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Flashcards in Criminal Procedure Deck (127)
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Constitutional protections only apply to ___________.

Government action


Can private persons trigger constitutional protection under criminal procedure?


1) Private persons acting as a government agent (government calls Joe's neighbor and asks her to break into Joe's house to see what she can find); AND

2) Defense counsel (both public and private) are treated as government actors for purposes of the Sixth Amendment with respect to effective assistance of counsel.


T/F - Police can approach anyone in a public place, and unless the encounter escalates to police preventing the person from moving around or leaving, there is no real constraint on what the police can do and no protection against what they discover.


Example: Tailing a suspect, canvassing a neighborhood, and asking questions are perfectly fine.


What classifies a seizure?

Occurs when an OFFICER, by means of PHYSICAL FORCE OR SHOW OF AUTHORITY INTENTIONALLY terminates or restrains the subject's freedom of movement.

TEST: Whether a reasonable person would feel free to disregard the officer.

Ex: Shooting a suspect; officer ramming a suspect's car in an attempt to stop the car.

NOT Examples: Running over a third party while chasing a suspect (because the police did not intend to stop the third party).


What are the different types of seizures?

1) Stop and Frisk - "Terry Stops" are where an officer can stop an individual when the officer has REASONABLE SUSPICION, based on ARTICULABLE FACTS, to believe the suspect is or is about to be engaged in criminal behavior. During a Terry Stop, an officer can pat-down (frisk) a detainee for WEAPONS, but CANNOT initiate a search for evidence. If PROBABLE CAUSE DEVELOPS during a Terry Stop, the officer can then make an arrest;

2) Traffic Stops - Officers can pat-down the suspect. Officers do not need reasonable suspicion to stop drivers if they pull over everyone (e.g., checkpoints);

3) Arrests - Requires that there be PROBABLE CAUSE to believe that the arrested individual has committed a crime. Can be done WITH OR WITHOUT a warrant.


What is the burden hierarchy in search and seizure?

Conviction - Beyond a reasonable doubt

Arrest - Probable cause

Stop - Reasonable suspicion


What is a pretext arrest?

As long as the police have probable cause to believe an individual committed Crime A, police may arrest that individual on the basis of a HUNCH that there is another crime involved.


What are arrest warrants?

Authorizes an officer to arrest another. An arrest warrant is issued by a neutral and detached magistrate based on a finding of PROBABLE CAUSE to believe that the named individual has committed a particular crime.

The warrant MUST NAME the person and IDENTIFY THE CRIME being arrested for.

Allows officers to enter a home and arrest the individual.


Can an officer arrest another in their home without a warrant?

Absent a warrant to arrest, officers can arrest someone inside a dwelling if there are:

1) Exigent circumstances; OR

2) There is consent to enter.


What does exigent mean?

Felony hot pursuit or danger to others.


What are warrantless arrests?

No finding of probable cause by neutral and detached magistrate but officer has probable cause to believe the individual committed a crime.

NOTE: If officer SEES crime being committed or someone told officer a crime has been committed gives rise to do so.


T/F - If the crime was not committed in the officer's presence, the officer can make an arrest ONLY for a crime that is a felony.


Cannot arrest for a misdemeanor without being committed in the officer's presence or the officer has a warrant.


What is the scope of a search incident to an arrest? What can evidence gathered be used for?

A LAWFUL arrest permits the arresting officers to make a contemporaneous search of the person arrested and the immediate area surrounding the person to:

1) Protect the officers' safety and safety of the public; AND

2) To prevent the destruction of evidence.

ANY evidence discovered during a search incident to a lawful arrest can be used against the person arrested.


What are the search limits of an arrest on the street?

Can search the suspect and his person (including things within his wingspan, i.e. trashcan).


What are the search limits of an arrest at a home?

Can search the suspect and his immediate arrest area.


What are the search limits of an arrest in a car?

May search the passenger compartment of a vehicle as long as the person/suspect STILL HAS ACCESS to the vehicle at the time.

Cannot arrest a suspect, cuff him, put him in the back of the squad car AND THEN go back and search through the car. This is because the suspect is not a danger to the officers anymore; he cannot access a weapon from the squad car.

HOWEVER, IF it is reasonable to believe that the vehicle contains evidence of the offense of the arrest, such a search would be proper, even though the suspect would no longer pose a threat to the officers.


What are inventory searches?

When the police arrest a driver and impound his car, it may be searched for inventory purposes.


What is the key question to whether evidence of a search may come in?


If the arrest is illegal--either because there was no probable cause or there was some other violation of the law--the presumption is that any evidence seized during the search incident to the arrest should be excluded from the prosecution's case-in-chief.


What are the two things to look for on a "search and seizure" MBE problem?

1) Must have probable cause; AND

2) Search must be within its scope

If either is not present, the evidence will be excludable in the prosecution's case-in-chief.


