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Flashcards in Criminal Procedure Deck (125):

What are the four questions that require affirmative answers for the Fourth Amendment to apply?

1. Was the search or seizure (s/s) executed by a GOVERNMENT AGENT?
2. Was the s/s of an AREA or ITEM protected by the 4th Amd?
3. Was there PHYSICALLY INTRUSION on a protected area or a violation of an individual's REASONABLE EXPECTATION OF PRIVACY in a protected area?
4. Did the individual subjected to s/s have STANDING to challenge the conduct?


Who is a government agent?

1. Publicly paid police; on or off duty


Who are potential gov't agents?

1. Pvt citizens ONLY IF they are acting at the directions of the police.
2. Pvt security guards ONLY IF they have been deputized with the power to arrest
3. Public school administrators


Four categories of areas/items protected by 4th Amd

1. Persons
2. Houses (including hotel rooms)
3. Papers, and
4. Effects (personal belongings, backpacks, purses, etc.)


Is curtilage protected?



Unprotected places/items:
Public Observation Generally Obliterates Fourth Amendment Protection

Physical characteristics (voice, handwriting)
Odors that emanate from your car or luggage
Garbage left at the curb for collection
Open Fields
Financial records held by the bank
Airspace; anything that can be seen below when flying in public airspace.
Pin registers


Two ways that s/s by gov't agents can implicate an individual's 4th Amd right:

1. Trespass based test, or
2. Privacy based test.


Trespass based test:

Agent PHYSICALLY INTRUDED on a constitutionally protected area in order to obtain information.


Privacy based test:

Agent's s/s of constitutionally protected area violated an individual's REASONABLE EXPECTATION of pvcy.


To satisfy a privacy based test the individual must show: (two things)

1. an ACTUAL or SUBJECTIVE expectation of privacy in the area searched or items seized; AND
2. that the pvcy expectation was one that society recognizes as reasonable.


To have standing to challenge lawfulness of s/s:

an individual's PERSONAL privacy rights must be invaded, not those of a third party.


Do these people have reasonable expectation of privacy: owners of a premises?



Do these people have reasonable expectation of privacy: residents of a premises?



Do these people have reasonable expectation of privacy: overnight guests?

Always - as to the areas overnight guests can be expected to access.


Do these people have reasonable expectation of privacy: people solely using someone else's residence for business purposes?



Do these people have reasonable expectation of privacy: if they own the property seized?

Only if they have a reasonable expectation of privacy in the AREA from which the property was seized. (Ex. man who hides drugs in g/f purse - no expectation of pvcy in the purse.)


Do these people have reasonable expectation of privacy: if they are passengers in a car?

No reasonable expectation of pvcy in a vehicle in which they are merely passengers.


Standard for warrant issued by a neutral and detached magistrate:

Judicial officer ceases to be sufficiently neutral and detached when her conduct demonstrates BIAS in favor of the prosecution.


Probable cause requires proof:

of a fair probability that contraband or evidence of crime will be found in the area searched.


Use of informants' tips for probable cause:

Police may rely on a tip even if it is anonymous. Sufficiency of the informant's tip rests on the corroboration of the police of enough of the tipster's info to allow the magistrate to make a common sense practical determination that probable cause exists based on a totality of the circumstances.


Magistrate can issue a warrant based on:

a common sense practical determination that probable cause exists based on a totality of the circumstances.


What two things must a warrant specify to satisfy the particularity requirement:

1. The place to be searched, and
2. the items to be seized


Can a warrant that was invalid due to the absence of probable cause be saved by the cops good faith?



Two aspects of whether a warrant was properly executed by the police:

1. Compliance w/ warrant's terms and limitations, and
2. Knock and announce rule (subject to limitations)


In executing a warrant, officers are allowed to search only:

those areas and items authorized by the language of the warrant.


When executing a search warrant officers may detain:

occupants found w/i or immediately outside the residence at the time of the search.


A search warrant must be executed w/i:

10 days of its issuance.


Officers don't have to knock and announce if they reasonably believe that to do so would be:

1. futile
2. dangerous,
3. or would inhibit the investigation.


