Criminal Procedure PMT Flashcards
(307 cards)
1
Q
When are roadside checkpoints not constitutional?
A
When established for purpose of deterring “general” criminal activity. [There must be a specific purpose]
2
Q
According to precedent, what are 2 types of constitutional roadblocks?
A
- Boarder protections
- Highway safety [not general crime deterrence]
3
Q
What’s the problem with general crime control roadblocks?
A
You have introduced a seizure scenario. You need RS or special need to seize those vehicles, not general purpose of deterring crime.
4
Q
T/F) RS is needed for routine search of the gas tank of a vehicle attempting to enter the US.
A
False. [Flores-Montano]
Special need exception
5
Q
The government may search people or property entering the United States without probable cause, a warrant, or even reasonable suspicion. [T/F]
A
True. [CJ Rehnquist, Flores-Montano]
Special need exception
6
Q
Boarder & Immigration checks are example of ____ ___ searches, an exception to the 4A warrant requirement.
A
Special need
7
Q
Can students in extracurricular activities be subjected to drug testing without warrant or individualized suspicion?
A
Yes. “Special-need” exception.
8
Q
T/F) Schools are a “special need” exception to 4A.
A
True. Warrant and PC finding unecessary in this setting, similar to the boarder.
9
Q
May a state hospital conduct drug screenings of pregnant women without pc or informed consent?
A
No. [Ferguson v. City of Charleston]
10
Q
What is “special need” balancing?
A
- Government special need to promote legitimate interest
– balanced against – - infringement of an individual’s privacy rights
11
Q
Can officers enter a home without a warrant if they believe someone inside home needs assistance?
A
Yes. [US v. Evans]
12
Q
Can police officer go into home under Hot pursuit?
A
If he had PC for the arrest, chase started in public place after felony committed, and suspect flees / poses danger to others.
13
Q
Can LE procure physical evidence by forcible extraction of a ∆s stomach contents.
A
No. “Shocks the conscience” and violates the DP clause of the 14A. [Rochin]
14
Q
Under what rule may police test your BAC via blood test?
A
Exigent-circumstances rule when you are unconscious. [Mitchell v. Wisonsin]
15
Q
Under HP doctrine, if pursuing while purp committed a _____ crime, may continue to pursue without a warrant.
A
Felony [Warden v. Hayden]
16
Q
Hot pursuit doctrine case?
A
Warden v. hayden
17
Q
“The exigent-circumstances exception permits officers in [hot pursuit] of a fleeing felon to enter and search a home without a warrant.”
A
Warden v. Hayden
18
Q
Can police enter a home without a warrant in pursuit of a fleeing misdemeanant?
A
No, felony only. Unless exigent circumstances.
19
Q
___ ___ Doctrine requires federal officers to promptly present arrested individuals before a judge after arrest and excludes confessions or evidence obtained during any unnecessary delay in doing so.
A
McNabb-Mallory doctrine
20
Q
What is the Massiah rule?
A
6A right to counsel
21
Q
Pre Miranda case where confession made after hours of interrogation, during which ∆ had been denied right to counsel and was not made voluntarily.
A
Spano v. NY
22
Q
Confession voluntariness anlayzed under….
A
Totality of circumstances, per CJ Warren in Spano v. NY
23
Q
T/F) 6A is violated if informant purposefully elicits incriminating statement from person who has been charged already.
A
True. After 6A RTC attaches, we can only send someone in to listen passively. No direct engagement. [Massiah]
24
Q
Without “Miranda” warnings, statements made during custodial interrogation are inadmissible. Case?
A
Miranda v. Arizona
25
Duty to issue Miranda applies when?
1. Custodial arrest [Thompson v. Keohane]
2. Interrogation [Rhode Island v. Innis]
26
Whether an interrogation is custodial or noncustodial is an ___________ determination based on the totality of the circumstances.
Objective determination, CJ Warren
27
Are Terry stops "Custody" for purposes of Miranda?
No, they are 4A seizures.
28
Whether an interrogation is custodial or noncustodial is an objective determination based on the totality of the circumstances.
What does that mean?
Would a reasonable person in the suspect's place believe that they were free to leave / end the interview?
29
T/F) Under Miranda, a police man's unarticulated plan has no bearing on the Q whether a suspect is in "Custody."
True. Only relevant inquiry = "How a reasonable man in suspect's shoes would have understood the situation." Objective test analyzed under TOC.
30
Where is Miranda custody on the triangle?
Above Terry stop + RS
Below Custodial arrest + PC
31
Miranda application / outline / steps
1. Custody= Objective, TOC. What RAP feel free to leave?
2. Interrogation = or FE. Likely to illicit incriminating response? [Rhode Island v. Innis]
3. If yes to both above, proper Miranda safeguards produced?
4. If yes, was statement voluntarily made?
32
Interrogation defined as what?
Any words or actions on pat of police that the police should know or are reasonably [likely to elicit incriminating response] - [Rhode Island v. Innis]
33
ROL: "Under Miranda, interrogation refers to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect."
Rhode Island v. Innis
34
In RH v. Innis, ∆ was not subject to Miranda b/c not subject to interrogation or what?
Or the functional equivalent
35
What is the "functional equivalent" to Miranda interrogation?
Whereby police should know its likely to illicit an incriminating response.
EX: Appealing to religious convictions.
36
T/F) Officer's reasons or type of questioning is irrelevant under Miranda when motivated by public safety.
True. [NY v. Quarles]
37
CJ Rhenquist established public safety exception in what case?
NY v. Quarles [supermarket gun]
38
Does an undercover police officer need to give a Miranda warning to person in jail b4 asking questions that might lead to person admitting to a crime?
Bonus: Case?
1. No. Miranda applies to "official" police questioning. A person freely talking to a presumed inmate is not forced. [False friend]
2. Illinois v. Perkins
39
Are routine "booking" questions considered an interrogation for purposes of Miranda?
No.
40
Does Miranda rule require "specific" set of words to be said to a suspect b4 they are questioned by police?
Bonus: Case?
1. No. Just the main idea of the rule. [Lawyer rights]
2. Florida v. Powell
41
If ∆ knows the Miranda rights already, do police still have to issue Miranda?