What classifies a search?



What is a reasonable expectation of privacy?

Places where we do have an expectation of privacy against the government:

1) Homes;

2) Hotel Room Rented;

3) Offices;

4) Backyard of your home (curtilage / DOES NOT INCLUDE A HUGE FIELD);

5) Luggage.

Places where we do NOT have an expectation of privacy against the government:

1) Public streets;

2) Open fields (even if they are private property) - Done by flyovers;

3) Garbage cans LEFT OUT IN THE STREET; and

4) Abandoned property.


Is there a need for a warrant to perform a search?

Generally, the government needs a warrant to conduct a search if there is a reasonable expectation of privacy. Three requirements:

1) A search warrant must be issued by a neutral magistrate;

2) Must be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime; AND

3) Must describe the PLACE AND PROPERTY to be searched WITH PARTICULARITY.

IF THESE ARE NOT MET - the warrant is INVALID and the items seized pursuant to the warrant will be excluded from the prosecution's case-in-chief.


Are there exceptions to the need for a warrant to perform a search?

There are seven major exceptions (ESCAPES):

1) Exigent circumstances - If officers are in "hot pursuit" or immediate danger, they may conduct a search without getting a warrant first. However, a warrant is necessary for a search if officers themselves CREATED THE EXIGENT CIRCUMSTANCES. ;

2) Search incident to arrest - If the arrest was LAWFUL,, a search warrant is unnecessary. SCOPE of the search is LIMITED to things within the reach of the defendant. A search incident to arrest for a serious crime can include taking a DNA sample from the arrested person.;

3) Consent - A defendant/suspect can consent to a search. Consent does NOT require the officer alert the subject of his right to refuse. "Mind if I look in that?" is enough. THIRD PARTIES with APPARENT AUTHORITY can allow a search. A search is invalid if the suspect is present and objects. HOWEVER, if the suspect is not present and an occupant (spouse) consents, then the search is valid;

4) Automobiles - If police have probable cause to believe an automobile contains CONTRABAND, they can search those parts of the vehicle, and containers inside, which could contain that contraband. They cannot search OTHER areas or containers (out of scope);

5) Plain view - If police are LEGALLY on the premises, they can seize ANY item in PLAIN VIEW OR PLAIN SMELL, even if that item was not named in the warrant;

6) Evidence obtained from administrative searches - There are two kinds--administrative warrants AND warrantless administrative searches. (see two cards from now); AND

7) Stop and frisks - "Terry Stops" as described before.


What has the US Supreme Court recently held with regard to DUI searches?

Generally, a warrant is required for a search incident to DUI arrests. A DUI arrest is not an exigent circumstance that allows for an immediate blood alcohol concentration test unless exigent circumstances are such that it is impossible to get a warrant (late at night so judge is unavailable for a warrant, far from a hospital).


What is evidence obtained from administrative searches?

Police do not need search warrants to conduct administrative searches. There are two kinds:

1) Administrative Warrants - Do not require probable cause (such as fire or health inspections of a building). Evidence, instrumentality, or fruit of a crime can be seized if SEEN during the administrative search.

2) Warrantless Administrative Searches - Conducted for NON-INVESTIGATIVE purposes, but if they turn up evidence of a crime, it can be used for arrest and subsequent prosecution.

Examples of warrantless administrative searches:

1) Airplane boarding areas;

2) International borders;

3) Highly regulated industries (liquor stores, gun shops, etc.);

4) Searches of students in public schools;

5) Special needs searches (drug testing of railroad employees after an accident);

6) Roadblocks for drunk driving or seeking information


What does the Fifth Amendment do?

Provides, among other things, that no person shall be compelled in any criminal case to be a witness AGAINST HIMSELF.


What is the scope of the Fifth Amendment Privilege against self-incrimination?


Only applies to TESTIMONIAL evidence, NOT PHYSICAL evidence.

Applies to testimony that would be incriminating (which includes links in the chain) that is LIKELY TO LEAD TO PROSECUTION AND CONVICTION. Can be invokes in ANY PROCEEDING as long as there is reason to believe the testimony might lead to future criminal prosecution.



What classifies as a statement under the protection of the Fifth Amendment? When are the statements protected?

A statement that is made by an INDIVIDUAL TO THE GOVERNMENT.

The Supreme Court held that statements made as a result of CUSTODIAL INTERROGATION are inadmissible unless they are accompanied by procedural safeguards (i.e., you have a Fifth Amendment right not to be subjected to custodial interrogation without being given warnings first).


What does "custodial" mean?

The person being questioned has been arrested or is otherwise not free to leave (in the back of a police car).

If not in custody, no warning is required. Any statement or failure to respond to questions CAN be used against them.


T/F - Someone already imprisoned is not necessarily treated as being in custody when questioned about another crime. To be custodial, the prisoner must be removed from normal surroundings and not free to return to them.