Criminal Procedure Flashcards

Question

Arizona v. Gant (2009)

Answer 1

There is a tip that a house in Tucson is being used to sell drugs. Guy at the house has suspended license and outstanding warrant. They search his car incident to arrest. Neither the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case. Officers here outnumbered arrestees. Police may search a vehicle incident to a recent occupant’s arrest only if 1) the arrestee is within reaching distance of the passenger compartment at the time of the search OR 2) it is reasonable to believe the vehicle contains evidence of the offense at arrest.

Answer 2

Police read guy his Miranda rights but failed to inform him that his attorney had called and was assured no questioning would take place. He ends up waiving his right to counsel and speaks to the police. The voluntariness of the waiver is not at issue here. Events occurring outside the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to relinquish a constitutional right. The waiver here was valid. Police are not required to inform a suspect of attorney’s efforts to reach him. 1) Waiver must voluntary-a free and deliberate choice free of intimidation, coercion, or deception; 2) full awareness of the nature of the right and the consequences of abandoning it; 3) totality of the circumstances must show that the waiver is knowing, voluntary, and intelligently made.

Answer 3

Does temporary detention of motorist who police have probable cause to believe has committed a civil traffic violation is inconsistent with 4A prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce traffic laws. Car stopped at intersection for unusually long time then turned suddenly and drove off quickly at unreasonable speed. Decision to stop a car is reasonable when police have probable cause to believe that a traffic violation has occurred. This case upset people because traffic laws are frequently broken and many feel this opens the door to pretextual stops based on race.

Answer 4

Officer starts to Read Miranda rights but is interrupted by suspect saying “I know my rights.” Officers did not complete the warning. Guy then says when asked about a Glock “I don’t want you to take it away from me.” And then eventually tells officer that it is in his bedroom. Introduction of nontestimonial fruit of a voluntary statement does not implicate the self-incrimination clause. Firearm does not need to be suppressed here. A Miranda violation does not extend to physical evidence discovered as fruit of the suppressible statement because the evidence does not implicate the self-incrimination clause.

Answer 5

Should the exclusionary rule be modified so as not to bar use when officer’s were acting in reasonable reliance on search warrant that would later be found to be unsupported by probable cause? Yes, if done in good faith such evidence should be admissible for the prosecution’s side. Officer’s are not supposed to question magistrate’s probable cause determination. But his reliance must be objectively reasonable in some cases there may be no reasonable grounds for believing the warrant is good. If magistrate was misled then evidence can be suppressed, or if judge abandoned his judicial role, or if it is so facially deficient.

Answer 6

Does surveillance of partially covered greenhouse from residential backyard from a helicopter count as a search and require a warrant? No, helicopter was in regularly travelled space and obeyed all airspace laws this is totally fine. What a person knowingly exposes to the public even in his own home is not subject to 4A protection.

Answer 7

Mosley arrested for robberies. Mosley says he does not want to answer any questions about it. At no point did he indicate a desire to consult with a lawyer. Later he is taken to another room to be questioned about a separate fatal shooting. He’s advised on Miranda rights. He then chooses to speak with the police and says something that implicates himself. Did they violate his 5A rights by interviewing him in the second matter after he said he didn’t want to talk about the first matter? The question is whether the right of the person in custody to remain silent depends under Miranda on whether his right to cut off questioning was “scrupulously honored.” It was honored in this situation; he was carefully advised that he was under no obligation to answer. Also, the only resumed questioning after passage of a significant period of time and fresh warnings, and restricted it to questions of a new crime.

Answer 8

When a person in car is being arrested does the permissible scope of search incident to arrest include passenger compartment of the car? 4A must be expressed in a way that is actionable day to day by the police. When a policeman has made lawful arrest of person in car he may as a contemporaneous incident of that arrest search the passenger compartment of the car.

Answer 9

Officers acted reasonably here. Searched interior of vehicle, it was late at night on a rural road, Long was intoxicated by some substance, they could see a knife in the car. They limited search to areas where Long would have control. Also just because suspect is “in control” of suspect does not mean he can’t hurt them. The control is a legal distinction and not relevant to the fear that suspect could run and grab a weapon and then attack.

Answer 10

Police may enter a home without a warrant “when they have an objectively reasonable basis for believing an occupant is seriously injured or imminently threatened with such injury.