Yes.
42
If you don't invoke Miranda, then talk, have you waived it?
Yes. Berghuis v. Thompkins
43
What is a [valid] waiver of Miranda?
How analyzed?
1. Knowingly and intelligently
2. Voluntarily [not coerced]
Analyzed under TOC. Prosecution must prove valid waiver by preponderence of evidence.
44
Can police continue interrogation if the request for a lawyer is ambiguous?
Yes. The request for a lawyer must be unambiguous. You must clearly invoke RTC. There can be no doubt. "Maybe" doesn't work.
45
When can police resume 2nd series of questioning for person who previously invoked RTS Miranda rights.
What must they do before resuming?
Can they go back every 2 hours for more questions?
1. When it has been "SH." Typically involves giving break around 2 hours or more.
2. Fresh set of warnings.
3. This is not "SH" the RTS.
46
Once a suspect has received his Miranda warnings and invoked his [RTC] right to counsel, the police may not further interrogate the suspect until the suspect has been given access to counsel, unless... what?
Unless the suspect initiates further comms with the police. [Edwards v. Arizona]
47
Edwards v. Arizona and another case lead to what rule?
Edwards-Minnick rule
48
What is the Edwards-Minnick Rule?
After invocation of RTC, if ∆ has consulted w/ counsel and counsel is present, police may reinterrogate with valid Miranda waiver.
49
How did Minnick strengthen the Edwards case?
Strengthened Edwards by ruling that even if suspect consulted w/ attorney, police may not restart questioning without attorney present.
50
RTC =
RTS =
RTC = Stop until attorney present.
RTS = "SH"
51
“If an accused asserts his right to counsel but subsequently initiates a conversation with police about a topic related to the investigation, his initiation of the conversation is a waiver of his right to counsel.” [T/F]
True, per CJ Rehnquist ruling in Oregon v. Bradshaw.
52
RTS cheat sheet?
1. Invoked
2. SH
3. Fresh warnings
4. Cannot come back every 2 hours like clockwork.
53
RTC cheat sheet?
1. Invoked
2. Stop
3. Cannot reengage unless attorney present; or [Edwards-Minnick rule]
4. Break in custody [at least 14 days]
54
Invoked RTC. Interrogation stops. Break in custody for 16 days. Re-engage. Permissible?
Yes.
55
T/F) Miranda RTC is not offense specific.
True. If you invoke Miranda RTC, it applies to everything.
56
Miranda right to counsel comes from __ amendment.
5A
57
When do they attach?
1. Miranda RTC [Edwards/Minnick]
2. 6A right to counsel [Massiah]
1. Pre-charge & custodial interrogations
2. Post-charge [offense specific]
58
Key difference in the Miranda RTC and 6A RTC?
6A RTC attaches post judiciary commencment and is offense specific. If you invoke it, police can still ask about unrelated shit.
59
May police interrogate a suspect alone after he has invoked his right to counsel?
No. [Edwards-Minnick rule] Must break off immediately if invocation was 1) Unambiguous and 2)Unequivocal.
Note: If Miranda, may reengage after 14 day break in miranda custody. Reissue and get fresh waiver.
60
"Williams, after escaping from a mental institution, was suspected of kidnapping a young girl and was arrested. He was advised by his attorney not to speak to the police, but during transport, an officer's remarks led him to reveal the location of the girl's body. Williams's motion to suppress this evidence was denied, leading to his conviction, which was later challenged and overturned in federal court."
Brewer v. Williams. After 6A RTC invoked, police cannot reengage without counsel present, which is what happened here.
61
[Christian Burial speech]
Brewer v. Williams
62
6A right to counsel attaches when?
1. Adversarial proceedings have been initiated.
2. Do not have to invoke.
3. Offense specific
4. US v. Henry "passively listen" only.
63
T/F) When 6A RTC attaches, gov. agents are prohibited from deliberately eliciting incriminating statements in absence of counsel, or using functional equivalent to interrogation... such as "Christian burial speech..."
Brewers v. Williams
64
It is incumbent upon who to prove intentional relinquishment or abandonment of known right or privilege?
The state!
65
Does the 6A require suppression of statements made by a prisoner to a covert police informant if the informant only listened passively and did not attempt to interrogate the prisoner?
No. The purpose of Massiah was to prevent police from using covert interrogation techniques to circumvent the Sixth Amendment. There must be some deliberate action on the part of police for a violation of the Sixth Amendment to occur.
66
T/F) . The purpose of Massiah was to prevent police from using covert interrogation techniques to circumvent the Sixth Amendment. There must be some deliberate action on the part of police for a violation of the Sixth Amendment to occur.
True. Undercover informants may listen passively to prisoner and not violate 6A right to counsel.
67
If person is awaiting trial [has been formally indicted] and informant is in cell asking questions... Permitted?
Not permissible. [US v. Henry] May listen passively only.
68
T/F) No Miranda warnings needed when suspect doesn't know they are speaking to police.
True. Miranda focuses on police coercion. There can be no "Police" coercion if person thinks they are talking to a civilian.
69
T/F) Per 6A RTC, state actors may NOT actively question a charged suspect.... but, may passively listen.
True
70
Where a homicide occurs, may police search the scene of the crime without first obtaining a warrant?
No. Mincey v. Arizona
71
This case showed that just because a homicide has occurred does not justify making an exception to the rule that police must obtain a warrant prior to searching a suspect’s home.
Mincey v. Arizona
72
What happened in Mincey v. Arizona?
The fact that a homicide has occurred does not justify making an exception to the rule that police must obtain a warrant prior to searching a suspect’s home.
73
T/F) A statement made by a mentally ill person is not involuntary for purposes of the Due Process Clause if there is no coercive behavior by police.
True. Per Rehnquist, "caselaw makes clear that there must be coercion by police for miranda violation to occur."
74
T/F) False friends are a valid exception to 4A b/c there is no invasion of person's REOP when they willingly talk to someone they don't know is undercover.
True
75
T/F) (1) If a confession is obtained through a credible threat of physical violence by a government agent, the confession is involuntary and coerced.
True. Miranda looks at how confessions are given. They must be (1) Volutnary, and (2) not coerced.
