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Flashcards in Criminal Procedure Deck (59)
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1

 

Fourth Amendment Inquiry 

 

  1. Was the search executed by a gov't agent ?
  2. Is the area or item a protected item?
  3. Was there physical intrusion / violation of the reasonable expectation of privacy? 
  4. Does the defendant have standing to challenge the search? 

 

All four questions are part of the Fourth Amendment inquiry. 

2

 

Government Agent 

 

For Fourth Amendment purposes, a government agent is any of: 

  1. Publicly paid police, on or off duty; 
  2. Private citizens acting at the direction of the police; 
  3. Private security guard, only if deputized with the power to arrest; 
  4. Public school administrators.

3

 

Items/Things Protected by Fourth Amendment 

 

PERSONS 

i.e., bodies 

HOUSES 

i.e., home, hotel room, curtelage to home where home life extends 

PAPERS 

i.e., personal correspondence 

EFFECTS 

i.e., personal belongings, backpacks, purses, etc. 

 

4

5

6

 

Unprotected Items under the Fourth Amendment

 

"POGOFAP"

HYSICAL CHARACTERISTICS 

DORS 

ARBAGE 

PEN FIELDS

INANCIAL RECORDS 

IR SPACE 

EN REGISTERS 

7

 

Reasonable Expectation of Privacy

 

  1. Actual or subjective expectation of privacy in the area searched or the items seized; and 
  2. Expectation is one that society recognizes as reasonable. 

 

  • Note: presumptively unreasonable to use a device not in public use to explore the details of home that officers couldn't otherwise have known about without physical intrusion (e.g., thermal imaging). 

8

 

Standing to Challenge a Fourth Amendment Search

 

YES

  • Owner of the premises; 
  • Resident of the premises; 
  • Overnight guests, as to place they can be expected to access

NO

  • Uses of a residence solely for business purposes (not overnight guests); 
  • "Effect" (e.g. purse) owned by someone else; 
  • Passengers in a car 
    • *NY: passengers have standing in order to challenge the possession of weapons. 

9

 

Valid Warrant Requirements 

 

  1. Issuance by neutral and detached magistrate. No bias in favor of prosecution. 
    • NY: may be obtained by phone/email and made into a written search warrant. 
  2. Supported by probable cause and particularity. Fair probability that contraband or evidence will be found in the place search.
    • Hearsay admissible to support. 
    • Anonymous tips OK as basis, if police corroborate enough detail to allow, on totality of circumstances, a common sense practical determination of probable cause. Descriptions of a person alone are insufficient. 
    • NY: Rule on anonymous tips is the Aguilar-Spinelli test. Gov't must establish (1) informant's reliability and veracity; (2) basis of knowledge. If no basis of knowledge, police must use its own observations that confirm sufficient detail suggestive of or related to the criminal activity in question.
  3. Specifies ITEMS TO BE SEIZED AND PLACE TO BE SEARCHED. 

10

 

Good Faith Exception to Defective Search Warrant

 

  • NY DOES NOT FOLLOW THIS RULE. 
  • The good faith execution of a police officer will overcome a defective search warrant unless: 
  1. egregiously lacking in probable cause; 
  2. facially deficient in particularity; 
  3. knowing or reckless material falsehoods in supporting affidavits (not including falsehoods that were negligent or those that were not necessary to the probable cause determination); or 
  4. magistrate biased in favor of prosecution

 

11

 

PROPER EXECUTION OF SEARCH WARRANT

 

  1. Compliance with terms and limitations (areas and items authorized) 
    • Detention of occupants within or immediately outside the residence is okay but the warrant doesn't by itself give the police the right to search such persons. 
  2. Knock and Announce Rule 
    • Required unless there is a reasoanble belief that it is futile, dangerous, or would inhibit investigation. 
    • Never causes the exclusionary rule to apply (NY hasn't decided this yet). 

12

 

Exceptions to the Warrant Requirement 

General List 

 

"ESCAPIST" 

   E xigent circumstances 

   S earch incident to arrest 

   onsent 

   utomobile 

   lain view 

   nventory 

   pecial needs 

   erry "stop and frisk" 

13

 

Warrant Exceptions

Exigent Circumstances 

 

  1. Evanescent Evidence.  Evidence that would dissipate or disappear in the time it would take to get a warrant. 
    • Blood alcohol is not automatically in this category; 
    • NY: no common law right to perform blood/chem tests except a NY vehicle and traffic law, in which operator of vehicle is presumed to have consented to such a test. 
  2. Hot Pursuit of Fleeing Felon. Allows PO to enter home of a suspect or third party; and then any plain view evidence is admissible. 
  3. Emergency Aid. PO may enter residence where objectively reasonable basis to believe the person inside is in need of emergency aid in order to address/prevent injury; and then any plain view evidence is admissible. 

