Criminal Procedure (2) Flashcards
(124 cards)
1
Q
What does the 4th amendment say?
A
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but ok probable cause, supported by Oath and affirmation, and particularly describing the place to be searched and the persons or things to be seized
2
Q
When does a person have standing under the 4th Amendment?
A
They have an expectation of privacy in the place to be searched or the items to be seized.
3
Q
Only searched conducted by who are protected under the 4th amendment?
A
Only government action.
*gov may not circumvent the 4th amendment by enlisting private individuals to conduct a search.
*private individuals can do on their own with no 4th amendment violation.
4
Q
When does an unreasonable search or seizure occur?
A
When the government (1) invades a place protected by a reasonable expectation of privacy or (2) physically intrudes upon a constitutionally protected area (persons,houses,papers, or effects) for the purpose of gathering information.
5
Q
What are some technological devices which use of these devices constitutes a search under the 4th amendment?
A
- attaching device to someone’s body without their consent
- collecting cell-site location info records from wireless carries to track their whereabouts
- gps tracker on someone’s car
- use of sense-enhancing technology that is not in use by general public to explore details of a dwelling unviewable without intrusion
- ease-dropping on public pay phone
*** technology available to the public is NOT a search.
6
Q
Who can claim a 4th amendment right to the home?
A
People with the immediate right of possession of the dwelling which as apt or dormitory or hotel.
7
Q
What is the cartilage and is it protected under the 4th amendment?
A
The area immediately surrounding the home and yes it is covered under the 4th amendment.
8
Q
How do you determine if an area is within the cartilage of the home?
A
Consider four factors:
- Proximity of the area to the home (porch, patio, backyard)
- Is the area included within an enclosure surrounding the home
- What is the area used for (traditional residential purposes?)
- What steps have been taken by the resident to protect the area from observation by a passerby?
9
Q
Are open field protected under the 4th amendment?
A
Not protected. No reasonable expectation of privacy. EVEN IF you have no trespassing signs and fences.
This area includes the remaining unprotected real estate that is not the cartilage.
10
Q
Does an overnight have an expectation of privacy under the 4th amendment?
A
Yes. A reasonable expectation of privacy in at least the area of the home to which the guest has permission to enter.
**could of house does not count.
Business invitee has no expectation of privacy.
11
Q
Business premises can have administrative searches. Prisons are not protected under 4th amend.
A
12
Q
***note Trespass by the gov. onto property does not necessarily make a 4th amendment violation. Ex: no expectation of privacy in open fields even if it would be a common-law trespass.
A
13
Q
What must a PO have in order to stop an automobile?
A
Articulable Reasonable Suspicion of a violation of the law.
*911 call provides RS
14
Q
Stopping a lm automobile is a seizure of the driver and passengers.
A
15
Q
What is needed for a checkpoint to be constitutional?
A
Must be based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles.
No reasonable individualized suspicion required.
16
Q
Which roadblocks are constitutional and unconditional?
A
- roadblocks for alcohol is ok
- roadblocks for drugs unconstitutional
- Border patrol checks to enforce immigration is ok and they can stop anyone.
** note on boarder checks, if a check is NOT AT THE BORDER all cars can be stopped under immigration law but you cannot randomly select cars without a particularized and objective basis.
17
Q
When are checkpoints to search for a witness reasonable?
A
As long as:
- The checkpoints primary law enforcement purpose is to elicit evidence to help them apprehend other individuals (not car occupants)
- The stop advanced a public concern and
- The police appropriately tailored their checkpoint stops to fit important criminal investigatory need and to minimally interfere with the liberties of the 4th amendment
18
Q
Persons and their attributes. What is
Protected?
A
Physical characteristics unprotected (handwriting, voice sample, DNA)
DNA is a routine part of booking which is reasonable under 4th amendment.
Blood is protected and requires warrant.
No expectation of privacy in conversations with government informants.
19
Q
How is the constitutionality of blood samples determined?
A
Reasonableness of the blood draw is determined on a case-to-case basis and based a the totality of the circumstances.