Answer 11

Miranda warnings are not required when the suspect is unaware that he is speaking to law enforcement. In this case undercover agent was placed in defendant’s cell. He told the undercover officer a bunch of incriminating information, obviously not given Miranda warnings. Told them about an escape. Miranda was not meant to protect suspects from boasting about their criminal activities. In this case he had no reason to feel that undercover agent had any legal authority.

Answer 12

Man rapes a woman and officers are questioning him, hides a gun in a grocery store. Overriding considerations of public safety may justify police’s failure to give Miranda warnings. Availability of the public safety does not depend on the motivation of the officers, but on the objective question of danger. The questions asked during a public safety interrogation may still be admitted against a defendant.

Answer 13

DEA contacted by a confidential informant who might be able to locate a federal fugitive wanted on drug charges. Is arrest warrant as opposed to a search warrant adequate to protect against 4A interests of person not named in warrant when home searched without their consent and in absence of exigent circumstances? No the additional burden imposed on police by correct warrant requirement is minimal. By contrast the right of people to be free from unjustified forcible intrusions by the government is weighty.

Answer 14

Does the Fourth Amendment allow states to collect and analyze DNA from people arrested, but not convicted, of serious crimes? Yes. The Court held that conducting a DNA swab test as a part of the arrest procedure does not violate the Fourth Amendment because the test serves a legitimate state interest and is not so invasive so as to require a warrant. The routine administrative procedures that occur during a booking for an arrest do not require the same justification and the search of a location. The Court held that ascertaining an arrestee's identity and criminal history is a crucial part of the arrest procedure and that a DNA test is just as valid and informative as fingerprinting. Determining an arrestee's criminal history also serves the legitimate state interest of determining what level of risk the individual poses to the public and what conditions should be set on his/her release from custody.

Answer 15

Police went into erratic driver’s home without a warrant and found him sleeping. This is really serious and must be considered carefully. Important factor to consider whether there is a sufficient exigency is the gravity of the underlying arrest they’re being arrested for, should rarely be allowed if there is probable cause to believe that it is only a minor offense. In this case he is being arrested for a noncriminal traffic offense. Hot pursuit argument is unconvincing, no continuous pursuit from the scene of a crime.

Answer 16

Guy escaped from mental hospital and kidnaps a girl from a YMCA. Guy is caught and arraigned. Officer reads Miranda warnings and was instructed not to question him while transporting guy across the state. They talk about religion for a while. Detective makes comment about the weather and how it will make it harder to find girl’s body. Guy decides to show them the body. Was he deprived of his right to counsel here? Judicial proceedings had definitely started at this point. Also, detective definitely tried to get information from him. This was a violation. It was made very clear that no interrogation was supposed to happen during this journey.

Answer 17

What about if the identification occurred BEFORE the defendant had been indicted or otherwise formally charged? 6A becomes active when suspect is charged. Attaches after adversary judicial proceedings have been initiated against him, which includes both at time of arraignment and preliminary hearing. Court DECLINES to extend a pers se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution.

Answer 18

Can NY have statutes that authorize police officers to enter private residences without warrant and with force if necessary to make routine felony arrest? No absolutely not ok. The physical entry of the home is the chief evil against which the wording of 4A is directed. Also warrant procedure minimizes the danger of needless intrusions.

Answer 19

Officer notices a guy who he has arrested before and thinks he’s doing another drug sale. Guy is arrested again and officers do cursory inspection of house to see if anyone else is present, search of bedroom find narcotics. Search is only incident to arrest if it is substantially contemporaneous with arrest and is confined to immediate vicinity of the arrest. Nobody consented to search, there was no emergency, no hot pursuit. They went to far after continuing to search the house after they realized no one was in the house in the first room.

Answer 20

Officer brigs dog around the curtilage of the house and it reacts to drugs inside the home. Officer gets a warrant and comes back and finds the drugs. Should this evidence be suppressed? Yes. The curtilage, area immediately surrounding and associated with home is part of the home for 4A purposes. Officer entered the curtilage. Officers may knock on a door just as trick or treaters may but introducing a trained police dog is something else and there is no customary invitation to do that. That the officers learned what they learned only by physically intruding on the property to gather evidence is enough to establish that a search occurred.