14

 

Warrant Exceptions

Consent 

 

  • Voluntary & intelligent (no need to inform of the right to refuse); 
  • Extends to all areas for whcih a reasonable officer wold believe permission to search was granted. 
  • Apparent authority, if reasonable, is valid consent. 
  • Shared premises: any resident can consent to search of common areas, but if co-tenants who are present disagree about search, objecting party prevails, as to areas over which they share dominion and control. 

EX - Mom who regularly cleans son's room and makes his bed can give consent to search the bed since she has access to it. Probably couldn't give consent to open a locked box under the bed, however. 

15

 

Warrant Exceptions 

Search Incident to Arrest

 

Search of the person must be: 

  • Incident to a lawful arrest; 
  • Contemporaneous in the time and place of arrest; 
  • Of the wingspan (body, clothing, containers within immediate control) (regardless of offense). 
    • NY: To search container within the wingspan, officer must suspect the arrestee is ARMED. 

Automobile searched incident to lawful arrest: 

  • Can search interior cabin, incuding closed containers, but not the trunk. 
  • Once arrestee is secured, the search is only okay if PO expects to find evidence relating to the crime for which arrest was made. 
  • NY: once D is outside the car, PO can't search containers in the car. 

16

 

Warrant Exceptions

Automobile Exception

 

  • Requires probable cause to believe contraband or evidence of a crime will be found in vehicle. 
  • Can search entire vehicle and open any package that may reasonable contain items for which there was probable cause to search. 
  • Justification - vehicles' ready mobility and individuals' lesser expectation of privacy in their vehicles as opposed to their houses. 

 

(no need for probable cause to pull over -- unrelated traffc infraction is okay, as long as cause is required before initiating search). 

17

 

Warrant Exceptions

Terry Stop and Frisk

(Procedure)

 

  • TERRY STOP: A brief detention (seizure) for the purpose of investigating suspicious conduct. Seizure in the sense that a reasonable person would not feel free to leave. 
    • Police pursuit = seizure only if the person submits to P.O.'s authority by stopping, or if he is physically restrained. 
      • NY: Police pursuit itself is a seizure.
    • Traffic stops = driver + passengers are seized. P.O. can order persons out of the car; dog sniffs okay if not unreasonably prolonged). 
  • TERRY FRISK: Pat down of body & outer clothing for weapons, justified by the belief that the suspect is armed and dangerous. 
    • Can seize a weapon or contraband, if can tell without manipulating the object. NY - seizure only okay if it reasonably appears to be a weapon. 
    • Car frisk, if P.O. thinks suspect is armed, but only cabin where weapons can be hidden. 
    • Protective sweep: in home arrest, sweep to look for criminal confederates. 

18

 

Warrant Exceptions

Terry Stop and Frisk

 

Requires reasonable suspicion (something less than probable cause) 

*Tips with corroborating information to establish reliability are okay. Just description of a person insufficient. 

  1. Terry Stops: Reasonable, articulable facts that inform P.O.'s belief that criminal activity is afoot. Objective standard only; subjective intent irrelevant. 
  2. Terry Frisks: Specific, articulable facts that suspect is armed and dangerous. Not a search for criminal evidence; just about safety. 
  3. Protective Sweeps: No probable cause needed to look in areas adjoining place of arrest from which an atack could be launched, when making an in-home arrest. 
    • To justify a weep of more remote areas, needs additional facts sufficient to conclude that an individual who may threaten safety is present in area swept. 

19

 

New York:

Non-Arrest Detentions 

 

  • Request for info: any reason except on "whim or caprice" (refusal to respond / running away is not probable cause to arrest). 
  • Common law right to inquire: founded suspicion the criminal activity is afoot. Detention short of seizure; can ask Qs; explanations by suspect require release. 
  • Forcible stop/dentention/frisk: reasonable suspicion that the suspect has/is committing a crime. "Plain feel" frisk for a weapon. May seize without warrant anything reasonably believed to be a weapon. 
  • Police pursuit = seizure of person. Must be based on reasonable suspicion of crime. 

20

 

Warrant Exceptions

Plain View

 

  1. Lawful access to the place from which the item can be plainly seen; 
  2. Lawful access to the item itself; and 
  3. Criminality of the item is immediately apparent. 

21

 

Warrant Exception

Inventory Searches

 

  • Constitutional provided that the regulations governing them are reasonable in scope; search complies with regulations; and search was conducted in good faith (motivated solely by need to safeguard the owner's possessions and/or ensure officer safety). 
    • Ex. arrestees when booked into jail; vehicles when impounded
  • NY: Warrantless impoundment and inspection of a person's vehicle is valid as an administrative search under the highly regulated motor vehicle industry laws. 

