Criminal Procedure Flashcards
(37 cards)
Warrantless search following an arrest that violates state law
A warrantless search can be conducted following an arrest that violates state law. The police may conduct a search incident to an arrest whenever they arrest a person, even if the arrest is invalid under state law, as long as the arrest was constitutionally valid (e.g., reasonable and based on probable cause)
Plain View
For the warrantless seizure of an item under the plain view exception, the police
(1) must legitimately be on the premises where the item is found;
(2) the item must be evidence, contraband, or a fruit or instrumentality of a crime;
(3) the item must be in plain view; and
(4) it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime
It is not required that the item be inadvertently discovered
Arrest Warrant/Search of 3rd Party’s Home
Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.
Seizure
For 4th Amendment purposes, a seizure occurs when a reasonable person would believe that he is not free to leave. The courts consider the totality of the circumstances in making this determination
A seizure requires a physical application of force (e.g., handcuffing or otherwise subduing a person) or submission to an officer’s show of force
ex: If a police officer approaches a suspect and draws her revolver, orders the suspect to stop, and the suspect complies, this will most likely be found to constitute a seizure
NOT A SEIZURE:
- If a police officer turns on his squad car’s overhead lights as the squad approaches a suspect and the suspect runs (no physical application or submission)
- If a police officer approaches a suspect, orders the suspect to stop, and the suspect runs, there is no application of force and no submission to the show of force, which would require, at the least, stopping in response to the officer’s order
- If a police officer boards a bus, asks a suspect for identification and consent to search his luggage, and the suspect agrees, a court would not likely find a seizure for Fourth Amendment purposes. Police officers may ask people for permission to search and for identification; such requests do not involve the physical application of force or submission to a show of force
Consent (Parent)
A search of a residence can be based on the voluntary consent of the occupant. Where a a parent has general access to a room occupied by a son or daughter, the parent can give a valid consent to a general search of the room, even if the son or daughter is an adult
4th Amendment
The 4th Amendment to the US Constitution provides that people are to be free from unreasonable searches and seizures. Generally, to be reasonable, a search or seizure must be pursuant to a warrant, although there are a number of exceptions to this general rule.
5th Amendment Right to Counsel under Miranda
The 5th Amendment right to counsel under Miranda applies only to custodial interrogations by the police or one known to be an agent of the police. The purpose of the rule is to protect the right against self-incrimination by preventing the police from badgering a suspect until he talks. The warnings are intended to offset the coercive atmosphere of custodial police interrogation, and so the right does not apply when the suspect is not in custody or is not being questioned by a police officer or one known by the suspect to be an agent of the police.
If a detainee invoke his Miranda right to counsel, the police may NOT question him about an unrelated crime. All questioning must cease until the accused is provided with an attorney or initiates further questioning himself.
(This is different from the rule for when the detainee merely invokes his right to remain silent - if the police scrupulously honor the request, they can rewarn the accused and later resume questioning about a different crime)*
Invocation of the right to counsel must be unambiguous and specific
Miranda Warnings
As a means of protecting the 5th Amendment privilege against compelled self-incrimination, a person must be informed prior to custodial interrogation that:
(1) he has the right to remain silent;
(2) anything he says can be used against him in court;
(3) he has the right to the presence of an attorney; and
(3) if he cannot afford an attorney, one will be appointed for him if he so desires
Note - Miranda warnings do not need to be given verbatim, as long as the substance of the warning is there
Miranda warnings must be given only if the detainee is being questioned by someone known to be working for the police - does not apply where interrogation is by an informant who the defendant does not know is working for the police
Right to Confront Witnesses - 6th Amendment (Co-Defendant Situation)
Under the 6th Amendment, a defendant in a criminal prosecution has the right to confront adverse witnesses at trial. If two persons are tried together and one has given a confession that implicates the other, the right of confrontation generally prohibits the use of that statement because the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination. A co-defendant’s confession is inadmissible even when it interlocks with the defendant’s own confession, which is admitted.
Confessions of a co-defendant may be admitted if:
(1) all portions referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement);
(2) the confessing defendant takes the stand and subjects himself to cross-examination regarding the truth or falsity of the statement; or
(3) the confession of the non-testifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, and the jury is instructed as to that purpose (limiting instruction)
Effect of Miranda violation
Generally, evidence is inadmissible at trial.
- Statements may still be used to impeach defendant’s testimony (but may not be used as evidence of guilt)
- Nontestimonial fruits of an unwarned Confession: if the police fail to give Miranda warnings and during interrogation a detainee gives the police information that leads to nontestimonial evidence, the evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence will not be suppressed.
*In contrast, an INVOLUNTARY confession cannot be used for any purpose, including to impeach
In a criminal trial, what is the minimum number of jurors allowed under the 6th and 14th Amendments?
There must be at least 6 jurors to satisfy the right to a jury trial under the 6th and 14th Amendments
Defendant cannot waive this right
If more than _____ months’ imprisonment is authorized, the offense is considered “serious” for determining whether a defendant has a constitutional right to a jury trial
6
An offense is considered serious, making a jury trial a constitutional right, when more than 6 months’ imprisonment is authorized
Speedy Trial - 6th Amendment Right
In determining whether a defendant’s right to a speedy trial was violated, under the totality of the circumstances, the court will consider: (LRAP):
(1) Length of the delay;
(2) Reason for the delay;
(3) whether D Asserted his rights, and
(4) Prejudice to the D
*Delays caused by counsel assigned by the court to the defendant should ordinarily be attributed to the defendant and NOT to the state
Remedy for violation = dismissal WITH prejudice
When does the right attach?