76
What test do courts use to determine if a confession is coerced?
Per Rehnquist, Objective and TOC.
77
When does 6A right to counsel attach?
The Massiah Court held that the right to counsel attaches at the point when an individual is indicted.
78
Miranda applied the Fifth Amendment Privilege against self-incrimination to ____________ interrogations.
Custodial
79
T/F) If a person in custody has questions about the meaning or implications of the warnings, then the officer must answer those questions.
False
80
T/F) Miranda Custody is objective TOC analysis.
What case for analysis? [Normal custody & Miranda custody]
Normal custody:
Mendenhall
Hodarri
Torres v. Madrid
Miranda custody = Thompson v. Keohane
81
T/F) If a police officer has reasonable grounds for making an arrest, he can enter the arrestee’s home without a warrant in order to effectuate the arrest.
False. Under Payton, police can arrest with PC but still need warrant to enter the home.
82
T/F) Absent exigent circumstances, the police may not enter a person’s home to make an arrest without a warrant.
True, Payton v. NY.
83
T/F) The Fourth Amendment does not prohibit a warrantless arrest for a minor offense.
True. If police officer has PC that minor offense comitted, may arrest. [Atwater.]
84
T/F) Once a police officer makes a valid custodial arrest, the officer is entitled to make a search incident to that arrest.
True. [Chimel v. CA] Looking for (1) evidence and (2) weapons in persons immediate area of control.
85
T/F) The search incident to legal arrest exception allows the police to search only the area within the arrestee’s immediate control.
True. Chimel v. CA
86
ROL: "Police may search a vehicle after a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that crime-related evidence is located in the vehicle."
Arizona v. Gant
87
True or False. When the police arrest someone who is in possession of a smart phone at the time of the arrest, the police can search the contents of the smart phone incident to that arrest.
False. [Riley]
88
True or False. The automobile exception only applies to automobiles so that mobile homes are treated like houses rather than like automobiles.
False. [Carney] We look to the inherent mobility of the alleged "vehicle."
89
Under the Fourth Amendment, a vehicle that can be readily moved and that has a reduced expectation of privacy due to its use as a licensed motor vehicle may be searched without a warrant provided probable cause exists. [mobile home]
Carney
90
In order to conduct an automobile search, the police must possess _____ _____ to believe that the fruits, instrumentalities or evidence of crime can be found in the vehicle to be searched.
Probable cause
91
ROL: "Officers can search an automobile without a warrant if the officer has probable cause for the search."
Caroll
92
level of suspicion needed for traffic stop?
level of suspicion for "terry" stop?
level of suspicion needed to search car?
RS
RS
PC
93
True or False. Under the automobile exception, the police are authorized to search the entire vehicle.
False. Only those areas of the car for where they have PC.
94
T/F)
True or False. When the police search a vehicle under the automobile exception, they are prohibited from opening containers that they find in the vehicle.
2. can police search anywhere in the car under Carroll / Carney?
False. [California v. Acevedo]
2. No, limited to only those areas where they have PC.
95
T/F) An inventory search can be conducted whenever the police lawfully impound a vehicle.
True. However, police departments should have reasonable standards and guidelines governing the conduct of inventory searches.[Colorado v. Bertine]
96
ROL: "A warrantless arrest is permitted if there is probable cause to believe the person has committed a felony."
US v. Watson
97
T/F) A person may voluntarily consent to a search even if the person did not know that consent was optional.
True. [Bustamonte]
98
T/F) The police may not enter a home without a warrant to search for evidence if they obtain consent from an occupant but a cooccupant is present and objects to the search.
True. [Randolph]
99
T/F) Under the Fourth Amendment, the police may enter a home without a warrant if they reasonably believe the person who consents to their presence has the authority to do so. [But doesn't actually have that authority]
True. [Rodriguez]
100
Under Terry, when armed with RS that person is _____ or that ______ then the officer may stop and conduct a limited search for weapons.
1. Armed & dangerous
2. Criminal activity is afoot
101
ROL: "For Fourth Amendment purposes, a person is seized only if the surrounding circumstances would cause a reasonable person to believe she was not free to leave."
Mendenhall. Compounded by Hodari.
102
How did [Torres v. Madrid] add to [Hodari] and [Mendenhall?]
A person is not "seized" until LE physically restrain them or they submit to authority. Even if physical restraint is unsuccesful. [Torres v. Madrid]
103
When is a person "seized?"
1. RAP does not feel free to leave. [Objective, TOC from Mendenhall]
2. Physical restraint [Hodari]
3. Even if unsuccessful [Torres]
104
T/F) A suspect can be brought to the police station for fingerprinting based on a reasonable suspicion that the suspect is implicated in a crime.
False. PC required. [Davis v. Mississipi]
105
T/F) True of False. A police officer always has discretion to stop a motorist simply to check the driver’s license and car registration.
False. Need RS.
106
What case outlines "protective sweeps?"
Maryland v. Buii
107
T/F) True or False. At the U.S. border, customs and immigration officials have the right to search those seeking entry into the U.S., as well as their possessions.
True. [Flores-Montano]
108
T/F) If felony committed in police presence, may make arrest without warrant.
True. [Watson]
109
According to Arizona v. Gant, when may police search passenger compartment of car following arrest?
1. RS that shit there
2. Purp within reaching distance
110
T/F) Under Miranda, once person invokes RTC, police may not question again... unless person starts speaking to them.
True. Edwards v. Arizona.
111
It is incumbent upon whom to prove an intentional relinquishment or abandonment of a known right or privilege?
The state.
112
T/F) There is no right of privacy to sound of your voice.
True. [US v. Dionisio]
113
ROL: "Compelled production of a voice sample does not violate the constitutional protections of the Fourth Amendment or Fifth Amendment of the United States Constitution."
US v. Dionisio
114
The contents of letter.
Writing style of letter.
Which is protected?
Contents only, not characteristics. Physical characteristics not protected. [Dionsio]
115
Does privilege against self-incrimination protect against compelling his physical characteristics? [Platinum teeth]
No, only testimonial or communicative evidence. [Content not characteristics]
116
ROL: Post-indictment line-ups satisfy the "critical stage" requirement and present profound risks to a fair trial.
