primary taint
38
exceptions to exclusionary rule
- inevitable discovery: in same condition through lawful means
- independent source: unrelated to tainted evidence
- good faith: applies to police relying in objective GF on either facially valid warrant later found invalid or existing law later held unconstitutional; does not apply if no reasonable officer would rely on affidavit underlying warrant, warrant defective on its face, warrant obtained by fraud, magistrate wholly abandons judicial role, or warrant improperly executed
- isolated police negligence: not enough to trigger exclusionary rule; must be sufficiently deliberate that exclusion can meaningfully deter it
- knock and announce: exclusionary rule doesn't apply when police fail to knock and announce their presence
- in court ID: not fruit of an unlawful detention
39
harmless error in exclusionary rule
court can refuse to order new trial if error harmless beyond reasonable doubt, i.e., illegal evidence did not contribute to result
40
5A self-incrimination privilege
no person shall be compelled in criminal case to testify against himself; applies to states through 14A
41
waiving 5A privilege
def waives by taking the stand and answering prosecution's questions
witness waives by disclosing self-incriminating information in response to a specific question
42
5A immunity
prosecution may compel incriminating testimony if it grants immunity; precludes use by another US jurisx to prosecute the def
transactional: blanket or total immunity, fully protects a witness from future prosecution for crimes related to testimony
use and derivative-use: only precludes use of witness's own testimony
43
5A in a police interrogation context
any incriminating statement obtained as a result of custodial interrogation may not be used against suspect at subsequent trial unless police inform subject of Miranda rights
44
custodial interrogation
custodial: substantial seizure, i.e., formal arrest or restraint of freedom equivalent to arrest; would reasonable person believe he could leave?
interrogation: question and also words/actions reasonably likely to elicit incriminating response
- voluntary statements not protected
- confessions involuntary only if coerced by police (totality of circumstances)
45
compliant content/timing of Miranda rights
- warning must be given BEFORE interrogation begins (or given again if stopped for long time then resumed)
- need not be verbatim, but must inform suspect of right to remain silent, any statement can be used in court, right to an attorney (or one will be appointed)
46
5A right to counsel
- suspect must make a specific, unambiguous statement asserting his desire to have counsel present
- once invoked, all interrogation must stop until counsel is present, UNLESS:
-- suspect may voluntarily initiate communication with police (including spontaneous statements), or
-- 14-day or more break in custody and fresh Miranda warnings are given
47
5A right to silence
- suspect must make specific, unambiguous statement asserting his desire to remain silent (mere silence is not enough)
- interrogator must scrupulously honor right if invoked, but if suspect indicates desire to speak, subsequent interrogation lawful if suspect not coerced, and Miranda warnings must be given again
48
exceptions to compliance with Miranda rights
- public safety
- routine booking questions
- undercover police
49
fruits of a tainted confession
Miranda violation doesn't automatically result in suppression of incriminating statements made after second warnings given
but, second confession inadmissible if circumstances make it clear police approach was intentional attempt to circumvent Miranda
50
6A right to counsel: types of proceedings
any case in which actual/suspended incarceration is imposed
51
6A right to counsel: applicability
- automatically applies at all critical stages of prosecution after formal proceedings begin
- right automatically attaches when formal judicial proceedings have begun (e.g., post-arrest initial appearance before a judicial officer, formal charge, preliminary hearing, indictment, information, or arraignment)
- no right to counsel at post-conviction proceedings (e.g., parole, probation)
52
waiver of 6A right to counsel
- must be voluntary, knowing, and intelligent
- receiving a Miranda warning sufficiently apprises a person of his 6A rights and the consequences of waiving those rights
53
subsequent waivers of 6A right to counsel
if an accused has not actually asserted his right to counsel (e.g., court automatically appoints counsel), there is no presumption that any subsequent waiver of the right to counsel will be involuntary; if an accused actually asserts the right to counsel, then subsequent waivers are presumed involuntary, but only in a custodial setting
54
police interactions after 6A rights attach
police may initiate non-custodial interactions with the accused outside presence of lawyer with no presumption that any knowing waiver of the right to have counsel present for the interaction is involuntary
55
right to proceed pro se
def can refuse counsel and proceed pro se at trial
- court should warn def of dangers and disadvantages, and may appoint "standby counsel"
- def may be competent to stand trial yet incompetent to represent himself
56
withholding information re: 6A right to counsel
police have no obligation to inform def that counsel has been trying to reach him unless 6A has attached
57
Blockburger test
two different crimes in one criminal transaction deemed to be same offense unless each offense requires proof of an element that the other does not
58
6A offense-specific Miranda comparison
unlike Miranda, presence of counsel only applies to interrogations about offense charged, and police must deliberately elicit the incriminating statement to create a violation
