Crimpro Flashcards
(140 cards)
1
Q
THE BASICS
definition
[the exclusionary rule]
A
= prohibits the prosecution from using in its case-in-chief evidence obtained in violation of D’s
- Fourth Amendment rights
- Fifth Amendment rights
- Sixth Amendment rights
2
Q
THE BASICS
8 exceptions
[the exclusionary rule]
A
exclusionary rule does NOT apply
- to GRAND JURY proceedings
- in CIVIL proceedings like IRS civil proceedings and IMMIGRATION hearings
- when the search violated an AGENCY’S internal policies or STATE law (aka applies only when search violates either U.S. Constitution or fed statute)
- to PAROLE REVOCATION proceedings
- as a remedy for failure to KNOCK & ANNOUNCE
- where use of the illegally obtained evidence was HARMLESS ERROR
- good faith exceptions (5)
- impeachment exceptions (2)
3
Q
THE BASICS
5 good faith exceptions
[the exclusionary rule]
A
The exclusionary rule does NOT apply
- if the pigs relied in GOOD FAITH on binding APPELLATE PRECEDENT that is LATER OVERTURNED by a Supreme Court decision
- if the pigs relied in GOOD FAITH on STATUTE/ORDINANCE that is LATER declared UNCONSTITUTIONAL
- if the pigs made a REASONABLE MISTAKE in INTERPRETING the law (ex = that vehicle must have 2 working brake lights when only 1 was required didn’t invalidate stop or arrest)
- if the pigs relied in OBJECTIVE GOOD FAITH on COMPUTER INFO with CLERICAL ERRORS (ex = arrest warrant had been withdrawn but remained on computer system due to an error by court personnel)
- if the pigs relied in OBJECTIVE GOOD FAITH on a DEFECTIVE SEARCH WARRANT
4
Q
THE BASICS
2 impeachment exceptions
[the exclusionary rule]
A
Evidence excluded under the exclusionary rule may be used for impeachment purposes in the following situations
- An otherwise VOLUNTARY CONFESSION
- that violates MIRANDA or SIXTH Amendment (and thus would not be admissible in prosecution’s case-in-chief)
- may be used to impeach D as a witness
- (BUT a truly involuntary confession may not) - Evidence obtained in an ILLEGAL SEARCH
- may be used to impeach
- D’s credibility as a witness (ex = if he lies about possession of the evidence)
- (BUT may not be used to impeach other witnesses)
5
Q
FRUIT OF THE POISONOUS TREE
definition
[the exclusionary rule]
A
A court will exclude not only illegally seized items but also all evidence derived from exploiting illegally seized items
(this doctrine expands the scope of the exclusionary rule)
6
Q
FRUIT OF THE POISONOUS TREE
5 exceptions
[the exclusionary rule]
A
The evidence will not be excluded where the government can break the link between the unconstitutional act and the evidence, such as
- the pigs had an INDEPENDENT source
- INEVITABLE discovery
- INTERVENING acts of free will on the part of D
- ATTENUATION doctrine
- Also if an illegal search enables the pigs to LOCATE A WITNESS, the witness’ testimony will rarely be excluded as fruit of the poisonous tree
7
Q
FRUIT OF THE POISONOUS TREE
attenuation doctrine
[the exclusionary rule]
A
= intervening circumstances between the unconstitutional po-po act and discovery of the evidence
EXAMPLE = officer lacked reasonable suspicion to initially stop D, but officer’s discovery of valid pre-existing arrest warrant attenuated the connection between the unlawful stop and drug-related evidence seized from defendant during search incident to arrest and thus the evidence was admissible
8
Q
FRUIT OF THE POISONOUS TREE
confessions that violate the Fifth and Sixth amendments
[the exclusionary rule]
A
Confessions obtained in violation the Fifth or Sixth Amendment are inadmissible as evidence of guilt
9
Q
FRUIT OF THE POISONOUS TREE
confessions that violate the Fourth amendment
[the exclusionary rule]
A
Confessions resulting from an illegal arrest are inadmissible, unless there is a weak link between the illegal po-po conduct and the challenged evidence
10
Q
FRUIT OF THE POISONOUS TREE successive confessions (w/ and w/o miranda warnings)
[the exclusionary rule]
A
Issue = If a defendant (subject to custodial interrogation) confesses without receiving Miranda warnings and then confesses again after receiving Miranda warnings, is the second confession tainted by the earlier unlawful confession?
