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Flashcards in Criminal Procedure Deck (78):
1

4 reqs for search and seizure to be governed by 4A:

1. S&S executed by gov. agent
2. S&S was of an area/item protected by 4A
3. Gov agent physically intruded on or violated reasonable expectation of privacy in a protected area
4. Individual subject to S&S has standing

2

Who's a "gov agent"?

1. Publicly-paid cops
2. Private citizens, if acting at direction of police
3. Private security, if deputized w/ power to arrest
4. Public school administrators

3

Areas/items expressly protected by 4A:

1. persons
2. houses
3. papers
4. effects

4

Items/areas NOT protected by 4A:

1. paint scrapings on outsider of car
2. bank accounts
3. anything visible from public airspace
4. garbage left at curb
5. sound of voice
6. odors
7. style of handwriting
8. open fields

5

What is the test for "reasonable expectation of privacy?"

Objective AND subjective test

6

Test for standing to challenge search/seizure:

Must be your personal privacy rights that were invaded, not a 3rd party's

7

When D uses someone else's residence for biz purposes, standing to challenge S&S?

No

8

When D is a car passenger, standing to challenge S&S?

No

9

NY: special rule for passengers in a car to challenge S&S

Can challenge possession of weapons, if attributed to them

10

3 reqs to make a warrant valid:

1. Neutral/detached magistrate
2. Supported by PC and particularity (OR cop relied on it in good faith)
3. Properly executed by police

11

Standard for PC for purposes of getting a warrant:

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

12

Can hearsay evidence be used to furnish PC for a warrant?

Yes

13

Can police rely on informants' tips to furnish PC?

Yes, even if ANONYMOUS.
MBE: requires corroboration by police of enough of the info to allow magistrate to make a "common sense" determination based on a totality of the circumstances
NY: must establish informant's basis of knowledge AND reliability/veracity ("Aguilar-Spinelli")

14

Warrant's particularity req:

Must specify the place to be searched and the items seized

15

Good faith exception to warrant's PC/particularity req:

If cop relies in good faith, the warrant is still valid

But NOT in NY!

16

4 exceptions to warrant's "good faith exception":

1. affidavit supporting warrant is so egregiously lacking that no reasonable officer would've relied on it
2. warrant is so facially deficient in particularity that officers couldn't reasonably presume it valid
3. affidavit contains knowing/reckless falsehoods
4. magistrate is biased in favor of prosecution

17

What must police do to properly execute a warrant?

1. comply w/ warrant
2. knock and announce their presence/purpose before entering

18

When does an officer NOT have to knock and announce?

when cop reasonably believes that K&A would be futile, dangerous, or inhibit the investigation

19

8 exceptions to warrant req: ("ESCAPIST")

Exigent circumstances
Search incident to arrest
Consent
Automobile
Plain view search
Inventory
Special needs
Terry stop and frisk

20

Exigent circumstances don't require a warrant. Example:

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

21

"Emergency aid" exception to warrant:

Cop can enter a residence w/o warrant when there is objectively reasonable basis for believing a person inside needs emergency aid

22

Reqs for SITA:

1. arrest must be lawful
2. search must be contemporaneous in time and place w/ arrest
3. search must be limited to arrestee's wingspan (body, clothing, any containers w/in immediate control)

***NY: officer can search containers w/in wingspan ONLY if he suspects that arrestee is armed

23

Special rules for searching cars incident to arrest:

Warrantless search is valid only if:
1. arrestee is unsecured and still may gain access to the interior of the automobile, OR
2. police reasonably believe that the automobile contains evidence of the crime for which the occupant was arrested

24

When is consent sufficient to search a person w/o warrant?

When consent is voluntary and intelligent

25

What if consent to search is obtained from a person who didn't have actual authority to give consent?

Consent is still valid if officer reasonably believed the person had actual authority

26

When can cops search an automobile w/o warrant, and what is the scope of the search?