Answer 21

Officer sees guy that he knows (due to previous investigation) does not have operator’s permit for vehicle driving the vehicle. He is pulled over and put under arrest. Searches him and finds crumpled up cigarette package, and finds 14 capsules of white pounder, later proved to be heroin. Inside the cigarette package. This search and seizure of the heroin was permissible under 4A law. He was already under custodial arrest which gives rise to the authority to search, its not relevant that he was not actively afraid of the suspect. Entitled to inspect crumpled cigarette box when he came across it, and when he found contraband he was entitled to seize it.

Answer 22

Do officers violate the 4A when they search passenger’s personal belongings inside automobile that they have probable cause to believe contains contraband? They see guy has a syringe, they ask why he has it, and he says its for drugs. Search passengers purse and search it, see from her ID that she lied about her name. They find drugs as well. This was ok. If probable cause justifies the search of a lawfully stopped vehicle it justifies the search of every part of the vehicle and its contents, even if it’s a passengers belongings that could be capable of concealing the object of the search.

Answer 23

Can police attach a GPS to a car and use that to track without a warrant? This wasn’t ok because it required a trespass to the property. If it involved merely the transmission of electronic signals without trespass it would remain subject to Katz analysis.

Answer 24

Officer looks at phone related to arrest and finds gang abbreviations. Also found lots of pictures of guys fighting and standing in front of a car involved in a shooting a few weeks earlier. Riley later charged in connection with that shooting. Should the officer of had a warrant to go through this phone? This case forces the court to consider modern cell phones which are now pervasive and part of daily life and hold a ton of personal information. Digital data store on cell phone cannot itself be used as a weapon to harm an arresting officer or effectuate arrestee’s escape. Another concern is remote wiping of a phone to hide evidence. This can be prevented by disconnecting a phone from a network. Can also use Faraday bags which prevent phone from receiving radio signals. Court also rejects the argument that searches of cell phone is the same as searches of physical items. Modern phones have immense storage capacity. Should everyone who speeds be subject to a search of their cell phone? No! Everyone speeds and everyone has a ton of information on their phone, this would provide officers with unbridled discretion to search. Also searching through call log is not similar to Smith v. Maryland, they have way more info then just phone numbers. Need to get a warrant to search a phone.

Answer 25

Does the automobile exception permit an officer uninvited and without warrant to enter curtilage of home to search a vehicle parked there? No, it does not. When law enforcement physically intrudes on curtilage to gather evidence that is a search and requires a warrant.

Answer 26

Does 14A DPC compel the exclusion of pretrial identification evidence obtained by a police procedure that was both suggestive and unnecessary? Factors to be considered are opportunity of witness to view the criminal at the time of the crime, witness’ degree of attention, accuracy of prior description of criminal, level of certainty, and time between crime and confrontation. In this case these factors were met satisfactorily so this identification was fine.

Answer 27

Narcotics detective receives tip of drug activity at a residence. He conducts intermittent surveillance of home and watches visitors come and go. He stops and arrests a guy who he watches leave the house and finds meth. Prosecutor admits that probable cause not satisfied here. This is a question of the attenuation doctrine, evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance. In this case, does the discovery of a valid arrest warrant a sufficient intervening event to break the causal chain between unlawful stop and discovery of drug related evidence of Strieff? Yes. Three factors involved 1) temporal proximity – this favors suppression here, short amount of time elapsed. 2) Presence of intervening circumstances – this favors the state, existence of a valid warrant favors finding that connection between unlawful conduct and the discovery of evidence is sufficiently attenuated to dissipate the taint. One he saw an active warrant he had a separate obligation to arrest. 3) Flagrancy of official misconduct – favors the state, Officer here was at most negligent. Should have gotten a little more information but not a flagrant violation. Also no evidence of systemic police misconduct. So state wins and does not need to suppress evidence.

Answer 28

Police can issue anticipatory warrants. The fact that drugs have not arrived yet is immaterial. Just need to demonstrate that it is probable that drugs WILL be at the premise at the time the warrant is executed.

Answer 29

Do sobriety checkpoints violate 4A? A 4A seizure does occur when stopped for a checkpoint but the question is whether or not this is reasonable. Drunken driving is a serious problem a state has an interest in eradicating it. Intrusion on the motorists on the other hand is slight. Interest in preventing drunk driving outweighs the degree of intrusion upon individual motorists who are briefly stopped weights in favor of the state program. Fine under 4A.