“Question first, warn later” nature of the questioning was a CALCULATED TECHNIQUE to undermine Miranda = 2nd confession probs inadmissible
“Question first, warn later” nature of the questioning was UNPLANNED and INADVERTENT = 2nd confession probs admissible
11
Q
THE BASICS
when must Miranda warnings be given?
[miranda warnings]
A
The pigs must give Miranda warnings to any person
- in CUSTODY
- who is subject to INTERROGATION
- by GOV officials
(no matter how minor the crime)
12
Q
THE BASICS
custody
[miranda warnings]
A
a person is in custody when a reasonable person would conclude that he or she is not free to terminate the interrogation and the relevant environment presents the same inherently coercive pressures as station-house questioning (i.e., po-po car, handcuffs)
BUT routine traffic stops, Terry stops, general questions at the scene of a crime, voluntary appearances at the pigs’ station, and probation officer interviews are usually not considered “custody”
13
Q
THE BASICS
interrogation
[miranda warnings]
A
=any conduct (e.g., questions, statements, actions) by the po-po for the purpose of eliciting damaging statements
14
Q
CONFESSIONS
3 key takeaways
[miranda warnings]
A
- All confessions must be voluntary under DUE PROCESS CLAUSE
- Voluntariness is judged on a SUBJECTIVE basis, considering the TOTALITY of the circumstances
- A confession is involuntary only if it is the result of PO-PO COERCION (as opposed to D’s mental illness or coercion by private parties)
15
Q
CONFESSIONS
4 factors in assessing voluntariness of confessions
[miranda warnings]
A
- the defendant’s personal characteristics (e.g., age, intelligence)
- the nature of the detention
- the manner of interrogation
- the use of force, threats, promises, or deceptions
16
Q
CONFESSIONS
procedural requirement for hearing to determine confession admissibility
[miranda warnings]
A
The hearing to determine the admissibility of a confession must be done outside the presence of the jury
17
Q
CONFESSIONS
3 instances in which Miranda warnings NOT required
[miranda warnings]
A
- before SPONTANEOUS STATEMENTS
(aka when person blurts out info) - in case of PUBLIC SAFETY EMERGENCY
(ex = D, who is in po-po custody at the scene of a crime, is asked, “where did you toss the gun?”) - for WITNESS SUBPOENAED to testify before GRAND JURY
18
Q
CONFESSIONS
prosecutorial misconduct
[miranda warnings]
A
The prosecutor may not “comment” to the jury about a person’s exercise of his Miranda rights or D’s refusal to testify at trial.
19
Q
CONFESSIONS
waivers of miranda (3 things)
[miranda warnings]
A
- Waivers must be KNOWING, VOLUNTARY, and INTELLIGENT
- Waivers will NOT be presumed
- NOTE = failure of the pigs to inform a suspect that his family has retained an attorney for him (and that the attorney has been in contact with the pigs) does not invalidate the suspect’s waiver of his Miranda rights
20
Q
FIFTH AMENDMENT PRIVILEGE
terminating interrogation
[interrogation]
A
- An accused may terminate interrogation
- prior to or during the interrogation
- by invoking either
a. the right to remain silent or
b. the right to counsel
21
Q
FIFTH AMENDMENT PRIVILEGE
invoking right to remain silent
[interrogation]
A
If an accused UNAMBIGUOUSLY invokes the right to remain silent, the pigs must cease questioning (aka SCRUPULOUSLY HONOR the request)
BUT later questioning may occur after a DELAY and with NEW Miranda warnings (at least in regard to a different crime)
NOTE = detainee’s SILENCE does NOT constitute INVOCATION of right to remain silent
22
Q
FIFTH AMENDMENT PRIVILEGE
invoking right to counsel
[interrogation]
A
Once the accused makes an UNAMBIGUOUS request for counsel to assist with custodial interrogation, questioning must cease and CANNOT BE RESTARTED by the pigs (for entire time accused is in custody AND 14 days thereafter)
UNLESS
1. the attorney is actually PRESENT for the future interrogation or
2. the accused INITIATES further communication, exchanges, or conversations about the investigation (ex = by asking “What is going to happen to me now?”)