20
Q
When is wiretapping constitutional?
A
When one party consents to the wiretapping.
21
Q
When is the use a ‘fly over’ a search?
A
- constitutional if in navigable airspace.
- helicopter: viewing I a search if at an altitude from which viewing was rare in the local area
22
Q
When is a canine stiff unconstitutional?
A
If it involves a physical intrusion onto constitutionally protected property.
Not a violation in public.
Without physical intrusion the use of drug sniffing dogs does not violate a reasonable expectation of privacy.
23
Q
Is there an expectation of privacy in information voluntarily provided to 3rd parties?
A
No.
Ex: bank teller, telephone company.
***cannot use 3rd party records to detect a persons movements for at least 7 days
24
Q
What is a field test and is it constitutional?
A
A test performed on a substance to determine if the substance is contraband is not a search under the 4th amendment.
25
What is the search warrant requirement?
A valid warrant must be issued by a neutral and detached magistrate based on PC and must be supported by oath or affinity and must described the places to be searched and the items to be seized.
26
What is probable cause?
More than a reasonable suspicion that evidence of illegal conduct will be found. Does not require certainty. Can be found by:
- A POs personal observations
- Information from a reliable, known informant than can independently be verified.
- Evidence seized during stops based on RS,
- Evidence discovered in plain view
- Evidence obtained during consensual searches
27
When can a (D) attack the truthfulness of an affidavit?
(D) can challenge a facially valid warrant only when the (D) can establish, by a preponderance of the evidence that (1) the affidavit contained false statements that were made by the accusing knowingly, intentionally, or with reckless disregard for their truth; and (2) the false statements were the necessary to the findings of PC.
28
When can PC be found through an informant?
Courts with use the TOC to determine whether the information provided by a police informant is sufficient to create PC.
** no need to know their identity
29
What is the particularity requirement for a search warrant?
The warrant must describe with particularity the place to be searched and the items to be seized.
30
What is an anticipating warrant?
Can use a warrant if there is PC to believe that a triggering event will occur and if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
31
Can a warrant search a 3rd parties property who is not apart of the crime?
Yes
32
How should a warrant be executed?
By a PO
Timely
Knock and announce
33
What happens if a PO does not knock and announce?
PO should knock and announce his presence before entering.
Failure does not require the suppression of evidence.
Might have exceptions to enter without knocking and announcing due to belief of danger or destruction of evidence.
34
What is the plain view doctrine?
Any evidence of a crime, instrumentalities or fruits of a crime or contraband found in plain view while executing a warrant may be seized.
PO seizing but have lawful right to access or observe the item.
Incriminating nature must be immediately apparent without the need to move the evidence
35
Can you detain people during the execution of a warrant?
PO can temporarily seize all people present to promote officer safety and prevent the destruction of evidence.
May only detain for a reasonable time.
Can pat down putter clothing if PO have RS to believe such persons pose a threat to officers.
CANNOT search inside clothing or personal property (purses etc.)
36
Can PO question a detained person during the execution of a warrant or does this require Miranda Warnings?
Can question without violating the 4th amendment so long as the questioning does not extend the duration of the search and detention. If it does Miranda necessary.
37
What is required to get a search warrant authorizing a wire tap?
PO must show:
- it will be limited to a short period of time
- demonstrate PC that a specific crime has been or is about to be committed
- name the person or persons to be wiretapped
- describe with particularity the conversation that can be overheard and
- include provisions for the termination of the wiretap.
* convo must be shown to the court after the wiretap.
* convo in public holds to expectation
of privacy
38
What is the Search Incident to a Lawful Arrest exception to the search warrant requirement?
Warrantless search is valid if it is reasonable in scope and if made incident to a lawful arrest.
If the arrest is invalid any search made incident is likewise invalid.
** if a suspect is stopped for a traffic offense and give me a citation but not arrested, then there can be no search incident to lawful arrest.
39
What area can be searched incident to a lawful arrest?
Under he chimed standard, can search the person and the immediate surrounding area (wingspans) from which a weapon may be concealed or evidence destroyed.