Answer 30

To challenge a search, the defendant must show a “legitimate” expectation of privacy in the place searched.

Answer 31

Respondent was not "seized" within meaning of Fourth Amendment when he saw police officer running towards him, and thus cocaine he tossed away while being pursued was not fruit of a seizure and should not have been suppressed.

Answer 32

Police agent who conceals police connections may use a wire that conveys information a defendant chose to speak out loud to nearby officers listening without a warrant. Same as Hoffa when you share stuff with people you run the risk that they will betray you. Just because they used electronic equipment to do the betrayal does not distinguish this case from Hoffa.

Answer 33

A driver of a rental car, even if they are not the listed driver on the agreement, does have reasonable expectation of privacy in the car.

Answer 34

Class action suit about stop and frisk in NYC. There is a triable issue of fact as to whether the NYPD leadership has been deliberately indifferent to the need to train, monitor, supervise, and discipline its officers adequately in order to prevent a widespread pattern of suspicion less and race-based stops.

Answer 35

Marital dispute with coke addict husband. Wife moved out to live with her parents but comes back to visit, unclear if to move stuff out or to reconcile. They have a blow up and the police arrive. Wife gives consent while husband expressly does not consent. They search, relying on wife’s consent, the house and they find drugs. Between cotenants if one consents and one does not, who prevails? If a tenant is expressly refusing consent they win out. But of course in a DV situation police can enter to diffuse a dangerous situation.

Answer 36

o Probable cause o Must particularly describe the place to be searched and o Persons or things to be seized o Execution of the warrant must be reasonable

Answer 37

Even if the person cannot actually be punished with jail, as long as the arrest is valid (such as for not wearing a seatbelt), officers can search incident to that arrest.

Answer 38

Does accused’s invocation of 6A right to counsel during a judicial proceeding constitute an invocation of Miranda right to counsel. 6A right is offense specific, it cannot be invoked once for all future prosecutions. This makes it different from 5A invocation. To invoke 6A interest is to NOT invoke 5A interest.

Answer 39

Officers come to home to make an arrest (with arrest warrant) and do not have a search warrant. Found items from a burglary. Can a warrantless search of the entire house be constitutionally justified as incident to the arrest? Similar to in Terry, when an arrest is made it is reasonable for the officer to check their person for weapons as well as the are that they might reach. HOWEVER, there is no justification for routinely searching any room other than that in which an arrest occurs. The search in this case went far beyond the arrested person’s person and the area they could have grabbed a weapon so it was not justified.

Answer 40

The main issues were whether the United States could retain and use documents obtained by private individuals through unlawful means without the involvement of government officials, and whether this action violated McDowell's Fourth and Fifth Amendment rights. The U.S. Supreme Court held that the United States could retain and use the documents as evidence against McDowell because the government did not participate in or have prior knowledge of the wrongful seizure by private individuals, therefore not violating the Fourth and Fifth Amendments. The U.S. Supreme Court reasoned that the Fourth Amendment's protection against unreasonable searches and seizures applied only to governmental actions and not to private individuals. Since the government did not participate in or have knowledge of the wrongful taking of McDowell's documents, the seizure did not constitute a governmental search or seizure under the Fourth Amendment. Additionally, the Fifth Amendment's protection against self-incrimination did not apply because the government did not compel McDowell to produce evidence against himself; the documents were obtained from a third party. The Court concluded that the government could lawfully use the documents in its possession, as they were not obtained through any violation of McDowell's constitutional rights by government authorities.

Answer 41

Guy stops and frisks two guys that seem to be casing a store for a robbery and finds a gun on him. Problem is that often police need to confront people on the street. The Court acknowledges that this was both a search and a seizure. Were the officer’s actions justified at inception and was it reasonably related in scope to the circumstances which justified the interference. This is a type of police conduct that has to exist, requires swift action predicated upon on the spot observations, facts must be evaluated from perspective of officer at the relevant moment and what he can observe. Also he confined search strictly to what was minimally necessary to determine that they were armed.