(NOTE = this invocation is NOT offense-specific)
(also, this is the only use of 5th amendment for right to counsel)
23
Q
FIFTH AMENDMENT PRIVILEGE
use of informant
[interrogation]
A
NOT a violation of the Fifth Amendment to place an informer (or undercover officer) in the accused’s cell to elicit statements from the accused
(b/c Miranda is inapplicable to interrogation by someone the accused does not know is a pig BUT if the accused has been CHARGED, the Sixth Amendment would apply)
24
Q
SIXTH AMENDMENT PRIVILEGE
right to counsel
[interrogation]
A
Under the Sixth Amendment, there is a right to counsel AFTER the accused has been charged or indicted
The accused’s lawyer must be present for ANY FURTHER interrogation at this point
The Sixth Amendment is OFFENSE-SPECIFIC = the pigs may interrogate the accused about different crimes (related or unrelated to the charged crime)
25
SIXTH AMENDMENT PRIVILEGE
waiver of right to counsel
[interrogation]
The accused may waive his Sixth Amendment right to counsel
this waiver does NOT require approval or presence of court-appointed counsel (at least where the accused did not request such appointment)
26
SIXTH AMENDMENT PRIVILEGE
blockburger test
[interrogation]
two crimes are considered different if each requires proof of an additional element that the other crime does not require
(relevant b/c privilege is offense-specific, need to know if it's a different crime)
27
SIXTH AMENDMENT PRIVILEGE
use of informant
[interrogation]
Once the defendant is charged (or indicted), the pigs may not place an informer in his or her cell to elicit statements (i.e., initiate a confession) from the accused about the crime for which he or she has been charged
BUT it’s NOT a violation of Sixth Amendment
1. to place an informer in the accused’s cell MERELY TO LISTEN to the accused
2. to place an informer or undercover officer in the accused’s cell to ELICIT statements about a DIFFERENT crime
28
SIXTH AMENDMENT PRIVILEGE
limits on prosecution
[interrogation]
Statements obtained in violation of the Sixth Amendment may NOT be used in the prosecutor’s CASE-IN-CHIEF
BUT may be used to impeach D’s contrary trial testimony
29
PRETRIAL IDENTIFICATION
purpose of limitations to pretrial IDs
[witness identifications]
to ensure that when a witness identifies a person at trial, she is identifying the person who committed the crime
(not merely the person she saw at the po-po station)
30
PRETRIAL IDENTIFICATION
2 ways to challenge pretrial ID
[witness identifications]
1. Denial of 6th amendment right to counsel = applies only to POST-CHARGE line-ups and show ups, doesn’t apply to photo identifications)
2. Denial of due process = the pigs used techniques that are UNNECESSARILY SUGGESTIVE and SUBSTANTIALLY LIKELY to produce misidentification
31
PRETRIAL IDENTIFICATION
2 remedies
[witness identifications]
1. If the pretrial identification violates the defendant’s Sixth Amendment or Due Process rights, the pre-trial identification is inadmissible at trial.
2. In addition, the witness will be precluded from making an in-court identification, unless the government can show by clear and convincing evidence an independent source for the in-court identification, such as where the witness had a good view of the accused at the time of the crime or where the witness’s initial description was precise and later corroborated
32
CONFRONTATION CLAUSE
confession of co-defendant
[pretrial and trial procedures]
If two defendants are tried jointly and a confession given by one of them implicating the other is admitted into evidence, this violates the confrontation clause, because the person implicated has no right to compel the other defendant to testify so that he may be cross-examined about the confession.
This is true even if both defendants have given interlocking confessions.
The confession of one may be used, however, if all references to the other defendant are removed (including any redactions that implicitly refer to the other defendant) or if the confessing defendant testifies
33
GOVERNMENT’S BURDEN OF PROOF
3 key takeaways
[pretrial and trial procedures]
1. The state must prove all elements of the crime beyond a reasonable doubt.
2. Other than prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.
3. Any fact that increases the mandatory minimum sentence also must be submitted to the jury and proved beyond a reasonable doubt.
34
DEFENSES
3 takeaways
[pretrial and trial procedure]
1. The state may impose the burden of proof upon the defendant with regard to affirmative defenses, such as insanity or self-defense.
2. Alibi is not an affirmative defense but rather negates an essential element of the crime. Thus, the state may not impose the burden of proving alibi on the defendant, but the state may require the defendant to give advance notice of his intent to claim alibi.