US v. Wade
117
Do post-indictment line-ups violate privilege against self-incrimination?
No, but they may violate RTC privilege as they are a "critical stage" conducted post indictment. [Wade]
118
_____ rule: protects [charged] ∆s from any questioning outside interrogation. IE: Undercover. Stems from 6A, post indictment.
____ rule: protects suspect in custody from interrogation after asking for lawyer. Stems from 5A, pre-indictment.
______ rule: Extends edwards, saying even if ∆ met with attorney once, police still can't question later unless attorney present. Stems from 5A, pre-indictment.
1. Massiah 6A RTC
2. Edwards 5A RTC
3. Minnick
119
___ ___ RTC applies pre-indictment and only applies when (1) Custody + (2) Interrogation. This activates at this stage when persons requests the lawyer. DOES NOT ATTACH AUTOMATICALLY.
5A RTC [Edwards - Minnick] and [Davis v. US - attachment]
120
T/F) To invoke the 5A RTC, a person must unambiguously request an attorney, it does not attach automatically.
True [Davis v. US]
121
T/F) Regarding 5A RTC, even if suspect speaks to a lawyer, police still cannot restart questioning without the lawyer present.
True. This is the Minnick case that strengthened Edwards, giving us the Edwards-Minnick rule.
122
"Do i need a lawyer?" Valid invocation?
No, must be clear and unambiguous. [Davis v. US]
123
This case showed that a suspect must clearly and unambiguously invoke the 5A RTC.
[Davis v. US]
124
"Maybe I should talk to a lawyer." Good enough?
Nope. [Davis v. US] Must be:
1. Unequivocal
2. Unambiguous
125
Suggestive lineup b/c he was the only suspect in multiple lineups, was the tallest, and dressed a certain way. SC overturned his conviction.
Foster v. CA
126
May identification evidence be admitted even if the procedure itself was suggestive?
Yes if reliable. [Neil v. Biggers]
1. Witness opportunity to view suspect during crime
2. Witness degree of attention at time
3. Accuracy of witness prior descriptions
4. Witness level of certainty
5. The time elapsed between crime and ID
127
The reliability test for Identification evidence established in what case?
Neil v. Biggers. Reaffirmed in Manson v. Brathwaite.
128
Reliability test factors?
[Neil v. Biggers]
1. Witness opp. to view suspect during crime
2. Witness degree of attention
3. Prior witness accuracy
4. W certainty
5. Time elapsed
129
Define the reliability test for ID evidence.
Note: Demonstrated use in case of Manson v. Braitwate which showed us = Suggestiveness may be outweighed by reliability.
Neil v. Biggers:
1. W opp. to view purp
2. W degree of attention
3. Prior accuracy
4. W certainty
5. Time elapsed
130
Define the Biggers test.
1. Opp. to view ∆
2. Degree of attention
3. Prior accuracy
4. Certainty
5. Time elapsed
131
This purp said a one-photo "show-up" was too suggested and violated his right to a fair trial.
Manson v. Brathwaite
132
T/F) In Manson v. Brathwaite, the SC reapplied and reaffirmed the Biggers factors, finding that reliability outweighs suggestiveness.
True
133
T/F) Regarding suggestive procedures which may violate 14A DP, reliability outweighs suggestiveness factors.
True
1. Neil v. Biggers
2. Manson v. Brathwaite
Factors:
1. W opp. to view ∆
2. Degree of attention
3. Prior accuracy
4. Certainty
5. Time elapsed
134
Lineups before indictment dont violate 6A RTC but they must still comply with what?
DP, can't be too sugestive. Also, miranda RTC may apply if invoked.
135
If pre-indictment lineup is too suggestive, how do you object? [Hint: Objecting to the identification evidence because too suggestive]
1. DP violation
2. Neil / Brathwaite factors
136
T/F) Pre-indictment suggestive IDs do NOT violate DP if police not involved.
True, Perry v. NH
137
What case showed that a suggestive ID procedure does not violate DP if the police are not involved.
Perry v. NH
138
"Under the Due Process Clause, [identification evidence] may be admitted even if the procedure was suggestive so long as the identification is reliable." How do we know if reliable?
1. Opp to view purp
2. Degree of attention
3. Past accuracy
4. Certainty
5. Time elapsed
139
T/F) "A suspect may not defeat a warrantless arrest that began in public space by retreating to private space."
True. [US v. Santana] relying on HPDoctrine of Warden v. Hayden.
140
Confession "voluntariness" analyzed how?
TOC, per CJ Warren.
141
This rule prohibits use of confessions obtained during an unnecessary delay between suspect arrest and presentation to magistrate.
McNabb-Mallory rule
142
T/F) The 6A is violated if an informant working with law-enforcement agents deliberately elicits an incriminating statement from a defendant who has been charged. [iE: by installing listening device on car while out on bail + putting undercover in car.]
True. Massiah v. US, gave us the Massiah rule.
143
When does 6A RTC "backpack?"
When you have been indicted. Is also offense specific.
144
Duty to issue Miranda only applies when?
1. Custodial [TOC, objective] - Thompson v. Keohane
2. Interrogation - Rhode Island v. Innis
145
T/F) Terry stops are "custody" for purposes of Miranda
False, below level of "custody" on the triangle. They are 4A "seizures."
146
Under Miranda “a policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time”; rather, “the only relevant inquiry is how....."
"a reasonable man in the suspect’s shoes would have understood his situation.”
147
____ _____ is where police should know their actions likely to illicit an incriminating response.
Functional equivalent
148
ROL: The court decided that if public safety is at risk, a suspect can be questioned without being read their Miranda rights.
CJ Rehnquist in NY v. Quarles
149
What is a valid waiver of miranda?
1. Voluntarily [not coerced]
2. Knowingly & intelligently
3. TOC, objective
150
Can waivers of miranda be inferred/ implied or need it always be express? IE: Instead of invoking the right, you keep talking to police.
Yes. [Berghuis v. Thompkins] & Butler v. NC show that it can be wavied this way.
151
This case showed that waiver of Miranda can be inferred. IE: You don't invoke the right but instead talk to the police.
