Criminal Procedure Flashcards
(34 cards)
4A
protects against unreasonable searches and seizures*
remember relatedly that the FRE do NOT apply to the issuance of search warrants
4A violation –essay analysis structure
- define 4A
- was there govt conduct?
- analyze proper seizure
- analyze proper search
- does D have standing? ie, does D have a reasonable expectation of privacy as to the places searched or the items seized
seizure + search question structure
analyze seizure first and then search under separate headings / issues
what constitutes a seizure
when by means of physical force OR show of authority, a person’s freedom of movement has been restrained
TEST: under the totality of circumstances*, would a reasonable person NOT feel free to leave?
- totality of the circumstances means apply the facts – insert factual analysis here
types of seizure – most common examples
- arrest
- stop and frisk
- police checkpoints
- traffic stop
rules governing arrest
- usually need a warrant*
RULE (most commonly tested): if officer has PROBABLE CAUSE* to believe a FELONY has been committed (no need to directly witness), they can make a warrantless arrest
*be sure to analyze probable cause
rules governing Terry stop / investigatory stop and frisk
if an officer has reasonable suspicion* that someone is engaged in criminal activity (lower std than PC), can make a terry stop
*analyze reasonable suspicion according to the facts
rules governing police checkpoint
- discuss whether checkpt is valid
- as long as they are stopping people on a nondiscriminatory basis AND there is a specific reason for the checkpoint beyond just general crime prevention
rules governing traffic stop
if the officer has reasonable suspicion or probable cause that a traffic rule has been violated, can stop a driver
*recent example of a statute provided that if officer had probable cause to believe that someone has violated a traffic rule, can arrest. in that situation the statute was valid.
when does a search occur?
when govt conduct violates D’s reasonable expectation of privacy*
*factual inquiry** – why does D have a reasonable expectation of privacy (either in themselves or in their bag, car, etc.)?
**this analysis is separate from the analysis of whether or not the search was VALID
valid search warrant?
ASK:
(1) was there a warrant?
(2) was the warrant valid?
If yes, then search is constitutional
VALID WARRANT:
(i) issued by neutral magistrate
(ii) PC
(iii) describes w/ particularity D & the places or items to be searched / seized
EXECUTION OF WARRANT:
normally have to knock and announce themselves (if they don’t, usually not considered a huge deal)
INVALID / DEFECTIVE WARRANT EXCEPTION:
- if a warrant doesn’t meet the three prongs, and an officer executes it in GOOD-FAITH RELIANCE, believing the warrant is valid, then this isn’t a violation
no search warrant analysis
if no search warrant, then go through the relevant exceptions
exceptions that allow for search w/ no warrant:
(1) Terry Frisk*: this is when they pat down the outside of the person’s clothing for “officer safety”. Not supposed to reach into pockets or do anything more invasive than a pat-down.
if officer feels something that is clearly contraband (weapons, drugs, something illegal), OK to reach in and explore further. Has to be based on PLAIN FEEL.
*not the same analysis as for Terry Stop
(2) Terry Automobile Frisk: if office stops a car (based on R.S. of traffic violation), and they think there is a weapon in the car, they can engage in a Terry frisk of the car, and search the areas that may contain a weapon (again, for officer safety)
NOTE: if officer finds contraband during either Terry frisk or Terry automobile frisk, can give rise to probable cause to then arrest the person.
(3) Search incident to lawful arrest: if a lawful arrest has occurred, then you can search the person within a reasonable scope. Two parts to the analysis:
(i) was there a lawful arrest? i.e did officer have PROBABLE CAUSE to arrest someone? if yes, then can arrest
(ii) was the search proper?
- general patdown, no deeper intrusion except when plain feel of contraband
- can search D in his immediate area (ie areas in wingspan)
- if in D’s home, can search areas within home where D could reach or other areas where there might be other Ds or criminals hiding
- if in vehicle, can search glove compartment if it’s within reaching distance OR if it’s reasonable that there may be evidence in there
(4) Automobile Exception (NOT same as Terry Automobile Stop): if officer has PROBABLE CAUSE to believe that car contains CB or evidence of a crime, can search any part of the car. Not limited to glove compartment or wingspan
(5) Plain View: if police are in a place where they’re allowed to be, and see an item and the item is clearly and immediately apparent to be contraband, they can take the item. Not violation of a warrant requirement.