like Miranda, def may make knowing/voluntary waiver of right
59
effect on conviction when def is denied counsel
conviction is automatically reversed even without specific showing of unfairness
60
effect on guilty plea when def is denied counsel
def has right to withdraw plea and can't be used against him as an admission
61
nontrial proceeding (denial of 6A counsel)
harmless-error analysis
62
effect on def's statements to informants when denied 6A counsel
post-indictment statement to informant where situation is likely to induce def to incriminate himself without counsel is inadmissible (but police may place an informant in def's cell to listen without questioning def)
63
ineffective assistance of counsel
claimant must show:
- counsel's representation fell below objective standard of reasonableness; AND
- counsel's deficient performance prejudiced def, resulting in the reasonable probability that the outcome would have been different
-- mere inexperience, strategy, or failure to produce mitigating evidence insufficient
-- prejudice presumed if deficient performance costs def an appeal, even if def signed a waiver of his right to appeal as part of a guilty plea, or if def was not informed that a plea carried a risk of deportation
64
conflict of interest (ineffective assistance)
representation of defs with conflicting interests may amount to ineffective assistance of counsel
must show actual conflict and an adverse effect on counsel's performance
65
actual conflict
occurs when a court determines that the defense atty is subject to an obligation/unique personal interest that, if followed, would lead her to adopt a strategy other than that most favorable to def
66
adverse impact
occurs when a plausible alternative strategy/tactic might have been pursued but was inherently in conflict with, or not undertaken, due to attorney's other loyalties or interests
67
types of eyewitness ID procedures
corporeal: in person (e.g., lineups)
non-corporeal: not in person (e.g., photo arrays)
68
impermissibly suggestive identification procedures (due process)
two-prong test:
- def must prove ID was impermissibly suggestive; and
- substantial likelihood of misidentification
prosecution may prove that it was nonetheless reliable (opportunity to view, degree of attention, accuracy of witness's description, level of certainty, length of time)
69
remedy for impermissibly suggestive identification procedures
suppression hearing (usually outside jury's presence) to determine admissibility
finding of impermissibly suggestive procedures will result in suppression
70
probable cause to detain
- must be held within 48 hours of arrest to determine PC
- 4A guarantees def right to be released if no PC
- no remedy if detention is unlawful (other than exclusion of evidence)
71
initial appearance
judge advises def of the charges and his rights and appoints counsel if def is indigent; judge may also decide conditions of bail and accept a plea
72
right to bail
no constitutional right to bail, but denial of or excessive bail must comply with Due Process Clause
73
competency
def must comprehend nature of proceedings against him and have ability to consult with lawyer with reasonable degree of rational understanding to be competent to stand trial
74
grand juries
def has no right to present/confront witnesses or introduce evidence, and no dismissal due to procedural defect unless substantial impact on decision to indict
intentional racial discrimination in selection of grand jurors results in overturn of conviction
75
state's duty to disclose
affirmative duty to disclose to def any material evidence favorable to def and relevant to prosecution's case-in-chief that would negate guilt or diminish culpability/punishment
76
failure of state to disclose
grounds for reversal if def shows:
- evidence is favorable to def; and
- failure to disclose caused prejudice against def
77
double jeopardy
protects against second prosecution for same offense after acquittal/conviction and against multiple punishments for the same offense
78
same offense
Blockburger test applied if def's conduct can be prosecuted as two or more crimes so it generally bars successive prosecutions for greater/lesser included offenses unless jeopardy attaches to lesser included offense before event necessary for greater offense
79
double jeopardy attachment
when jury is impaneled/sworn in or when first witness is sworn in for bench trial
80
double jeopardy in different jurisdictions
def can be charged/convicted in federal and state court
81
first appeal as of right
def is guaranteed equal protection and right to counsel (but an attorney may withdraw and there is no right to self-representation)
82
discretionary appeal
indigent def does not have right to appointment of counsel unless conviction was based on a guilty or nolo contendre plea
83
harmless error
an error that does not affect substantive rights; will not serve as grounds for reversal
84
plain error
def who failed to preserve claim of error is entitled to appellate relief when:
(i) the district court committed error under the law in effect at the time the appeal is heard;
(ii) the error is obvious under that law; and
(iii) the error affected the def's substantial rights
85
convictions
def can attack conviction after unsuccessful appeal under writ of habeas corpus (civil action, so standard is preponderance of evidence)
86
tests for attack on conviction
(i) the unlawful detention had a "substantial and injurious" effect/influence on the verdict; and
(ii) court's decision was contrary to law or based on an unreasonable determination of facts
Bar Prep
flashcards
Decks in class (5)
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