Berghuis v. Thompkins
152
Which case showed that request for lawyer must be unambiguous... if not, police may continue the interrogation.
Davis v. US
153
Custodial interrogations are inherently ________. Therefore, going back to the well over and over is not "SH" them.
Coercive
154
Valid waiver of RTC must be....
1. Voluntary
2. Knowing and Intelligently
Analyzed under TOC
155
Break in time after RTC invoked?
14 days
156
T/F) Miranda RTC is not offense specific.
True. The 6A RTC is offense specific [post indictment].
157
It is incumbent upon whom to prove intentional relinquishment of a known right or privilege?
The state. [Johnson v. Zerbst]
158
If purp has been indicted, what may informant do if in jail cell with him?
Only listen passively, may not ask questions. [US v. Henry]
159
If purp has NOT been indicted, what may informant do if in jail cell with him?
May ask questions b/c there is no coercive interrogation which is what Miranda RTC focuses on. [Illinois v. Perkins]
160
This case showed that undercover agent may not illicit incriminating response from person in jail cell who has been indicted.
US v. Henry
161
Is there a right of privacy to the sound of your voice?
No. Dionisio
162
_____ rule: Evidence obtained as result of unconstitutional search or seizure shall be excluded from the criminal prosecution of the party whose rights were violated.
Exclusionary rule
163
The Exclusionary rule is an _____ ingredient of the 4A.
Essential ingredient.
164
T/F) Short-term guests in another’s house, present for a business purpose, do not have a reasonable expectation of privacy resulting in Fourth Amendment protection.
True
165
T/F) The Fourth Amendment protects an overnight guest from a warrantless, nonconsensual entry by police into the residence in which he or she is staying.
True
166
6A RT attaches when?
When adversarial judicial proceedings have been initiated.
167
T/F) Unlike Miranda, 6A RTC does not have to be invoked to attach.
True, it attaches automatically when adversarial judicial proceedings have been initiated.
168
T/F) Regarding 6A RTC, once attached, “deliberate elicitation” prohibited. Applies even if ∆ doesn’t know he’s being interrogated. Custody not required either. May only listen passively.
True. US v. Henry
169
T/F) After suspect given miranda, he does not need to invoke right to be protected.
False.
170
What does it mean or imply when D.A. says "run a 'perkins' on him."
This implies miranda scenario. Put an undercover agent in cell to illicit incriminating response. [Illinois v. Perkins]
171
Illinois v. Perkins =
US v. Henry =
1. Ok to ask questions and not violate Miranda 5A RTC
2. Can only passively listen and not violate 6A RTC
172
Is there REOP in physical characteristics?
No
173
T/F) No 6A RTC for photo displays post indictment.
True
174
Exclusionary rule relies on what?
1.
2.
Exception to the rule?
1. Deterrence [for LE not judges]
2. Cost-benefit analysis [letting purp go]
Good faith exception
175
T/F) Evidence obtained in reasonable, good-faith reliance on a facially valid search warrant is not subject to the Fourth Amendment’s exclusionary rule, even if the warrant is later deemed defective.
True. US v. Leon
176
Even if acting on valid warrant, 4 times evidence may be suppressed under US v. Leon?
1.
2.
3.
4.
1. Magistrate was misled
2. Magistrate abandoned judicial role [rubber stamping]
3. Affidavit supp. warrant was lacking
4. Warrant was facially deficient
177
4 exceptions to exclusionary rule? IE: When is evidence NOT excluded?
1. GF
2. Attenuation of taint [passing of time between events]
3. Independent source doctrine
4. Inevitable discovery [christian burial case]
178
___ ___ doctrine: [Exception to ER] Even if the police conducted illegal search, if they later find same evidence through lawful investigation, it can be used.
Independent source doctrine
179
___ ____ doctrine: [Exception to ER] Allows illegally obtained evidence to be admitted if LE would have eventually discovered it anyways.
Inevitable discovery [Nix v. Williams]
180
T/F) The ER does not apply to violations of K&A rule.
True. K&A is to protect persons / property, not prevent LE from seeing or seizing evidence. [Hudson v. MI]
181
SIA arrest case?
Chimel
182
Exception to Miranda in emergency situation case?
Hint: Gun in supermarket. Playground. Kindergarden.
NY v. Quarles
183
What case? "Clerical error where clerk told police there was a warrant when there was not. Officer acted lawfully b/c he acted on objective gf."
Herring v. US
184
Essay questions for Miranda scenario?
If waived?
1. Did police subject purp to custodial interrogation?
2. Miranda given?
3. Invoke rights?
4. Waive rights?
If waived, was a statement then given? [DP Question, looking at voluntariness]
185
Miranda custody)
When looking at custody for purposes of Miranda, we ask if [formal arrest] or [restraint on freedom] of the degree associated with formal arrest?
TOC, objective test.
Case?
Thompson v. Keohane [1994]
186
Thompson v. Keohane asks what? [Miranda custody analysis] ---- NOT SEIZURE
1. Formal arrest
2. Restraint on freedom [of degree associated w/ formal arrest]
Objective, TOC test
187
T/F) Regarding Miranda custody analysis, the officer's subjective intentions / beliefs do not matter unless communicated to the suspect.
True
Miranda custody if:
1. Formal arrest or similar restraint on freedom [Thompson v. Keohane]
2. Interrogation or functional equivalent that officers should know would or may elicit an incriminating response. [RI v. Innis]
188
Miranda interrogation)
This case said interrogation can be:
1. Direct [express] Qs
2. Functional equivalent [words or actions LE should know would elicit incriminating response from average suspect]
Rhode island v. Innis
189
What case for Miranda interrogation analysis?
RH Island v. Innis
190
Questioning by undercover agent of someone in custody is not miranda interrogation. Why not?
There is no coercive atmosphere to dispel if you don't know you are talking to police. [Perkins]
191
T/F) Routine booking Qs are not considered interrogation.
True!
192
Who must prove that Miranda warnings were given b4 custodial interrogation undertaken?
The state
193
For Miranda warnings, police need only communicate main ideas of the rule, not exact words.
FL v. Powell [2010]
194
K&A case and rules?