40
When can you conduct a protective sweet of the home?
Incident to a lawful arrest. Limited to visual inspection of those places immediately adjacent to the place of arrest in which a person might be hiding.
41
What is the timing of a search incident to arrest?
Temporal unity. Search incident to arrest must happen with the arrest.
42
What is the scope of search for a search incident to a lawful arrest?
Can search pockets and open containers found inside pockets and contains immediately associated with the person (bag, purse, luggage).
* CANNOT search into phone
43
Does a person have to blow into breathalyzer upon search incident to arrest?
Yes. But cannot draw blood.
States can punish for not blowing but cannot punish for refusal to give blood.
44
What is the automobile exception to the search warrant requirement?
No warrant is required to search a vehicle if PO have PC to believe that it contains contraband or evidence of criminal activity.
45
What areas can be searched under the automobile exception?
Anywhere that may contain contraband including trunk and locked containers so long as PO have PC.
46
What is the reason behind the automobile exception to the warrant requirement?
Automobiles can be moved and people also have a diminished expectation of privacy as automobiles are significantly regulated by the state.
47
Automobile exception notes:
- Can destroy upholstery and dismantle gas tank if the incriminating evidence could be hidden in those places
- Can extend to passenger and mobile homes
- Can seize evidence in plain view
- CANNOT search a vehicle within the curtilage
48
Pre-textual stop: can stop a vehicle if they violated the law and later get PC search for drugs or something else.
49
What containers can be searched under automobile exception?
PC extends to containers and compartments that reasonably could hold the evidence they are searching for. If the PC is only for one container then they can only search h that and not the entire car.
50
If PC to search the trunk then they can search the entire trunk and every container.
51
For warrantless search of automobile need to demonstrate either:
1) that the arrestee is within reaching distance of the passenger compartment at the time of search and as a result may pose an actual and continuing threat to the officers safety or a need to preserve evidence from being tampered with by their arrestee or
2) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.
**limited to passenger compartment and do not include a close truck of a car
52
Can an impounded vehicle be searched?
Can be searched including closed containers such as a glove box or a backpack as part of a routine inventory search, even days after if PC to believe incriminating evidence is still inside.
Must be conducted pursuant to a preexisting standardized policy of the law enforcement agency.
53
When is a protective sweet of an automobile allowed?
If the PO lawfully stops an act, they can make a protective sweep of the cars passenger compartment based on RS that the driver or passenger possesses dangerous weapons on their persons or inside the car.
*Limited to places where weapons would be
54
What is the plain sense exception to the warrant requirement?
If the incriminating nature of evidence or activity detected is plainly evident to an officer through her sense from a lawful vantage point without any additional searching. (Plain view extended to senses hear, small, feeling)
When evidence is immediately apparent PC then exists without any further searching.
55
What is the existent circumstances exception to the warrant requirement?
The warrantless entry into a home or business is presumed unlawful unless the government demonstrate both PC and exigent circumstances.
TOC test
PO can secure a premises for a reasonable time to obtain a warrant. PO cannot create the exigency.
56
What are some exigent circumstances?
Hot pursuit
Imminent destruction of evidence
Promoting the safety of officers or heath and safety of people.
57
What is hot pursuit under exigent circumstances exception?
Can enter without a warrant to arrest a suspect if the TOC shows:
- an emergency
- a need to act before it is possible to obtain a warrant.
* officers in hot pursuit may enter a suspects home.
* misdemeanors require a warrant to enter!!
58
What is imminent destruction of evidence under the exigent circumstances exception to the warrant requirement?
Can conduct a warrantless search to prevent the imminent destruction of evidence without violating the 4th amendment if officers reasonably believe it’s about to be imminently destroyed.
59
What is the promotion of safety to officers and the public under the exigent circumstances exception to the warrant requirement?
Can enter a persons home without a warrant to assure the health and safety of the person inside if there is a reasonably objective basis to believe the health or safety of the person is in danger.
Can also search for weapons as they might harm an officer.
CANNOT enter to get a deceased person if they know they are dead— need a warrant.