Answer 42

Shatzer is accused of sexually abusing his 3-year-old son. He is in prison currently and someone comes to the prison to ask him questions. Reads him Miranda rights. Says “I didn’t force him” after failing a polygraph. If a suspect invokes his right to counsel, if there is 1) a break in “custody” and 2) at least 14 days have passed, and 3) he is re-Mirandized, police may continue to interrogate the suspect if he voluntarily waives his 5A protections during the second interrogation.

Answer 43

Police find porn in a woman’s house without a warrant and they should have had a warrant. What remedy does she have for this violation of her 4A rights? All evidence obtained by searches and seizures in violation of the Constitution is, by that same authority inadmissible in a state court. This is the exclusionary rule.

Answer 44

What if a really dumb guy waives his right to a lawyer? The question is whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. The prosecution has the burden to establish waiver of Miranda rights. While a written or oral statement of waiver is strong proof, it is not necessary. Courts may find waiver “is clearly inferred from the actions and words of the person interrogated.

Answer 45

Officer presents suspect with form containing Miranda rights. Also reads it out loud. He was mostly silent during three-hour interrogation. Suspect argues that he invoked his privilege to remain silent by not saying anything for a sufficient period of time so the interrogation should have ceased. Court finds this argument unpersuasive. Miranda rights must be invoked unambiguously. Thompkins did not say that he wanted to remain silent out loud. No indication that Thompkins did not understand his rights, so he knew what he gave up when he spoke.

Answer 46

Were 6A rights violated by incriminating statements made to cell mate? Cell mate was a paid government informant. Also only paid if he produced information. Third party doctrine does not apply here, this is a 6A issue instead of 4A/5A. These statements should not have been admitted at trial. Government cannot bypass counsel like this.

Answer 47

Merchant seaman was going to transport narcotics and was found out. He is interrogated secretly after being charged. Any secret interrogation of defendant from and after finding of the indictment without protection of counsel contravenes the dictates of fairness in the conduct of a criminal case. Its ok to continue an investigation after someone has been charged, however, defendant’s own statements, obtained by agents under these circumstances cannot be used by the prosecution.

Answer 48

Bullet fired through apartment building and hits someone. Officers arrive to search for shooter, sees what appears to be stolen stereos and records their serial numbers. This was an invasion of privacy and outside of the purpose of his lawful entry into the apartment. Probable cause was required here. This case limits plain view searches and seizures to requiring probable cause.

Answer 49

Does the 4A permit the seizure of contraband detected through police officer’s sense of touch during a protective pat down search? Yes they may seize, so long as the officer’s search stays within the bounds marked by Terry. If officers lawfully pat down a suspect’s clothing and feels an object that “makes its identity immediately apparent,” they may seize it.

Answer 50

Search was not allowed. The result of approving the conduct here would be that any person leaving New York City on a bus or train would be subject to being stopped by the police and requested to produce identification and a ticket indicating his or her destination. Consequently, people riding public transportation departing or arriving from New York City would be subject to indiscriminate police inquiry so long as the stated purpose for the intrusion was to investigate for drugs.

Answer 51

Does it violate 4A when police access a phone number records from whose called a home without a warrant? No, this is information from the phone company voluntarily handed over from the suspect. Third parties are allowed to blab. The register in this case is distinct from Katz because it did not record the contents of the communication on the phone call. People do not have expectation of privacy for the numbers they dial, everyone realizes this info must be conveyed to the telephone company.

Answer 52

Means less than evidence which would justify condemnation or conviction but more than bare suspicion.

Answer 53

An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable suspicion that the person is committing a crime but you can take in relevant contextual considerations to a Terry analysis, e.g. “high crime” area. Also unprovoked flight is more than “going about one’s business”. It was ok to arrest this guy.

Answer 54

Guy purchased a one way ticket to NY and seemed like a drug runner didn’t have adequate stuff. An investigative detention must be temporary and last no longer than is necessary to effectuate purpose of the stop. Officers took his stuff without consent and not informed that he was free to leave, he reasonably believed he was detained. Probable cause was also not reached, you can’t say that there is probable cause to arrest every nervous young man paying cash for ticket to NYC under assumed name and carrying two heaving bags.