3. A defendant is entitled to have access to a psychiatrist and a psychiatric exam when raising an insanity defense.
35
RIGHT TO A JURY
when does trial by jury apply?
[trial procedure]
whenever D is tried for an offense if max authorized sentence for this offense EXCEED 6 MONTHS
36
RIGHT TO A JURY
calculating whether max authorized sentence triggers jury trial
[trial procedure]
judged on an offense-by-offense basis rather than an aggregate basis
AKA right to a jury does NOT arise when, in a single proceeding, sentences for multiple petty offenses result in an aggregate prison term of more than 6 months
37
RIGHT TO A JURY
unconstitutional peremptory challenges
[trial procedure]
peremptory challenges for racial or gender bias = unconstitutional
38
RIGHT TO A JURY
juror quantity/unanimity
[trial procedure]
FED court juries must contain 12 members and reach a UNANIMOUS verdict
STATE court juries may be as small as 6 members BUT
6-member jury requires unanimity
12-member jury does not require unanimity (ex = 9-3 vote to convict is constitutional)
39
RIGHT TO A JURY
right to jury in juvenile delinquency proceedings
[trial procedure]
TRICK
There is no right to a jury in juvenile delinquency proceedings.
40
RIGHT TO A JURY
waiver to right to jury
[trial procedure]
D may waive the right to a jury trial if the waiver is VOLUNTARY, KNOWING, and INTELLIGENT
In most jurisdictions, the prosecutor may VETO D’s waiver and insist upon a jury trial
41
RIGHT TO COUNSEL
4 instances where D has right to counsel
[trial procedure]
1. all important stages of the case (from custodial police interrogation to an appeal as a matter of right)
2. plea bargaining process
3. All felony cases
4. In misdemeanors cases only if imprisonment is ACTUALLY IMPOSED (including suspended sentences w/ probation)
42
RIGHT TO COUNSEL
8 instances where D has NO right to counsel
[trial procedure]
1. Misdemeanor cases if the punishment is probation, fines, or community service
2. a grand jury proceeding
3. the taking of physical evidence, such as handwriting exemplars or fingerprints
4. a pre-indictment (or pre-charge) lineup
5. a pre- or post-indictment photo display
6. the initial appearance to determine probable cause to detain the defendant (Gerstein Hearing)
7. discretionary appeals
8. state post-conviction proceedings
43
RIGHT TO COUNSEL
standard for reviewing denials of right to trial
[trial procedure]
Denial of the right to counsel at trial is reversible error per se; the harmless error rule applies to non-trial deprivations of counsel.
44
RIGHT TO COUNSEL
pro se representation
[trial procedure]
An accused has a right to proceed pro se at trial as long as his waiver of the right to counsel is knowing and intelligent and he is competent (i.e., this requires a mental state somewhat greater than that required to stand trial).
There is no right to proceed pro se on appeal.
45
RIGHT TO COUNSEL
freezing D's assets
[trial procedure]
Gov’s pretrial freeze of a defendant's LEGIT, UNTAINTED assets which she needed to retain counsel violates the Sixth Amendment
BUT forfeiture of tainted assets is not a violation of the Sixth Amendment
46
RIGHT TO COUNSEL
effective assistance of counsel
[trial procedure]
Right to counsel = right to EFFECTIVE counsel = ineffective assistance of counsel violates 6th amendment
To prevail on ineffective assistance claim, accused must show
1. that counsel’s performance was deficient (well below that of a competent lawyer) and
2. but for the deficiencies, the result of the proceeding would have been different
47
SENTENCING + RETRIAL
resentencing after appeal
[post-trial procedure]
Rule = resentencing after a successful appeal may not be harsher than the initial sentence
EXCEPTIONS = a harsher sentence is permissible if
1. D’s conduct AFTER the first conviction merits additional punishment OR
2. the second sentence is determined by a JURY (and not a judge)
48
SENTENCING + RETRIAL
sentencing guidelines
[post-trial procedure]
ADVISORY sentencing guidelines = valid
MANDATORY sentencing guidelines = generally unconstitutional
49
SENTENCING + RETRIAL
prosecuting after appeal
[post-trial procedure]
D may not be prosecuted for a more serious crime in the second trial than the one for which he was convicted in the first trial
50
DOUBLE JEOPARDY
use
[post-trial procedure]
Double Jeopardy bars retrial by the SAME SOVEREIGN for the SAME OFFENSE
51
DOUBLE JEOPARDY
application
[post-trial procedure]
For Double Jeopardy to apply, the accused must have been in JEOPARDY in an earlier proceeding (BUT doesn’t require the first trial end with an acquittal or conviction)
Double Jeopardy applies only if the accused is being tried a second time for the same offense
Double Jeopardy applies only if the second trial is by the same sovereign
52
DOUBLE JEOPARDY
same sovereign
[post-trial procedure]
fed gov and state gov can both charge/try D for same conduct
BUT a state and its municipalities are the same sovereign
53
DOUBLE JEOPARDY
when does double jeopardy attach?