Eight exceptions to the warrant requirement: ESCAPIST

Exigent Circumstances
Search incident to arrest
Plain View
Special Needs
Terry "Stop and Frisk"


Three types of exigent circumstances:

1. Evanescent Evidence
2. Hot pursuit of a fleeing felon
3. Emergency aid exception


Search incident to arrest:

1. Arrest must be lawful
2. Timing: The search must be contemporaneous in the time AND place of the arrest
3. Geographic scope: The wingspan, which includes the body, clothes, and any containers w/i the arrestee's immediate control - without regard to the offense for which the arrest was made.


Automobiles searched incident to arrest: Permissible scope:

Interior cabin including closed containers, but not the trunk.


Automobiles searched incident to arrest: secured v. unsecured arrestees

Once an arrestee is secured an officer may search the vehicle ONLY if she has reason to believe the vehicle may contain EVIDENCE RELATED TO THE CRIME FOR WHICH THE ARREST WAS MADE.


Standard for consent to search:

Must be voluntary and intelligent.


Scope of consent:

extends to all areas for which a reasonable officer would believe that permission to search was granted.


Apparent authority w/ consent:

Consent obtained from someone who does not have actual authority to consent is still valid if officer reasonably believed that the person had actual authority.


Consent in regards to shared premises:

Any adult resident can consent to search of common areas BUT
if co-tenants who are present on the premises disagree regarding consent to search the common areas the OBJECTING party prevails as to areas which they share dominion and control.


Automobile exception to warrant: Standard:

Officers need probable cause to believe that contraband or evidence of a crime will be found in a vehicle.


Automobile exception to warrant: Where can cops search?

The entire vehicle and they may open any package, luggage, or other container that may reasonably contain the items for which there was probable cause to search.


Automobile exception to warrant: Traffic stops and auto searches:

Officer does not need probable cause to search the vehicle at the time the car is pulled over, provided he acquires it before initiating the search.


Three requirements for seizure of item in 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. The criminality of the item must be immediately apparent.


Two common contexts for inventory searches:

1. Arrestees: when they are booked into jail
2. Vehicles: when they are impounded.


Inventory searches are constitutional provided: (3 things)

1. the regulations governing them are reasonable in scope.
2. the search itself complies with those regulations, and
3. the search is conducted in good faith.


Terry stops:

A BRIEF detention for the purpose of being investigated.


When are you 'seized' for the purposes of he 4th amd?

1. When by a totality of the circumstances a reasonable person would not feel free to leave OR to decline an officer's request to answer questions.


Three things to think about when determining whether an individual has been seized by law enforcement:

1. Whether an officer brandishes a weapon.
2. The officer's tone and demeanor, and
3. Whether the individual has been told she has the right to refuse to consent.


Police pursuit and seizure:

Individual is seized only if he submits to the officer's authority by stopping or if the officer physically restrains him.


Traffic stops: Both the driver and the passenger are seized so:

either can challenge the legality of the stop.


Dog sniffs at traffic stops are permissible if:

the sniff does not prolong the stop unreasonably.


Terry frisks:

Pat down of the body and outer clothing for weapons that is justified be an officer's belief that a suspect is armed and dangerous.


What can you seize at a Terry Frisk?

Something that the officer reasonably believes to be a weapon. OR if the officer finds something she recognizes as contraband WITHOUT MANIPULATING THE OBJECT, she can seize that too.


Car Frisks:

If an officer reasonably believes that a suspect is dangerous he can search the passenger cabin of the suspect's vehicle, limited to those places where weapons may be placed or hidden.


Protective sweeps:

When making an in home arrest, the police may sweep the residence to look for criminal confederates of the arrestee whose presence may threaten the safety of the officer.


Evidentiary standards for Terry stop and frisks?

Reasonable suspicion


Reasonable suspicion w/ Terry stops requires:

specific and articulable facts that inform an officer's belief that criminal activity is present. This is an objective test.


Reasonable suspicion with Terry frisks requires:

specific and articulable facts that suggest a subject is armed and dangerous.


Evidentiary standards in protective sweeps:

With in home arrests officers have authority w/o probable cause or reasonable suspicion to look in areas adjoining the place of arrest for which an attack could be immediately launched.


Warrantless, suspicionless drug testing is okay in what three contexts:

1. Railroad employees following an impact accident.
2. Customs agents responsible for drug interdiction, and
3. Public school kids who participate in ANY extracurricular activity.