Answer 55

Police department receives anonymous handwritten letter with a tip about a drug dealing couple. Police obtained warrant searched car and found weed. Lower court argues this was not ok because there is nothing in the letter that indicates that the writer is reliable, also police could have just written it themselves. Supreme Court disagrees and clarifies that tips need to be evaluated in the “totality of the circumstances”. Probable cause is a fluid concept. Abandons the two prong test from Spinelli. Letter in this case contained a lot of facts not easily predicted that lends the writer credibility. It is enough that there was a fair probability that the writer obtained this story from the Gates or someone they trusted. There was a substantial basis for probable cause.

Answer 56

Guy at a motor home is trading weed for sex. Police search it without warrant under the automobile exception. Automobiles have less expectation of privacy, generally everyone can see into the insides of cars also they readily mobile. The ease at which vehicles can travel is the real operative issue. They have a compelling need for regulation. This motor home was easily mobile, could drive away at any time, so subject to the automobile exception.

Answer 57

Does exigent circumstances rule apply when police by knocking on the door of a residence and announcing presence cause the occupants to attempt to destroy evidence. The exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.

Answer 58

Is suspect’s awareness of all crimes about which he may be questioned relevant to determining the validity of his decision to waive 5A privilege? Two guys kill another guy during a hunting trip in Colorado. Guy waives 5A and it is done knowingly and intelligently. Suspect speaks to officers from jail but does not know they are going to question him about Colorado murder. He argues that his waiver of 5A right was not truly voluntary for this reason. Court does not buy this argument. The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of 5A privilege. A suspect’s awareness of all possible subjects that could come up in questioning in advance is not relevant to voluntary waiver of 5A.

Answer 59

Does 4A prohibit search and seizure of garbage left outside of the home? No, trash left for pickup is not protected. The trash collectors are third parties, and they can hand it over to the police if they want to. Garbage is known to be readily accessible to animals, children, scavengers, snoops, and others. Also is intentionally left to be taken by third party. Also, the trash was left outside of the house.

Answer 60

This case raises the fundamental issue of whether or not a police officer, in the absence of any concrete indication of criminality, may approach a private citizen on the street for the purpose of requesting information. We hold that he may. The basis for this inquiry need not rest on any indication of criminal activity on the part of the person of whom the inquiry is made but there must be some articulable reason sufficient to justify the police action which was undertaken.

Answer 61

Police have a warrant to search an apartment. The floor of the apartment has a strange layout and they are in a different apartment but think they are in the correct one. Warrant was valid and supported by probable cause. Also after inspection, the assumption that there was only one apartment on the third floor was reasonable albeit incorrect. A literal reading of the warrant indicates authorization to search the entire third floor. Was this warrant reasonably executed. Does this factual mistake invalidate the warrant? We must judge the constitutionality of their conduct in light of the information available to them at the time they acted. Later discovery of facts that show warrant was overly broad does not retroactively invalidate the warrant. There needs to be some latitude for honest mistakes by the police. Facts available to the officers suggested no distinction between the two apartments.

Answer 62

Is the age of a child subjected to police questioning relevant to the custody analysis of Miranda? Kid in this case (middle schooler) is a problem kid has been questioned by police multiple times recently about nearby break ins and thefts. Age does affect the custody analysis, as long as the officer is aware of it, in this case they were at a middle school so he was aware.

Answer 63

Car with guys in it is pulled over, lights were burnt out. Driver could not produce driver’s license. Asks if he can search the car, driver says sure go ahead and then finds three checks that had been stolen from a car wash. In order to rely on consent prosecutor must prove that the consent was freely and voluntarily given. Determined from the totality of the circumstances. Cannot be coerced. Account must be taken of subtly coercive police questions as well as vulnerable subjective state of person consenting. Defendant does NOT need to be warned that they have the right to refuse. Narrow holding, only when subject of search is not in custody and the State attempts to justify a search on the basis of his consent the 4A and 14A require that it demonstrate that consent was in fact voluntarily given and not the result of duress or coercion express or implied. Subject’s knowledge of a right to refuse is a factor to consider but it is not required.