Wilson v. Arkansas
1. Identify as police
2. Identify purpose
3. Delay entry
195
T/F) Items discovered in plain view must have been inadvertent.
False
196
Plain view guidelines?
1. Police must be in place where they have right to be
2. Nature of item as contraband must be readily apparent
3. Cannot manipulate the scene
197
T/F) If 1st statement is [unwarned] but voluntarily made, then 2nd statement might be admissible if 2nd statement was also voluntary AND proper Miranda given.
True! [Oregon v. Elstad]
198
What case showed us that "a suspect can make a statement that is admissible in court after being read his Miranda warnings even if he previously made an unwarned statement, because the initial failure to read a suspect his Miranda warnings does not taint later voluntary statements."
Oregon v. Elstad
199
What's important about Oregon v. Elstad?
Showed that 2nd statement is admissible when Miranda given in spite of previous unwarned statements.
200
"Cat out of the bag case"
Oregon v. Elstad
201
Analyze Miranda waiver factors.
Prosecution must prove waiver by what standard?
1. Voluntary [Can be express or implied]
2. Knowingly & intelligently
*** Objective, TOC test***
Prosecution must prove waiver by preponderance of the evidence.
202
Can miranda waiver be express and implied?
Yes. Miranda can be waived by actions. IE: Talking to the police.
203
ROL: "If a defendant does not invoke his right to remain silent after fully understanding his Miranda rights, he implicitly waives his Miranda rights by making a voluntary statement to police."
Berguis v. Thompkins
204
Miranda waivers requires that ∆ "knowingly and intelligently" waived the right. What factors considered here?
1. Language barriers?
2. Given time to read miranda warnings?
3. ∆ smart enough to understand?
4. ∆ drunk? High?
5. ∆ under stress?
205
What case for [invocation] of Miranda rights?
Davis v. US
206
For Invoking Miranda RTC/RTS, it must be ____ and _____ invoked. This is an _____ inquiry.
1. Clearly and unequivocally
2. Objective
US v. Davis
207
T/F) Silence in the face of questioning is not invocation of rights.
True
208
In ____ v. NY, D was not warned of RTC and made statements. Then, Court allowed statements for impeachment b/c he testified inconsistent with those statements at trial.
Harris v. NY
209
Exception to Harris v. NY?
If statement was involuntarily made, then it cannot be used even for impeachment.
210
ROL: "Statements made by a suspect who has not received the Miranda warnings may be admitted at trial for impeachment purposes." ---- UNLESS, statement was not given voluntarily.
Harris v. NY
211
ROL: "Miranda v. Arizona. 384 U.S. 436 (1966), does not bar police from subsequently questioning a suspect who previously invoked his right to remain silent, as long as the suspect’s right to end questioning has been scrupulously honored."
Michigan v. Mosley
212
1. (T/F) Police may NOT reinitiate interrogation after RTC invocation.
2. Exceptions if true?
1. True. This is bright line rule.
2. Lawyer present + Miranda waiver. [Edwards-Minnick rule]
213
The Edwards-Minnick rule requires what?
***Applies after invocation of RTC***
1. Lawyer present
2. Miranda waived
214
T/F) When there has been a "break in Miranda custody," the bright-line rule of Edwards-Minnick does NOT apply.
True. Police may reinitiate if fresh Miranda given. Break must have been at least 14 days.
215
Break in custody after invoking miranda
RTC?
1. 14 days
2. Give Miranda again
216
Under the holding in __________ v. New York, 445 U.S. 573 (1980), even if a police officer has probable cause to make an arrest, the officer cannot enter the arrestee’s home without a warrant to effectuate the arrest.
Payton
217
True of False. When really minor offenses are involved (e.g., failure to wear a seatbelt), the police are precluded from making warrantless custodial arrests.
False. [Atwater]
218
True or False. Once a police officer makes a valid custodial arrest, the officer is entitled to make a search incident to that arrest.
True [Chimel]
219
True or False. The search incident to legal arrest exception allows the police to search only the area within the arrestee’s immediate control.
True [Chimel]
220
True or False. When the police arrest someone who is driving a vehicle, the search incident to legal arrest exception provides the police with the automatic authority to search the passenger compartment of the vehicle.
False. Need RS. [AZ v. Gant]
221
True or False. When the police arrest someone who is in possession of a smart phone at the time of the arrest, the police can search the contents of the smart phone incident to that arrest.
False. [Riley]
222
True or False. The automobile exception only applies to automobiles so that mobile homes are treated like houses rather than like automobiles.
False [Carney]
223
T/F) The automobile exception does not apply to a vehicle that is parked by the side of the road.
False
224
True or False. When the police search a vehicle under the automobile exception, they are prohibited from opening containers that they find in the vehicle
False. [CA v. Acevedo]
225
T/F) An inventory search can be conducted whenever the police lawfully impound a vehicle.
Bertine
226
True or False. Courts are more inclined to uphold inventory searches as “reasonable” if the police department has reasonable standards and guidelines governing the conduct of inventory searches.
True. [Bertine]
227
T/F) A warrantless arrest is permitted if there is probable cause to believe the person has committed a felony.
True [Watson]
228
T/F) True or False. Before an individual can be asked to consent to a search or seizure, he/she must be informed of his/her right to refuse consent.
False. [Bustamonte]
229
True or False. When the police ask a husband and wife for permission to search their home, and both of them are present, and one of them consents, but the other adamantly refuses to give consent, the police are free to enter the house.
False. [Randolph]
230
True or False. A warrantless search is constitutional when the police reasonably, but erroneously, believe that the person who consented to their entry is a resident of the premises.
True. [Randolph]
231
In _____ v. _______ 392 U.S. 1 (1968), the Court announced the “stop and frisk” exception to the warrant requirement.
Terry v. Ohio
232
[Seizure cases]
1. Mendenhall: RAP not feel free to leave
2. Hodarii: Submit to authority or use of physical force
3. Torres madrid: [attempts] to use physical force also seizure, even if unsuccesful.
233
True or False. When the police execute a warrant at a house, related to the robbery of a restaurant, they can make a “protective sweep” of the house for individuals who may present a danger to the police.