60
Are warrants needed to search pretrial detainees, prisoners, probationers and parolees?
- detainees and prisoners can be searched without a warrant, even body cavity search and DNA
- probationers and parolees can be searched without a warrant if such search are a condition of their probation or parole.
61
What is the stop and frisk exception to the warrant requirement? (Terry Stop)
Terry stops allows a brief seizure without an arrest warrant based on RS based on articulable facts that the detainees are or were involved in illegal activity.
Uses a TOC test.
***if separate RS to believe armed and dangerous the officer may frisk
62
When can an officer frisk under a Terry stop?
If there is separate RS to believe the suspect is armed and dangerous the officer may frisk.
63
What is a stop?
A limited and temporary intrusion on an individuals freedom of movement short of a full custodial arrest.
64
What is a frisk?
Limited search. A PO without PC may still make a limited search of a person he has lawfully stopped such as a pat down of the outer clothing if he has RS that the person was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others.
65
What is reasonable suspicion?
More than a mere hunch and must be based on specific, articulable facts supporting the reasonable suspicion that a suspect is committing or about to commit a crime.
66
Can an anonymous informant y provide RS?
Yes only if there is sufficient descriptive and predictive info.
67
What is the plain feel exception?
If an officer conducts a valid frisk and feels an object that has a physical character that makes its identify immediately obvious (like a gun/drugs) then the PO may seize the evidence.
PO may briefly seize items if they have RD that the item is or contains contraband.
68
What is a Terry stop and frisk of a car?
With a lawful stop, PO may conduct a search of the passenger compartment for weapons if:
1) the PO possesses a reasonable belief that the suspect is dangerous and may gain immediate control of weapons and
2) the search of the passenger compartment is limited to those areas in which a weapon may be placed or hidden.
***PO can order passengers out and frisk the passenger
69
What are the time, place and investigative manner restrictions on Terry stops?
- Terry stop must be temporary and last no longer than necessary to effectuate the purpose of the stop (officer to confirm or dispel RS)
- cannot move the detainee a significant distance from the initial stop without consent
- PO can request detainee identify himself. (Failure to do so can result in arrest)
70
If a PO holds a suspect beyond the amount of time necessary to effectuate the purposes of a Terry stop then the seizure becomes and arrest and must be supported by PC.
71
PC can be developed. If the PO later develops PC they can make an arrest and conduct a full search incident to the arrest.
72
What is the plain view exception to the warrant requirement?
Items in public view may be seized without a warrant bc one cannot have a reasonable expectation of Privacy in things exposed to the public
73
When can items in plain view can be seized in the search of a house?
When three things are met:
1) officer is lawfully on the premises
2) the incriminating nature of the item is immediately apparent
3) the officer has lawful access to the item
74
What is the ‘consent search’ exception to the warrant requirement?
Voluntary consent does not require either a warrant or any level of suspicion.
Search limited to what a reasonable person would have anticipated in giving such consent.
Permission must be given voluntarily!
PO CANNOT false say they have a search warrant to get in
PO don’t have to tell you that you don’t have to consent
75
Under a consent search what can 3rd parties consent to?
Can consent to search of property that she owns, occupies or has control over. Can’t consent to Property of the (D) unless there is an agency relationship.
Jointly controlled area depends on whether the (D) is present at the time of the search.
Landlords cannot allow PO in tenants home
Hotels can’t let PO in room
Parents consent for children even if 18
76
What is an administrative warrant required for? (Administrative, special needs, Inventory searches)
Administrative warrants are generally required for no consensual fire, health, safety inspections of residential or private commercial property.
77
What level of suspicion is required for an administrative warrant?
PC less stringent. Need evidence of an existing statutory or regulator violation or a reasonable plan supported by a valid public interest.
78
You cannot use administrative searches to do what?
Investigate criminal activity.
79
The following admin searches can be validly made without a warrant for an important non law enforcement purpose:
1 - search of people entering airplane boarding area as long as passenger can prevent the search by not boarding the plane
2 - searches of businesses in highly regulated industries such as liquor stores, gun shops, strip mining operations, automobile junkyards.