Answer 64

Police called to apartment for a domestic violence issue. GF consents for police to search apartment. She refers to it as “our” apartment and she had clothes and furniture there. Unclear if she currently lived there or use to. They found BF and drugs in the apartment and they arrest him and seize the drugs as evidence. Did GF have common authority over the apartment and the right to consent to a search? In this case the consent was ok. Additional facts are that she had moved out a month prior. Also her name was not on the lease and she did not contribute to the rent. HOWEVER, the important issue is whether is was REASONABLE for the police to presume she had the ability to consent, they thought she resided there. This is not blanket acceptance that anyone can consent but the context matters. The question is whether the police were acting reasonably.

Answer 65

Should evidence pertaining to discovery and condition of victim’s body be admitted if it would have inevitably been discovered even if no violation of the constitution or statutory provision had taken place? Young girl was kidnapped from a YMCA and then murdered. Officer learned of location of body through improper conversation with suspect that violated 5A. This evidence does not need to be suppressed. People were actively searching for this body nearby it would have been found anyway. If prosecution can establish by a preponderance of the evidence that information would ultimately or inevitably be discovered by lawful means then the deterrence rationale for suppressing evidence has so little basis that the evidence should be received. In this case it is clear that the search parties were approaching the actual location of the body, they were probably about to find it independently.

Answer 66

What about the application of the automobile exception to the search of a closed container in the trunk of a car? No, they may seize it but must hold it until they obtain a search warrant.

Answer 67

Miranda warnings must be given regardless of the severity of the offense. Even for an arrest from a traffic stop. Police are not aware at the point of arrest whether this is going to be a misdemeanor or a felony. However still not required to read Miranda rights until the point of arrest.

Answer 68

Was it ok for the government to wiretap a phone booth and use it against a guy as evidence without a warrant? No, he had an expectation of privacy in the phone booth and society is ready to recognize that expectation as reasonable. The test here is 1) whether someone would have a subjective expectation of privacy and 2) whether society is prepared to recognize that expectation as reasonable. Home is obviously protected and conversations in the open are obviously not. In a phone booth when you close the door it is reasonable to assume your conversation is not accessible to the public.

Answer 69

Questions about warrantless arrest under 4A. Watson has stolen credit cards. The public safety and the due apprehension of criminals charged with heinous offences, imperiously require that felony arrests should be made without warrant by officers of the law. Ok to arrest with probable cause but no warrant.

Answer 70

Officers are generally supposed to knock on the door of a dwelling before attempting forcible entry. However, this does not mean there needs to be a rigid announcement that ignores other law enforcement interests. But can the Wisconsin Supreme Court declare that police are never required to knock? No, 4A does not permit a blanket exception to the knock and announce requirement for felony drug investigations. The issue here was the concern that a guy in his motel room would quickly flush his drugs if police knock at the door. This is not a good enough reason to generalize to all situations, courts need to evaluate the facts and circumstances in every situation for this issue individually. In order to justify a no knock entry police must have a reasonable suspicion that knocking and announcing presence under particular circumstances would be dangerous or futile or would allow for destruction of evidence.

Answer 71

Before the Child Protection Act of 1984 rendered it illegal, Keith Jacobson, the petitioner, purchased a magazine including photographs of nude minors. In 1985, government agencies began investigating Jacobson's interest in child pornography. Over the course of about 2 ½ years, they sent him mailings from 5 fictitious organizations and one non-existent pen pal all promoting sexual liberation and challenging government censorship. After Jacobson was somewhat responsive, a government agency attempted to sting him by selling him child pornography which he purchased, resulting in his arrest and conviction. Did the prosecution against Jacobson prove, beyond a reasonable doubt, that agencies of the United States Government did not incite his violation of the Child Protection Act? No. The Court determined that, the prosecution was unable to prove, beyond a reasonable doubt, that Jacobson was inclined to commit the criminal act of purchasing child pornography independent of government interference. Doubt stems from the fact that government agencies may have actually encouraged Jacobson to break the law in their effort to prosecute him. Since the Court found that the prosecution failed, the decision of the Court of Appeals and Jacobson's conviction were reversed.

Answer 72

Should courtroom identifications of accused be excluded from evidence because accused was exhibited to witness before trial without notice to and without accused’s appointed counsel? Yes, right for lawyer to be present during identification is essential under 6A. Eyewitness identification is ripe for error. Both Wade and his counsel should have been notified of the impending lineup and counsel’s presence should have been a requisite to conduct of the lineup, absent an “intelligent waiver.”

Criminal Procedure Flashcards

Cases (96 cards)