When they have PC that contraband or evidence of a crime will be found inside. Cops can search ENTIRE vehicle, and can open any container that may reasonably contain the items for which there was PC to search (can't open a water bottle if you're looking for a big item)

27

When can cops seize property in plain view w/o a warrant?

1. officer has lawful access to place from which items can be plainly seen
2. officer has lawful access to the item itself, and
3. criminality of the item is immediately apparent

28

When is suspicionless drug testing not permitted?

When its primary purpose is to gather crim evidence for general use by law enforcement

29

Terry stop def:

Brief seizure for purpose of investigating suspicionless conduct when there are specific fcts that inform cop's belief that crim activity is present

30

Terry stop: when has a "seizure" occurred?

When, based on totality of the circumstances, a reasonable person would not feel free to leave or decline cop's questioning

31

When is a person "seized" when being pursued by a cop?

MBE: when he submits to cop's authority by stopping OR cop physically restrains him
NY: pursuit IS seizure

32

Who is seized during a traffic stop?

Both driver and passenger

33

Terry frisk def:

Pat down of body/outer clothing for weapons, justified by an officer's belief that suspect is armed and dangerous

34

Cop can always seize a weapon during a Terry frisk. What about contraband?

MBE: when he recognizes it as contraband w/o physically manipulating it
NY: never

35

When can an officer "frisk" a car?

When, during traffic stop, cop believes that a suspect is dangerous. He may search the passenger cabin of suspect's vehicle, but is limited to those areas in which a weapon may be placed

36

When can an officer do a "protective sweep" of a suspect's house during arrest?

When cop has RS that house harbors a person who poses danger to those on arrest scene

37

Exclusionary rule applies to what:

P's case-in-chief. Evidence can be used to impeach D's testimony on cross

38

Can negligent police conduct trigger the exclusionary rule?

No, erroneous police conduct must be deliberate, reckless, or grossly negligent

39

Break in the causal link b/w original illegality and the discovered evidence can allow fruit of the poisonous tree. What kinds of breaks?

1. independent source
2. independent discovery
3. attenuation (passage of time and intervening events "purge the taint" of original illegality and restore D's free will)

40

4 reqs for valid wiretapping warrant:

1. must name suspected persons whose convos are to be overheard
2. limited period of time
3. PC that specific crime has been committed
4. describe w/ particularity the convos to be overheard

41

Arrest def:

when police take someone into custody against her will for prosecution or interrogation

Requires PC

42

Arresting someone in public place: warrant required?

No. Officer can make warrantless arrest for either a felony (w/ PC) or a misdemeanor

43

Warrant required to arrest a person in a 3rd party's home?

Yes (both arrest and search)

44

Common enterprise theory:

When cop discovers evidence that suggests common unlawful enterprise b/w driver and passengers, cop may arrest any or all of them

45

Can grand jury consider inadmissible evidence?

Yes

46

NY: when can cop approach and request info from a person?

Any time, so long as not on a whim or caprice. If person refuses to respond or runs away, that's not PC

47

NY: when can cop exercise the CL right to inquire?

When cop has "founded suspicion that crim activity is afoot"

48

NY: when can cop forcibly stop and detain a person and frisk them?

When cop has RS that person has committed or is committing a crime. Police can frisk if they reasonably believe they are in danger, to see if suspect is armed

49

NY: when can cop pursue a suspect?

When police have RS that crime has been, or is about to be, committed

50

NY: when can cop perform a canine sniff of a car's exterior?

when they have "founded suspicion" of crim activity

51

Does double jeopardy apply to civil proceedings?

NO

52

Double jeopardy: when are two offenses not the "same offense"?

MBE: when each offense contains an element the other does not

NY: D must be charged w/ all offenses arising from a single transaction, EXCEPT when:
1. offenses have substantially different elements
2. each contains an element the other does not AND is designed to prevent very different harms
3. one is for crim possession and other for use, OR
4. each involves harm to a different victim

53

Double jeopardy: when are two sovereigns the "same sovereign"?