Other approved warrantless, suspicionless activities:

1. Search of a parolee in his home.
2. Search of the person and the effects of public school children provided the search is reasonable at its inception and not excessively intrusive in light of the age and sex of the student.
3. Border searches


Special needs doctrine does not include law enforcement programs:

whose PRIMARY PURPOSE is to gather criminal evidence for general use.


Exclusionary rule:

Evidence obtained in violation of statutory or constitutional provision is inadmissible in ct against the individual whose rights were violated.


Unconstitutionally obtained evidence is included from prosecution's case in chief only, it MAY be introduced to:

impeach D's testimony on cross-examination.


To trigger the exclusionary rule police conduct must be:

deliberate, reckless, or grossly negligent.


Fruit of the poisonous tree: Derivative Evidence:

Evidence obtained by exploiting prior unconstitutional conduct is inadmissible as well


To nullify fruit of the poison tree prosecutors must show:

a break in the causal link b/t the original illegality and the criminal evidence that is later discovered.


Three doctrines that can achieve requisite break to allow in fruit from poison tree:

1. Independent source
2. Inevitable discovery
3. Attenuation


Fruit of the poisonous tree: Independent source:

where there is a source for the discovery and seizure of the evidence that is distinct from the original illegality. (evidence is admissible)


Fruit of the poisonous tree: Inevitable discovery:

where evidence would have been necessarily discovered through lawful means.


Fruit of the poisonous tree: Attenuation:

admits derivative evidence where the passage of time and intervening events purge the taint of the illegality and restore D's free will.

Ex: D released after illegal arrest but later returned to the station to confess. The voluntary act of free will removed taint from confession.


Four major requirements for a valid wire tap warrant: STCC

Suspected persons - warrant must name the suspected persons whose conversations are to be overheard.
Time: WT must be for a strictly ltd time period.
Crime: There must be probable cause that a specific crime has been committed.
Conversations: the warrant must describe w/ particularity the conversations that can be overheard.


When does an arrest occur?

Whenever the police take someone into custody against his will for prosecution or interrogation.


What is a de facto arrest?

When the police compel someone to come to the station for questioning or fingerprinting.


What standard of proof applies to arrests?

Probable cause.


What offenses does the 4th amd permit custodial arrests?

All of them - even those only punishable by a monetary fine.


Police do not need an arrest warrant:

to arrest someone in a public place.


To arrest someone in their home police need:

an arrest warrant


To arrest someone in the home of a third party officers need:

an arrest warrant and a search warrant.


Three federal constitutional challenges that can be brought to exclude confessions:

1. 14th amd due process
2. 6th amd. right to counsel
3. 5th amd Miranda warnings


Standard for excluding confessions under 14th amd due process clause?

Involuntariness: meaning the confession is the product of police coercion that overbears the suspect's will.


In GA, a confession alone, uncorroborated by other evidence:

cannot justify a conviction.


When does 6th amd right to counsel attach?

When D is formally charged. NOT on arrest.


When does 6th amd right to counsel apply? When MAP GO FAP

All critical stages of prosecution that take place after the filing of formal charges.
-Misdemeanor when imprisonment is imposed
-Preliminary hearings to determine probable cause to prosecute
-Guilty pleas
-Overnight recess at trial
-Felony trials
-Appeals as a matter of right
-Post - charge line ups


6th amd right to counsel is offense specific, meaning:

it only applies to crimes with which D is formally charged. It provides no protection for uncounseled interrogation for other uncharged criminal activity.


When are Miranda warnings necessary?

1. When D is in custody
2. During interrogation


Two part test for determining D is in custody for purposes of Miranda:

1. A reasonable person would have felt she was not at liberty to leave and end the interrogation; AND
2. The environment presents the same inherently coercive pressures as the station house questioning issue in Miranda.


Miranda: Defines interrogation as:

any conduct the police knew or should have known was likely to elicit an incriminating response.


Miranda: Public safety exception:

If custodial interregation is prompted by an immediate concern for public safety Miranda warnings are unnecessary and any incriminating statements may be used against the suspect.


Suspect's incriminating testimonial responses obtained through custodial interrogation are admissible if an officer does two things:

1. Reasonably conveys Miranda rights to the suspect, and
2.Thereafter obtains a valid waiver of a suspect's Miranda rights to silence and counsel.