3 - students in public schools
4 - special needs searches (drug test railroad employees involved in accident / student athletes during athletic season)
5 - inventory searches such as impounded vehicles
6 - routine international border searches
7 - vehicle checkpoints
8 - factory search to determine citizenship
9 - search of gov. Employees desk if RS of work related misconduct
10 - searches for cause of fire
80
When can students be searched by public school officials without a warrant?
If based on reasonable grounds and the measures adopted for the search are reasonably related to the objective of the search and not excessively intrusive in light of the age and security of the student and the nature of the infraction.
81
For routine intentions border admin searches without a warrant what is needed?
Can stop people without warrant and not suspicion needed. Non routine searches such as body cavity search require RS.
82
When is a person considered seized?
Objective test: when under the TOC they are not free to leave.
Question is whether a reasonable person would believe they were free to leave and could decline the officers requests or otherwise terminate the encounter.
*Should be some physical force by PO or show of authority by PO
83
When can arrest separates be issue sand by whom?
Must be issued by a neutral and detached magistrate upon a finding of PC that a crime had been committed and that this person was involved in committing the particular crime.
84
*** arrest without a warrant is OK and NOT illegal if the PO making the arrest has independent PC for making the arrest.
85
When can PO enter a home with arrest warrant?
Arrest warrants implicitly authorize the entry into the arrestees home if the PO have reason to believe that the arrestee is present.
** PO CANNOT search for the individual of a search warrant in the home of a 3rd party without a search warrant for that home.
86
Any evidence in plain view or discovered on the (D) during search incident to arrest is admissible at trial.
87
Are arrest warrants needed to arrest in public?
No. Even if they have time to get one.
* individuals cannot retreat to their home to prevent a valid arrest
88
When can a someone arrest for a crime committed in front of them?
A PO or private citizen has the right to arrest without a warrant if either a felony or misdemeanor is committed in the arresting parts presence
89
When can a PO arrest if he didn’t see the felony?
Anyone whom he has PC to believe has committed a felony.
Private individual can only make an arrest if a felony has actually been committed and the private individual reasonable believes that the person arrested is guilty.
90
Evidence seized due to an unlawful arrest may be suppressed at trial
91
What is the exclusionary rule?
Evidence obtained in violated of the 4th amendment is inadmissible at trial and will thus be excluded.
92
When does the exclusionary rule not apply?
Before or after a criminal trial. Not prohibited from admitttng during pretrial proceedings or sentencing hearings, parole hearings, grand jury, or administrative hearings.
93
What is the fruit of the poisonous tree?
Exclusionary rule applies not only to evidence initially seized as the result of the primary government illegality but also secondary derivative evidence discovered as a result of the primary taint.
94
What are some exceptions to the exclusionary rule?
- inevitable discovery rule
- independent source doctrine
- attenuation principle
- good-faith exception
95
What is the inevitable discovery exception to the exclusionary rule?
If the prosecution can prove that the evidence would have been inevitably discovered in the same condition through lawful means it can be admitted.
96
What is the independent source doctrine exception to the exclusionary rule?
If the evidence was discovered in part by an independent source unrelated to the tainted evidence.
97
What is the attenuation principle exception to the exclusionary rule?
If the chain of causation between the primary taking and the evidence has been so attenuated as to “purge” the taint it can be admitted.
98
What is the good faith exception to the exclusionary rule?
If a PO reasonably believes on some objective factor in engaging in a search or seizure that a court later determines to have been a 4th amendment violation, the evidence the officer searched or seized will generally not be suppressed.
Limited to the objective good faith of a reasonable PO
** ex: acting on good faith for a facially valid warrant later determined to be invalid.
*** a computer database or existing law later declared unconstitutional.
99
What are some situations in which the good faith exception to the exclusionary rule would NOT apply?
- no reasonable officer would rely on the affidavit underlying the warrant
- the warrant is invalid on its face
- the warrant was obtained by fraud
- the warrant was improperly excluded
100
Does the exclusionary rule apply to violations of the knock and announce rule?