State + city in that state

54

Who can plead the fifth?

Anyone, in any proceeding in which they testify under oath

55

When does person lose the right to take the fifth?

When he fails to take the 5th in an earlier proceeding

56

When is the privilege to take the 5th eliminated?

1. Grant of immunity from prosecutors ("use and derivative use" immunity); NY***: shields witnesses from prosecution for any transaction they testify about in their immunized testimony;

2. taking the stand (waives privilege as to anything properly w/in scope of cross)

3. statute of limitations has run on the underlying crime

57

When person takes the 5th, prosecution cannot:

Negatively comment on:
1. D's decision not to testify at his trial; OR
2. D's invocation of his right to silence or counsel

58

Miranda violation: used for impeachment?

Testimony made in violation of Miranda may be used for impeachment only

59

6th amdmt right to counsel: used for impeachment?

Statement made in violation of D's 6A right to counsel may be used to impeach D's contrary trial testimony

60

4 possible challenges to exclude a confession by D?

1. due process clause (14A)
2. right to counsel (6A)
3. Miranda (5A)
4. NY*** indelible right to counsel

61

When is a confession excluded under DPC?

When it was "involuntary," meaning it was the product of police coercion that overbore the suspect's will

62

When does 6A right to counsel attach?

When D is formally charged

63

When does 6A right to counsel apply?

At all "critical stages" of the prosecution after D is formally charged. BUT the right is offense-specific, so applies only to the charges filed against D.

NY*** - if D is released and later arrested on unrelated charges, waiver can be made w/o presence of counsel from prior charges

64

When is a confession excluded under 6A right to counsel?

When confession or statement was deliberately elicited, and D didn't knowingly, intelligently, and voluntarily waive his right to have atty present

65

When are Miranda warnings required?

"Custodial interrogation"

66

Miranda: "custody" definition:

When atmosphere is objectively characterized by police domination and coercion, such that suspect's freedom of action is limited (need not be in police station)

67

Miranda: "interrogation" def:

When there's any conduct that the police knew or should've known was likely to elicit an incriminating response

68

Exception to Miranda doctrine:

immediate concern for public safety

69

Can suspect impliedly waive Miranda rights?

Yes, can be implied by a course of conduct that indicates a desire to speak to police interrogators

70

How does suspect invoke his right to remain silent?

Unambiguously!

71

What must officer do after a suspect invokes his right to remain silent?

He must cease interrogation as to ALL topics unless initiated by the suspect

72

If statement is inadmissible, are subsequent statements made after obtaining a Miranda waiver admissible?

Yes, provided the initial non-Miranda statement wasn't obtained through the use of inherently coercive police tactics

73

If evidence is improperly admitted and D is convicted, does court have to vacate the verdict?

No, not if the error was harmless (i.e. if D would've been convicted even w/o the tainted evidence)

74

When does NY's indelible right to counsel attach?

1. when D is in custody, the police are engaging in "activity overwhelming to the layperson," and D requests counsel
2. at arraignment
3. upon the filing of an accusatory instrument
4. when there has been any significant judicial activity

75

In NY, when can D waive his indelible right to atty?

If police know D is represented by counsel, D can only waive his right when his atty is actually present

76

Is a spontaneous statement made by D in the absence of counsel admissible as a confession?

Yes, as long as it was not induced, provoked, or encouraged by the police (it was "forced" upon the cop)

77

When does double jeopardy attach?

In jury trials, jeopardy attaches when jury is empanelled and sworn (but state may retry D even if jeopardy had attached if first trial ends in a hung jury)

78

Does a suspect's waiver of his 5A privilege after receiving Miranda warning apply to subsequent questioning about another crime?

Yes! If suspect has waived, no need to repeat the warnings if cop wants to ask about a different crime