[post-trial procedure]
jury trial = when jury is sworn
bench trial = when the first witness is sworn
54
DOUBLE JEOPARDY
4 situations where accused may be tried twice
[post-trial procedure]
1. jury at first trial was unable to agree on a verdict (aka HUNG JURY)
[on retrial, the prosecutor can re-try all charges in the prior trial, even if the former jury reached agreement (but did not return a verdict) on some of those charges]
2. first trial ended in MISTRIAL because of:
- a manifest necessity (ex = death or disability of judge or juror)
- a motion raised or supported by D or
- D’s misconduct
3. D may be retried after SUCCESSFUL APPEAL (unless the ground for reversal is the evidence was insufficient to support a guilty verdict aka appellate court says no reasonable jury could’ve found D guilty on evidence presented)
4. D BREACHED PLEA BARGAIN agreement (ex = D agreed to testify against his confederates in exchange for a lesser sentence, but later refused to so testify)
55
DOUBLE JEOPARDY
3 takeaways for same offense requirement
[post-trial procedure]
1. Two crimes are not the same offense if each crime requires proof of an independent element (e.g., manslaughter and reckless driving are separate offenses; reckless driving and drunk driving are separate offenses).
2. Trial for a lesser included offense is barred if defendant was put in jeopardy for a greater offense (e.g., a defendant acquitted of robbery cannot be retried for larceny or assault).
3. Likewise, if the defendant is tried for the lesser offense (e.g., assault), he or she may not be retried for the greater offense (e.g., robbery), except that an accused who was put in jeopardy for battery (or assault) may be tried for murder if the victim later dies.
56
DOUBLE JEOPARDY
2 takeaways for same sovereign requirement
[post-trial procedure]
1. Obvi federal government and state government can both try D for same criminal actions
2. BUT a state and its municipalities are the same sovereign
57
PRIVILEGE AGAINST COMPELLED TESTIMONY
what does this privilege protect?
[trial procedure]
1. Only COMPELLED, TESTIMONIAL evidence
58
PRIVILEGE AGAINST COMPELLED TESTIMONY
scope of privilege (4 key examples of what isn't protected)
[trial procedure]
1. doesn’t protect real or physical evidence (like pre-existing documents, journals, hand-writing samples, blood samples)
2. doesn’t protect a person from disclosing his identity (except in rare cases)
3. doesn’t protect someone from standing in a line-up
4. doesn’t protect someone from signing an authorization for prosecutor to receive records from 3P (like a foreign bank)
59
PRIVILEGE AGAINST COMPELLED TESTIMONY
production of documents
[trial procedure]
Rule = compelling a person (by subpoena) to produce documents (ex = diaries, tax returns) invokes fifth amendment privilege against self-incrimination protection when the act of producing the documents has testimonial significance (OBVI)
Test = the act of production has TESTIMONIAL SIGNIFICANCE when it
a. proves the EXISTENCE of the document OR
b. demonstrates POSSESSION AND CONTROL over the document OR
c. AUTHENTICATES the document
60
PRIVILEGE AGAINST COMPELLED TESTIMONY
corporate privilege
[trial procedure]
TRICK
Only humans can raise the privilege—NOT corporations, etc.