- KEY part of analysis here: ALWAYS ASK if the officer in a location where they’re allowed to be.
(6) Exigent Circumstances: broad catch-all. Any # of reasons can qualify.
- “hot pursuit” of a fleeing felon who goes into a building – don’t need warrant to destroy the reading.
- Evanescent evidence (e.g. drug could be flushed, explosive will have blown up).
- Police or public safety (e.g. gun located somewhere in a playground)
(7) Voluntary consent: but cannot exceed scope
Exclusionary Rule
if govt violated D’s 4A rights, ie conducted an improper seizure or search, will exclude:
(1) evidence that was obtained as a result of govt’s violation of your 4A rights
(2) “fruit of the poisonous tree” - other evidence obtained as a result of that illegal search
EXCEPTIONS
(i) inevitable discovery
(ii) independent source doctrine
(iii) passage of time - if enough time has passed in between violation & illegal evidence being found
(iv) good faith reliance
5A
no person shall be forced to testify against themself (right against self-incrimination)
applies to testimonial evidence coercively obtained by police
If a D is undergoing CUSTODIAL INTERROGATION, officer must provide Miranda warnings (right to remain silent and right to counsel).
in answer, analyze both:
(1) is D in custody?
(2) is D undergoing an interrogation?
DEF: Custody
D is in custody if D reasonably believes they are not free to leave, or that they are otherwise deprived of their freedom
DEF: Interrogation
express questioning OR when officer says words or makes axns that the police should know are likely to elicit incriminating responses from D
what is NOT a Miranda (5A) violation but looks like one?
(1) If D is speaking to govt informant, and DOES NOT KNOW that the informant is with the govt, then there is NO custodial interrogation – D has to KNOW they are in custody or that they are speaking to a govt informant.
– No Miranda violation
– DIFF from 6A. Under 6A, right to counsel would apply in this instance
(2) pre-indictment police lineup is not a Miranda violation
next steps in analysis if Miranda rights WERE read to D
move on to
(1) waiver and
(2) invocation
waiver
- voluntary
- can’t be result of govt coercion
can waive right to remain silent and right to atty but has to meet above requirements
(i) silence is not waiving
(ii) BUT silence + uncoerced statement IS waiver. police don’t need to tell subject that atty has arrived or is trying to reach him
invocation
need to make affirmative statement that you are invoking
(i) right to counsel
- D must UNAMBIGUOUSLY assert their right to counsel. If vague or ambiguous, police don’t have to clarify anything and can continue to question.
- 5A right to counsel is NON-OFFENSE SPECIFIC. After that, police can’t question them further about the crime they’ve been arrested for or any other crime
- if you invoke right to counsel and then make a voluntary statement, that can be admitted
(ii) right to remain silent
- D must UNAMBIGUOUSLY assert.
- Police may not re-approach and question D about the crime charged or any other crime, UNLESS there has been a 14-day break or more in custody. At 15 days, police can re-approach, re-Mirandize, and obtain a waiver at that point.
silence is not invocation
Standing
who can assert Miranda rights?
can only raise own Miranda rights (ie can’t raise co-defendants’)
Exclusion of statements
voluntary statements: not protected
involuntary statements: always INadmissible
to determine whether a statement is voluntary or involuntary for the purposes of Miranda protection
look at totality of the circumstances:
1) police’s conduct
- how did they engage w/ D?
2) D’s characteristics
- age
- education
- any past experience w crim legal system
3) surrounding circumstances
e.g. what time of day or night did statement occur?
Second confessions
DEF: this is what happens if a confession is obtained in a manner that violated Miranda, but then later, the D is read Miranda, waives, and confesses again
may be admissible AS LONG AS first confession was a result of a good faith mistake (accidental failure to read Miranda rights)
voluntary statement made in violation of Miranda
excluded for merits BUT can be used to impeach D
e.g. if D’s Miranda rights were violated and they make a voluntary statement, and then later testify contrarily, the prior statement can be used against them