- does not attach until the D has been Arrested or Charged
6th Amendment Right to Counsel
Applies only after adversary judicial proceedings have begun (e.g., formal charges have been filed)
5th Amendment Privilege Against Self-Incrimination
A defendant can refuse to take the stand altogether - and prosecutor cannot comment on defendant’s silence after receiving miranda warnings (violates Due Process), and cannot comment on a defendant’s failure to testify at trial
Exception:
- A prosecutor can comment on a defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that the defendant was not allowed to explain their side of the story
Harmless Error test applies:
- When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies
(i.e., the conviction will not be overturned if the prosecution can show beyond a reasonable doubt that the comments did not affect the outcome of the case) - would need an indication as to the strength of the case against the D in the facts for harmless error to be the correct answer
Right to remain silent does not include the right to protect others from incrimination
- Supreme Court has held that a D’s refusal to cooperate with an investigation of the criminal conspiracy of which he was a member may properly be considered in imposing sentence
Probable Cause Definition
Reasonably trustworthy facts that would lead a prudent person to believe that a crime was committed
In terms of arrest:
- trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law
*Probable cause is based on the totality of the circumstances
Terry Stops
The police have the authority to briefly detain a person even if they lack probable cause to arrest. If the police have a REASONABLE SUSPICION of criminal activity or involvement in a completed crime, supported by ARTICULABLE facts (not merely a hunch), they may detain a person for investigative purposes. If the police also have reasonable suspicion that the detainee is armed and dangerous, they may FRISK the detainee for weapons
Duration & Scope
- investigatory stops are not subject to a specific time limit - the police must act in a diligent and reasonable manner in confirming or dispelling their suspicions
- the police may ask the detained person to identify themself (state their name) and generally may arrest the detainee for failure to comply with such a request
- the detention will also turn into an arrest if during the detention other probable cause for arrest arises
Property Seizures
- brief property seizures are similarly valid if based on reasonable suspicion
Automobile Stops
Generally, police officers may stop a car if they have at least reasonable suspicion to believe that a law has been violated
Police Dogs
- during routine traffic stops, a dog sniff is not a search, so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries
- a dog “alert” to the presence of drugs can form the basis for probable cause to search
Seizure of All Occupants
- an automobile stop constitutes a seizure not only of the driver, but also of any passengers as well
- thus, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop
Police May Order Occupants Out
- after lawfully stopping a vehicle, in the interest of officer safety, the officer may order the occupants of the vehicle to get out. Moreover, if the officer reasonably believes that detainees are armed, the officer may frisk the occupants and search the passenger compartment for weapons, even after the officer has ordered the occupants out
2 ways in which searches and seizures can implicate an individual’s 4th Amendment rights
(1) search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; OR
(2) physical intrusion by the government into a constitutionally protected area to obtain information
Standing
A person must have standing to object to a governmental search. To have a 4th Amendment right, a person must have their own reasonable expectation of privacy with respect to the place searched or the item seized. The determination is made on the totality of the circumstances, but a person has a reasonable expectation of privacy any time:
(1) the person owned or had a right to possession of the place searched;
(2) the place searched was in fact their home, whether or not they owned or had a right to possession of it; OR
(3) the person was an overnight guest of the owner of the place searched
There is an important “sometimes” category of standing:
- the person owns the property seized - if the person owns the property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched
Requirements for a Facially Valid Search Warrant
(1) Probable Cause
- a warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed
- officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officer’s conclusions
(2) Particularity
- a warrant must describe with particularity the place to be searched and items to be seized
- if it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail
*Reliance on a Facially Valid Warrant
- evidence obtain by the police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by PC
*Warrant may be Anticipatory
- a warrant can predict when illegal items may be in a suspect’s home or office. The items need not be on the premises at the time the warrant is issued
Execution of Warrant
Only the police may execute a warrant, and it must be executed without unreasonable delay. Police must knock, announce their purpose, and wait a reasonable time for admittance (unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation)
The police may not be accompanied by third parties, unless the third parties are present to aid in identifying stolen property
The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant. Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.
In any case, violations of the knock and announce rule WILL NOT result in the suppression of evidence otherwise properly obtained - the exclusionary rule does not apply
Search of Persons Found on Searched Premises
- a warrant to search for contraband authorizes the police to detain occupants of the premises during a search, BUT a search warrant DOES NOT authorize the police to SEARCH persons found on the premises who were not named in the warrant
SILA
Incident to a constitutional arrest (one based on PC to believe that a law has been violated), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence
- the police may also make a protective sweep of the area if they believe accomplices may be present
*The search must be contemporaneous in time and place with the arrest
SILA - Automobiles
The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search:
(1) the arrestee is unsecured and still may gain access to the interior of the vehicle; OR
(2) the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle
DUI Arrest justifies Breath (but not blood) Test
- Contemporaneous with an arrest for intoxicated driving, police officers may administer a warrantless breath test to determine the arrestee’s alcohol levels but may not administer a warrantless blood test
- Rationale: a breath test is not very intrusive and leaves no lasting sample with the government, while a blood test requires piercing the skin and leaves the government with a genetic sample.
Physical Attributes of Cell Phone May be Searched, But NOT Data
- because of their strong interest in assuring that arrestees do not have weapons or contraband, police officers may examine the physical attributes of a person’s cell phone upon arrest
- however, officers may not examine the data on a cell phone without a warrant since it cannot be used as a weapon