61
PRIVILEGE AGAINST COMPELLED TESTIMONY
3 instances where privilege doesn't apply to testimonial evidence
[trial procedure]
1. witness has received a GRANT OF IMMUNITY (either use & derivative use or transactional)
2. NO POSSIBILITY of INCRIMINATION (like statute of limitations) or witness has been ACQUITTED (and may not be retried)
3. witness has WAIVED the privilege
62
PRIVILEGE AGAINST COMPELLED TESTIMONY
2 types of immunity
(Where privilege against self-incrimination doesn’t apply even to testimonial evidence)
[trial procedure]
1. USE & DERIVATIVE USE immunity
= guarantees that the
testimony obtained AND the evidence located by this testimony
will not be used against the witness
by this jurisdiction AND other U.S. jurisdictions
as substantive evidence OR for impeachment
BUT such testimony can be used in prosecution for perjury
NOTE = This type of immunity IS sufficient to extinguish the privilege against compelled self-incrimination
2. TRANSACTIONAL immunity
(broader than the Use and Derivative Use Immunity)
= guarantees immunity
from prosecution
for any crimes related to the transaction
about which the witness testifies
(UH ALSO NOTE = kinsler’s outline does not expressly say this is sufficient but like…what)
63
PRIVILEGE AGAINST COMPELLED TESTIMONY
statute of limitations in criminal cases
[trial procedure]
USUALLY begins to run on the date the crime is COMMITTED
BUT for manslaughter (and other homicides with a SOL), SOL starts to run on date of victim’s DEATH (obvs subject to year-and-a-day rule)
64
PRIVILEGE AGAINST COMPELLED TESTIMONY
waiver of privilege
[trial procedure]
if criminal D takes witness stand and testifies on direct = he waives the privilege as to all legitimate cross-exam subjects
BUT D does NOT waive the privilege by testifying at a SUPRESSION hearing
65
PRIVILEGE AGAINST COMPELLED TESTIMONY
using D's silence against him in court
[trial procedure]
D’s silence AFTER receiving Miranda warnings can’t be used against him in court
D’s decision not to testify can’t be used against him in court
BUT the prosecutor can comment on D’s PRE-ARREST silence (ex = D claims self-defense in a murder case; on cross, prosecutor brought out fact D had left the scene of crime and, during 2 weeks btwn crime and arrest, didn’t go to the pigs to tell his story)
66
PROSECUTORIAL DUTY TO DISCLOSE
duty to disclose exculpatory information
[pre-trial + trial procedure]
Gov has a duty to TIMELY disclose MATERIAL, EXCULPATORY evidence to D
67
PROSECUTORIAL DUTY TO DISCLOSE
failure to disclose exculpatory information
[pre-trial + trial procedure]
Failure to do so, whether WILLFUL OR INADVERTENT, constitutes violation of DP Clause and is grounds for REVERSAL if
1. The evidence is FAVORABLE to D b/c it
a. impeaches or
b. is exculpatory AND
2. The failure was PREJUDICIAL
= a REASONABLE PROBABILITY
the result of case would’ve been different if the undisclosed evidence had been presented at trial
68
THE BASICS
constitutional protection
[arrest]
Fourth Amendment guarantees the right to be free from unreasonable arrests (aka seizures)
69
FOURTH AMENDMENT
definition
[arrest]
An arrest occurs when a person is taken into custody against his or her will for purposes of criminal prosecution or interrogation
There must be an intentional physical application of force by the police or a submission to an officer’s show of force
The test is = would a reasonable person believe that he or she is free to leave?
70
FOURTH AMENDMENT
requirements for lawful arrest
[arrest]
1. Warrant (or meets an exception)
| 2. Probable cause
71
FOURTH AMENDMENT
2 key examples of when arrest warrant IS required
[arrest]
1. NON-EMERGENCY arrests (felonies and misdemeanors) of person in person’s own home
(as opposed to hot pursuit or emergency assistance exception)
2. generally required for misdemeanor arrests
(exception = officer presence ya dumbo)
72
FOURTH AMENDMENT
3 key examples of when arrest warrant is NOT required
[arrest]
1. Arrest warrants are generally not required for felony arrests in public places
2. An arrest of a person just outside his home (or even in the threshold of the front door of his home) is a “public” arrest that does not require a warrant.