22

 

Warrant Exceptions

Special Needs

 

Non-Law Enforcement Primary Purpose Test 

  1. Drug Testing 
    • ​​Railroad employees after crash; 
    • Customs agents; 
    • Public school children in extracurricular activities. 
  2. Parolees 
    • ​Warrantless, suspicionless searches of home OK as condition of parole. 
    • NY: P.O.'s conduct must have a reasonable/rational connection to duties. 
  3. School Searches
    • ​​Warrantless searches of person and effects to investigate violations of school rules as long as reasonable at inception and not excessively intrusive in light of age/sex and nature of infraction).
  4. Border Searches 
    • ​​Where routine 

23

 

Exceptions to the Exclusionary Rule

 

  1. OK to use evidence to  impeach defendant's testimony on cross-examination 
  2. Knock and announce violations do not apply 
    • NY has not decided about knock and announce rule 
  3. Police error: to trigger rule, police conduct must be deliberate, reckless, or grossly negligent. Erroneously obtained when executing search warrant, if a reasonable mistake, does not trigger the exclusionary rule. 
  4. Fruit of the poisonous tree: may be admitted if causal link is broken by: 
    • Independent source; 
    • Inevitable discovery; 
    • Attenuation (taint purged by time, intervening events) 

24

 

Eavesdropping 

 

  • No Fourth Amendment protection re speaking to someone wearing a wire. You assume the risk that the party won't keep the conversation private. 

 

  • New York: eavesdropping is a felony. Evidence obtained from unauthorized eavesdropper without warrant is inadmissible except in a criminal or civil case against eavesdropper. BUT -- any person may record his own conversation with another person without notice, or authorize a third party to record without notice. 

25

 

Wiretapping 

 

"Screen Telephone Calls Carefully" 

Warrant must name: 

  1. Suspected persons; 
  2. Time period strictly limited (NY: expire after 30 days in NY) 
  3. Crime (probable cause)
  4. Conversations (decribe which can be overheard) 

NY: If convo incriminates 3rd party, admissible if not party to the convo and premises or area of privacy not invaded. 

26

 

Lawful Arrest 

 

  • Occurs when the police take someone into custody against her will for the purposes of prosecution or interrogation
  • De facto arrest where police compel someone to the station for questioning or finger-printing. 
  • PROBABLE CAUSE NECESSARY. 
  • Arrest can be made for any crime. 
  • Warrants are not required in a public place. They are required in homes. If arresting in a third party's home, requires search warrant for the third party's home AND arrest warrant. 

 

SPECIAL NY RULE: A PRIVATE PERSON CAN ARREST WHEN FELONY HAS BEEN COMMITTED & REASONABLE BELIEF THAT ARRESTEE COMMITTED THIS CRIME, OR ANY CRIME WAS COMMITTED IN FRONT OF PERSON. 

27

 

Constitutional Challenges to Confessions 

 

  1. Fourteenth Amendment due process 
  2. Sixth Amendment right to counsel 
  3. Fifth Amendment Miranda doctrine 

28

 

Due Process Basis for Excluding Confessions 

 

INVOLUNTARINESS: 

  • Confession is the product of police coercion that overbears the suspect's will. 
  • Note that where a D claims that his confession was involuntary, a co-D's confession implicating D is admissible to rebut claim of involuntariness. 
  • NEW YORK
    • Length of interrogation, custody are relevant to voluntariness (Arthur-Hobsen Rule) 
    • When confession refers to multiple crimes, ones not being there tried must be redacted. 

29

 

Admissibility of Co-Defendant's Confessions

Implicating Defendant 

 

Where a defendant is implicated by the confession of a co-D, the co-D's confession will be admitted IF 

  • D's name / participation is REDACTED; 
  • Co-D takes the stand and is subject to cross-examination by D; or 
  • D claims that his own confession was coerced -->  and the co-D's confession wholly admissible to disprove. 

30

 

Sixth Amendment Right to Counsel 

- and suppresson of incriminating statements obtained in violation thereof - 

 

Sixth Amendment right is offense-specific (applies only to interrogations for the charged offense) 

  • EXPRESS CONSTITUTIONAL GUARANTEE THAT ATTACHES WHEN D IS FORMALLY CHARGED.
  • APPLIES AT ALL CRITICAL STAGES (ARRAIGNMENT, PROBABLE CAUSE HEARINGS, POLICE INTERROGATION, PLEA BARGAINING).

Effect on Incriminating Statements Obtained: 

  • Incriminating statements elicited by law enforcement violate the Sixth Amendment if statements are deliberately elicited and did not knowingly, intelligently, and voluntarily waive his rights to have his attorney present.