True. [Buie]
234
Under ____ v. US, statements made following [illegal arrest] may be admitted if "sufficiently an act of free will to purge the primary taint." This case was analyzed in Brown v. Illinois which then provided additional factors.
Wong Sun v. US [Attenuation Doctrine]
235
Wong Sun v. US means you can still use evidence stemming from illegal arrest if what?
If the connection between the illegal action and evidence is weakened enough, then the evidence may be used. [Attenuation of the taint]
Brown v. Illinois:
1. Lack of LE impropriety
2. Lack temporal proximtiy
3. Intervening factors
236
When does 6A RTC attach?
When "adversarial judicial criminal proceedings" have been initiated. [Charged, hearings, indictment, arraignment, etc.]
237
T/F) 6A RTC is offense specific.
True.
238
What is the Massiah rule?
If 6A RTC attached...
1. Cannot illicit incriminating response unless...
2. Counsel present + fresh Miranda waived
239
US v. Henry
After 6A RTC attaches, informants may only "passively listen."
240
T/F) A waiver pursuant to Miranda also sufficiently serves as waiver of 6A RTC. Case if true?
True. Patterson v. Illinois
241
ROL: "Provided a defendant is made aware of the dangers and disadvantages of representing himself, by use of the Miranda warnings, his waiver of his Sixth Amendment right to counsel during postindictment questioning is knowing and intelligent."
Patterson v. Illinois
242
True or False. A suspect’s Fifth Amendment privilege against self-incrimination is violated when the police force the suspect to participate in a lineup.
False [Dionsio]
243
T/F) Even suggestive identifications may be admissible if they are reliable. If true, what are the factors?
True. This comes from Neil v. Biggers:
1. Opp to view ∆
2. Degree of attention
3. Witness certainty
4. Accuracy of witness description
5. Time lapse between incident and ID
244
Unwarned statements [miranda] may still be used at trial for impeachment purposes. This ensures ∆s don't comit perjury on the stand.
So long as there was no coercion for the first statement. [Harris v. NY]
245
Evidence obtained in violation of the 6A may be admitted if police would have inevitably discovered it. [Like finding a body]
Nix v. Williams
246
The _________ exception to the exlcusionary rule admits evidence seized in violation of 4A if...
1. Lack of flagrant impropriety
2. Lack of temporal proximity
3. or intervening circumstance attenuated the chain
**TOC analysis**
Attenuation of taint exception
247
Attenuation of taint exception factors?
1. Lack flagrant impropriety
2. Lack of temporal proximity
3. Intervening circumstance
**TOC analysis**
248
What are the three factors to satisfy attenuation of taint exception to ER?
1. Lack of flagrant impropriety
2. Lack of temporal proximity
3. Intervening factors
** TOC analysis**
249
What case analyzed Wong Sun and introduced you to [Attenuation of taint] exception to ER?
Brown v. Illinois
250
4 exceptions to exclusion?
1. Good faith
2. Inevitable discovery [Nix v. Williams]
3. Independent source D [murray]
4. Attenuation of taint [Brown v. Illinois]
251
[Cases]
1. Miranda waiver can be inferred. IE: Talking to police.
2. Miranda waiver is sufficient to waive 6A RTC.
3. Initial failure to read Miranda does not taint later voluntary statements.
4. Homicides do not justify exceptions to the warrant requirement.
5. Inventory exceptions
1. Berghuis v. Thompkins / Butler v. NC
2. PATTERSON
3. Oregon v. Elstad
4. Mincey v. Arizona
5. Bertine
252
Cases?
MIRANDA
1. Custodial arrest +
2. Interrogation
ER EXCEPTIONS
1. Inevitable discovery
2. Attenuation of the taint
FRISK
1. Limited pat down for armed and dangerous w/ RS
2. Plain touch
MIRANDA
1. Thompson v. Keohane
2. Rhode Island v. Innis
ER EXCEPTIONS
1. Nix v. Williams
2. Brown v. Illinois
FRISK
1. Terry v. Ohio
2. MN v. Dickerson
253
Terry stop for pat down frisk needs RS or PC?
RS = fair possibility
254
TS for frisk pat down limited to what?
Limited to pat down for weapons. Must be readily apparrent to the touch. "Plain-touch" from MN v. Dickerson.
255
Terry Stops are limited to persons whom the police officer believes may be _____ & _______. IE: Cops can't just stop someone who they believe may have done something wrong but must believe they meet above criteria.
"Armed & dangerous"
256
Valid warrant?
1.
2.
3.
1. Considered & Issued by neutral / detached magistrate
2. Based on probable cause
3. Describe with particularity spaces to be searched
257
Absent special authorization or ____ ______, when the police are executing a warrant, they must knock and announce themselves.
Exigent circumstances [Wilson v. Arkansas]
258
In this case, the Court rejected the idea that the plain view discovery must be inadvertent.
Horton v. CA
259
T/F) Law enforcement officers can seize objects in plain view without a warrant, such as drugs seen in car during routine traffic stop.
True! [Texas v. Brown]
260
The case of Texas v. Brown showed us what?
"Law enforcement officers can seize objects in plain view without a warrant, such as drugs seen in car during routine traffic stop."
261
Under the holding in _______ v. NY 445 U.S. 573 (1980), even if a police officer has probable cause to make an arrest, the officer cannot enter the arrestee’s home without a warrant to effectuate the arrest.
[Payton]
262
Payton cased showed us what?
Even when armed with PC, police may not enter home to effectuate arrest without warrant.
263
In __________ v. US, 451 U.S. 204 (1981), the Court held that the officer must obtain a search warrant in order to enter the house of a third person to effectuate an arrest.
Steagald
264
1. Payton
2. Steagald
1. Cannot go into arrestees home to effectuate arrest [even with PC] with warrant.
2. Cannot go into 3rd party home to effectuate arrest without search warrant for that home to search for the arrestee in question.
265
When should Miranda be read?
1. Custodial arrest [Thompson v. Keohane]
2. Interrogation or functional equivalent [Rhode Island v. Innis]
266
Can a statement that was given during a warrantless [unlawful] home search still be used later for impeachment?