3. Arrest warrants not required for misdemeanor arrests if the misdemeanor was committed in the officer’s “presence.”
73
FOURTH AMENDMENT
executing an arrest warrant
[arrest]
The police may forcibly enter a person’s home to enforce an arrest warrant only if the police have reason to believe the person is at home at the time of the entry
If the police intend to execute an arrest warrant in the home of a third party, the police must have a separate search warrant to search for the subject of the arrest warrant (although the arrestee may lack standing to challenge a warrantless search)
74
FOURTH AMENDMENT
probable cause
[arrest]
The officer must have probable cause to make an arrest
For probable cause to exist, there must be a sufficient likelihood that a crime has occurred and that the arrestee has committed or is committing that crime
75
FOURTH AMENDMENT
effect of an illegal arrest
[arrest]
An unlawful arrest has no effect on a future prosecution, but evidence that is the fruit of unlawful arrest may be excluded under the exclusionary rule
An unlawful arrest may also lead to civil liability
76
THE BASICS
constitutional protection
[search + seizure]
Fourth Amendment guarantees the right to be free from unreasonable searches and seizures
77
FOURTH AMENDMENT
what must be shown to challenge a search under the Fourth Amendment?
[search + seizure]
(1) the search must be the result of STATE ACTION
(2) the person challenging the search must have STANDING to challenge the search; and
(3) the person searched must have had REASONABLE EXPECTATION OF PRIVACY in the place searched OR gov PHYSICALLY INTRUDED into CONSTITUTIONALLY PROTECTED area of D for evidence-gathering purposes
If these three elements are present, the search is unconstitutional UNLESS
(4a) the police had a valid search WARRANT
(4b) OR in GOOD FAITH relied on a DEFECTIVE one
(4c) OR there is an applicable EXCEPTION to the warrant requirement
78
4TH AMENDMENT CHALLENGE ELEMENTS
state action - requirement
[search + seizure]
= The Fourth Amendment applies only to government conduct, which includes searches by
1. publicly paid police at all times
2. a private individual acting at the direction of the police
3. public school officials
BUT does NOT include private persons (ex = mom or landlord) or privately paid police (ex = store security guard) acting on their own initiative
79
4TH AMENDMENT CHALLENGE ELEMENTS
standing - general rule
[search + seizure]
a person may assert the exclusionary rule only for violations of his OWN constitutional rights
AKA must have standing to object to illegality of a search
80
4TH AMENDMENT CHALLENGE ELEMENTS
standing - 4 times standing exists
[search + seizure]
1. the person owns or has a right to possession of the premises searched (including his or her own body)
2. the person lives on premises searched (e.g., roommate, tenant)
3. the person is an overnight guest on the premises searched
4. the person is in lawful possession and control of a rental car even if he is not listed on the rental agreement
81
4TH AMENDMENT CHALLENGE ELEMENTS
standing - 3 times standing does NOT exist
[search + seizure]
1. passengers in a car that do not own the car and deny ownership of the property taken from it (assuming car was lawfully stopped obvi—if unlawful stop, all occupants have standing to challenge the stop)
2. persons who do not own or live on the premises searched and who are not overnight guests on the premises
3. an individual briefly (not overnight) on the premises
82
4TH AMENDMENT CHALLENGE ELEMENTS
reasonable expectation of privacy - 4 places/things in which person has REP
[search + seizure]
generally has a REP in her
1. body (including wallets, purses, etc.)