No.
101
In court identification of the (D) is not fruit of an unlawful detention.
102
What does the 5th amendment say for the privilege against self incrimination?
No person shall be compelled in any criminal case to be a witness against himself.
Applied to states through the 14th amend.
103
Who cannot assert the privilege against self incrimination?
Entities
104
The 5th amend against self incrimination applies only to testimonial statements. What is considered testimonial?
Written, oral, or action.
105
Who is someone the 5th amendment right against self incrimination does not usually apply to?
An individual who voluntarily prepared business papers or to reviews required by law to be kept such as tax returns.
106
Are incriminating statements made during a court-ordered psychiatric examination admissible?
Generally not admissible at trial unless the (D) is given Miranda warnings before the interview and waives his rights.
107
Who does a person invoke the 5th amendment privilege and what is required?
Must establish only a realistic possibility of potential self-incrimination. An only invoke to specific questions not the whole proceeding.
(D) invokes simply by not taking the stand. Cannot be compelled to take the stand either. Cannot tell the jury the (D) refused to take the stand.
108
What does immunity do to invoking the 5th amendment privilege against self incrimination?
Can remove the witnesses ability to invoke the privilege.
If granted the (D) or witness must testify or comply with subpoena or failure to do so can result in contempt of court.
109
What is transactional immunity?
Fully protected from prosecution for crimes related to the testimony.
110
What is derivative use immunity?
The prosecution cannot use any incriminating testimony given or evidence produced pursuant to the order of immunity or evidence derived from that immunity.
111
What is federal and state immunity?
Another jurisdiction can’t use the testimony to prosecute the (D)
112
What is an involuntary confession under the 5th amendment?
Is an incriminating statement that was not the product of the (D)s free will or rational capacity to decide to confess as a result of law enforcement officer misconduct
113
What is used to determine if a confession is voluntary?
TOC test: look at
- (D) characteristics (education level, physical and mental state at time of confession, prior experience with judicial system)
- the specific conduct interrogating officers used to obtain the confession.
114
What types of things are usually considered involuntary for a confession?
Threats or actual physical force
Psychological coercion, lies
PO exploitation by using (D) vulnerabilities such as mental ill was
Promises by law enforcement
115
What is the basis of Miranda?
A suspect had the right not to be compelled to make incriminating statements in the police interrogation process. Any statements obtained as a result of a custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to ensure the privilege against self incrimination.
116
When must miranda warnings be provided?
When there is a custodial interrogation.
117
What is considered ‘custodial’ for purposes of Miranda?
Formal arrest or restraint of freedom of movement to a degree associated with a formal arrest.
Would a reasonable person in the (D) shoes believe he could leave given the TOC?
Juveniles: would a reasonable juvenile of the (D) age believe that he was in custody based on the TOC ( age, education, mental condition)
118
What is considered ‘interrogation’ under Miranda?
Questions, words, or actions that PO know or should know are reasonably likely to elicit an incriminating response.
119
When does compliance with Miranda attach to statements?
Anything the (D) says before being informed of his Miranda rights are inadmissible.
120
What must Miranda warnings inform suspects of?
1) Right to remain silent
2) any statement can and may be used against them at trial
3) have the right to an attorney and
4) that an attorney will be appointed if the (D) cannot afford one
121
What is required for Miranda to be waived?
(D) must knowingly, intelligently and voluntarily waive.
**silence is not waiver
Knowingly and intelligently: sufficiently given rights and sufficiently understood.
Voluntary: wait ed without improper threat/promise/coercion
122
Right to remain silent or right to counsel must be made unequivocally. What does this mean?
In a way that is clear and unambiguous
123
What happens if a (D) invokes the 5th amendment right to silence?
All questioning must stop
***IF the (D) starts talking the PO can readminister Miranda and talk to him.
124
What happens is the (D) starts talking to PO after invoking right to counsel?
THEY CANNOT TALK TO HIM
Questioning must stop until the (D) attorney is present and any subsequent waiver of Miranda without the attorney present is invalid if the (D) remains in custody.