Two requirements for a valid Miranda waiver:

1. Knowing and intelligent, and
2. Voluntary


A Miranda waiver is knowing and intelligent if the suspect understands:

1. the nature of the rights, and
2. the consequences of abandoning them.


Burden of proof that Miranda has been waived:

Prosecutor bears the burden of proving a valid waiver by a preponderance of the evidence.


The right to remain silent: Suspects must ________ invoke this right.



The right to remain silent: Once invoked officers must:

scrupulously honor the invocation.


Invoking Miranda right to counsel: Request must be:

sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel.


Invoking Miranda right to counsel: Once a suspect asks for counsel:

ALL interrogation must cease unless reinitiated by the suspect.


Invoking Miranda right to counsel: Fifth amd right to counsel is not:

offense specific -therefore interrogation following a request for counsel under Miranda is prohibited as to all topics, outside the presence of the suspect's attorney.


Invoking Miranda right to counsel: Request for counsel expires:

14 days after a suspect is released from custody.


Failure to give suspect Miranda warnings does not require the suppression of:

physical fruits of incriminating statements, provided the statements are voluntary.


If a statement is inadmissible due to a Miranda violation subsequent incriminating statements made after obtaining a Miranda waiver:

ARE admissible, provided the initial, non-mirandized statement was not obtained through the use of inherently coercive police tactics or methods offensive to due process.


If testimonial evidence should have been excluded at trial and wasn't, is the court required to vacate the guilty verdict?

The guilty verdict stands if the gov't can prove, beyond a reasonable doubt, that the error was harmless b/c D would have been convicted w/o tainted evidence.


Grand juries issue:



Grand jury proceedings are:



Does GA use grand juries?



First Appearance before a magistrate: Must take place no more than:

72 hours after the arrest.


First Appearance before a magistrate who does: (3 things)

1. Advise him of rights
2. Set bail, and
3. Appoint counsel if necessary.


Commitment hearing: Prosecution must show probable cause to:

significantly constrain an arrestee's liberty. (e.g. jail or bail.)


First Appearance before a magistrate: Detention hearings: (called a Commitment hearing in GA) Prosecution need not show probable cause to justify pre-trial detention if: (one of two things)

1. The grand jury has issued an indictment, or
2. A magistrate has issued an arrest warrant.


Trial rights: Evidentiary disclosure: P must disclose to criminal D:

ALL material, exculpatory evidence.


The right to an unbiased judge means two things:

1. Judge has no financial stake in the outcome of the case, and
2. The judge has no actual malice towards D.


All criminal D have right to ____ and _____ jury

fair and impartial


Constitutional right to jury trial for 'serious offenses'. Serious offenses are those where there can be imprisonment for:

more than 6 months.


Misdemeanor juries have:

6 people


Felony juries have:

12 people


All jury verdicts must be:



Claims of ineffective counsel must satisfy two prong test:

1. Deficiency Req't, and
2. Prejudice req't


Deficiency req't: D must show that his counsel's performance fell below:

an objective standard of reasonableness -- meaning the counsel made errors so serious that he was not functioning as counsel.


Prejudice req't: D must also show that but for the deficiency:

the outcome of the trial would have been different.


For a guilty plea to be valid the judge must establish that it is:

voluntary and intelligent.


Before accepting the plea the judge must conduct a colloquy in open court in which she addresses two things on the record:

1. the nature of the charges, and
2. the consequences of the plea.


D may withdraw a plea (it is difficult) in three situations:

1. Plea is involuntary due to defect in the plea-taking colloquy
2. D prevails on claim of ineffective assistance of counsel, or
3. Tthe prosecutor fails to fulfill her part of the bargian.


Eight amendment disallows criminal penalties that are:

grossly disproportionate to the seriousness of the offense committed.


In deciding whether to impose the death penalty jurors must be allowed to consider:

ALL potentially mitigating evidence.


No death penalty against three categories of D:

1. Mental retardation,
2. D that are presently insane
3. D who were under the age of 18 at the time the relevant offense was committed. (Also can't be sentenced to life w/o parole.)


Who can take the fifth?



When can the fifth be asserted?

Any proceeding in which an individual testifies under oath.