Yes, if it was voluntary and not coerced. [Harris]
267
Miranda waiver is valid when?
1. Knowing & Intelligently
2. Voluntary [not coerced]
TOC analysis
268
This case shows us that a statement is not voluntary when it was forced by police. Which also means, there has been a violation of Due Process.
Colorado v. Conolley
269
What case do you cite when police forced a statement out of someone.
Colorado v. Conolley
270
T/F) A ∆s mental condition alone does not a confession involuntary.
True, there must be forced coercion by police such as to violate due process. [Rehnquist in Colorado v. Connolley]
271
"Evidence can be admitted at trial when it was initially obtained illegally but later obtained lawfully and independently"
Independent source doctrine [Murray] Sometimes police make innoccent mistakes, that is not always BF.
272
Murray case showed what?
Illegally obtained evidence may still be used if it is later obtained independently through lawful means.
273
1. Independent source doctrine
2. Inevitable discovery
3. P/V ok in traffic stops
1. Murray
2. Nix v. WIlliams
3. Texas v. Brown
274
Physical abuses raises due process concerns. IE: Coercion. What case to argue in support?
Colorado v. Connolley
275
Does interogatting ppl who are mentally ill violate DP for coercion?
No. [Colorado v. Conolley]
276
This case famously incorporated the 6A RTC.
Gideon
277
Case for ineffective assistance of counsel?
Strickland
278
How to argue IAC under strickland?
1. Deficient service
2. So deficient that it prejudiced the defense so as to deny a fair trail
279
Is there REOP in an open field?
No.
280
Is there REOP in curtilage?
Dunn factors determine....
1. Fenced in?
2. proximity to home?
3. Nature of use?
4. Efforts to conceal
281
Dunn factors for curtilage?
1. Enclosed?
2. Proximity to home?
3. Nature of use?
4. efforts to conceal?
282
"Evidence obtained in reasonable, good-faith reliance on a facially valid search warrant is not subject to the Fourth Amendment’s exclusionary rule, even if the warrant is later deemed defective."
US v. Leon
283
T/F) The automobile exception is partially justified by the fact that automobiles are viewed as being associated with a diminished expectation of privacy.
True
284
T/F) The automobile exception does not apply to a vehicle that is parked by the side of the road.
False. [Carney]
285
In order to conduct an automobile search, the police must possess _____ _______ to believe that the fruits, instrumentalities or evidence of crime can be found in the vehicle to be searched. See California v. Carney, 471 U.S. 386 (1985).
Probable cause is required.
286
True or False. Under the automobile exception, the police are authorized to search the entire vehicle.
False, only those areas for which they have PC.
287
True or False. When the police search a vehicle under the automobile exception, they are prohibited from opening containers that they find in the vehicle.
False. CA v. Acevedo
288
T/F) An inventory search can be conducted whenever the police lawfully impound a vehicle.
True. [Bertine]
289
True or False. Courts are more inclined to uphold inventory searches as “reasonable” if the police department has reasonable standards and guidelines governing the conduct of inventory searches.
True. [Bertine]
290
Analysis for officers who pat down suspect?
1. RS = Reasonable articulable suspicion
2. More than hunch but less than a certainty
3. RS that they are "armed and dangerous" [Terry v. Ohio]
4. Pat down on top clothes only and for weapons, may not manipulate. [MN v. Dickerson]
291
Analysis for Officer who arrests someone?
Public space:
1. Armed with PC = fair probability [TOC]
2. In a public space where Officer has right to be?
3. PC that person committed a crime or is committing one.
In a home:
1. Warrant needed to go into home
2. Search warrant needed to go into 3rd party home
292
[A warrant issued by a government enforcement agent is per se invalid.] Any search or seizure made under such a warrant is unconstitutional, unless it falls within one of the recognized exceptions to the warrant requirement.
Coolidge v. NH [Warrant issued by Prosecutor instead of neutral and detached magistrate]
293
Consent to search must be what?
1. Freely and voluntarily given
2. No coercion / duress [such as threatening police
dog at car stop]
3. Can give consent even if they didn't know they could refuse
[Bustamonte]
294
Key case for consent?
Bustamonte
1. Freely and voluntarily given
2. No coercion
3. Can give consent even if they didn't know they could refuse.
TOC
Search are limited to areas of consent unless you find PC in one of those areas...
295
Key case for traffic stops being prolonged?
Rodriguez
296
T/F) A traffic stop cannot be prolonged beyond time necessary to handle the original reason for the stop
True [Rodriguez]
297
T/F) Under the Fourth Amendment, a police officer may not prolong a routine traffic stop to have a drug-sniffing dog walk around the vehicle.
True. [Rodriguez]
298
If police get consent to search a house/car/etc. by implying they have a warrant = the search is therefor invalid. [Case?]
Bumpers v. NC
299
Police may stop persons under Terry when?
1. RAS that person is Armed and dangerous
2. RAS that criminal activity afoot
300
T/F) Under the Fourth Amendment, a police officer may not prolong a routine traffic stop to have a drug-sniffing dog walk around the vehicle.
True [Rodriguez]
301
Are miranda warnings required in Terry stops?
No, this is not "miranda custody" it is a seizure.
302
To execute lawful arrest, Officer must be armed with what?
PC that ∆ has comitted or his committing a crime.
PC = fair probability
"Enough particularized facts to lead reasoanble average officer to believe crime has been or will be committed." > Looking for a fair probability that is objective under TOC.
303
PC for arrest analyzed how?
1. TOC
2. Objective
3. Fair "articulable" probability
304
When is SIA and what can be searched?
1. After lawful arrest
2. Within reaching distance / "wingspan"
305
Test for plain view?
1. Right of access [lawfully present in space]
2. Incriminating nature readily apparrent
3. no manipulation
Cases: Wilson v. Arkansas
MN v. Dickerson
Brown v. TX
306
Miranda warnings required unless a pertinent exception applies... such as what?
Hint: Supermarket scenario with gun on ground somewhere in the store.
NY v. Quarles
307
Test for lawful arrest?
1. Enough particularized facts to lead a reasonable officer to believe...
2. There is a fair probability that D committed crime
3. TOC
4. Objective