2. Home
3. the curtilage of the home (ex = attached garage and a small yard adjacent to home)
4. private business premises (ex = an office or locker)
83
4TH AMENDMENT CHALLENGE ELEMENTS
reasonable expectation of privacy - 15 places/things in which person has NO REP
[search + seizure]
no REP if the item or place searched is PUBLIC IN NATURE or HELD OUT TO THE PUBLIC,
such as:
1. sound of a person’s voice (voice exemplar) or look of a person’s face
2. style of person’s handwriting (handwriting exemplar)
3. items of property the defendant has transferred (sold or given) to a third party
4. telephone numbers dialed (pen register)
5. paint on the outside of a car (scrapings)
6. account records held by a bank or other business (but a person has a REP in cell phone site location information held by a commercial vendor)
7. VIN numbers in cars (even if the police must move items to see the number)
8. anything that can be seen across open fields (i.e., outside the curtilage of her home)
9. DNA swabs (upon arrest for a serious crime)
10. anything that can be seen or photographed from a fly-over in public airspace (except for thermal imaging of the inside of a house)
11. odors coming from luggage (but not squeezing luggage)
12. odors coming from a vehicle (dog sniffing), as long as the vehicle was lawfully stopped and not held beyond the time necessary to issue a ticket
13. garbage set out at the curb or alley for collection
14. movement of a person or a person’s automobile (including with the use of electronic beepers if placed in the vehicle without committing a trespass)
15. material held out for sale to the public
84
4TH AMENDMENT CHALLENGE ELEMENTS
reasonable expectation of privacy - REP for parolees
[search + seizure]
Parolees generally waive their REP as a condition of parole
homes of persons on probation may generally be searched w/o a warrant
85
4TH AMENDMENT CHALLENGE ELEMENTS
physical intrusion - requirement
[search + seizure]
AKA trespass
= 4th Amendment search occurs if gov physically intrudes into D’s constitutionally protected areas for evidence-gathering purposes, such as
1. dog sniff on porch of D's home
2. GPS device attached to D's vehicle
3. long-term tracking of vehicle w/ GPS device would also violate D's REP
4. satellite-based tracking device worn on D's body
(constitutionally protected areas =
body, home, curtilage of home, vehicle)
86
4TH AMENDMENT CHALLENGE ELEMENTS
physical intrusion - wiretapping
[search + seizure]
wiretapping/eavesdropping requires warrant
UNLESS
a. ONE party to conversation CONSENTS to gov monitoring OR
b. conversations are conducted in RECKLESS fashion so that they are OVERHEARD by other
87
VALID SEARCH WARRANTS
4 elements
[search + seizure]
1. Probable cause
2. Precision
3. Magistrate
4. Properly and promptly executed
88
VALID SEARCH WARRANTS
probable cause - requirement
[search + seizure]
Probable cause is required for the issuance of a search warrant
probable cause is measured by the TOTALITY OF THE CIRCUMSTANCES
For probable cause to exist, there must be a SUFFICIENT LIKELIHOOD that CONTRABAND/EVIDENCE of a crime will be in the place to be searched
89
VALID SEARCH WARRANTS
probable cause - what can be used to support probable cause on a warrant?
[search + seizure]
HEARSAY may be used
may be based IN PART on an ANONYMOUS informer’s TIP and/or D’s CRIM RECORD/REP
90
VALID SEARCH WARRANTS
probable cause - affidavit supporting warrant
[search + seizure]
AFFIDAVIT supporting warrant must state FACTS, not conclusions
an assertion in the affidavit may be contested ONLY if affiant (aka police officer) KNOWINGLY or RECKLESSLY included MATERIAL FALSE statement
91
VALID SEARCH WARRANTS
particularity - requirement
[search + seizure]
Warrant must be precise on its face
must state w/ particularity the PLACE to be SEARCHED and THINGS to be SEIZED
EXAMPLE = if a search is conducted in an apartment building, the warrant must specify the unit to be searched
92
VALID SEARCH WARRANTS
particularity - purpose of this requirement
[search + seizure]
designed to prevent officers from using generally worded warrants to engage in broad-based fishing expeditions
93
VALID SEARCH WARRANTS
magistrate - requirement
[search + seizure]
Warrant must be ISSUED by NEUTRAL and DETACHED judicial officer (including court clerks for minor offenses)
94
VALID SEARCH WARRANTS
magistrate - 4 key examples of not neutral persons
[search + seizure]
1. state attorney general
2. US Attorney General
3. person paid only when a warrant is issued
4. a person who accompanies police on the search
95
VALID SEARCH WARRANTS
properly + promptly executed - requirement
[search + seizure]
When police have a valid search warrant, they may DETAIN persons found WITHIN or IMMEDIATELY OUTSIDE the premises while they execute the warrant
BUT may NOT SEARCH such persons UNLESS there is PROBABLE CAUSE to ARREST them
96
VALID SEARCH WARRANTS
good faith defense - defective warrant
[search + seizure]
If warrant is defective, search is illegal UNLESS executing officer’s reliance on defective warrant was
OBJECTIVELY REASONABLE and
made in GOOD FAITH
97
VALID SEARCH WARRANTS
good faith defense - 6 times that GFD does NOT apply
[search + seizure]
1. when the issuing magistrate was MISLED by info in AFFIDAVIT that the AFFIANT KNEW/REASONABLY SHOULD’VE KNOWN was false
2. when the issuing MAGISTRATE WHOLLY ABANDONED her judicial role
3. when the warrant AFFIDAVIT is SO LACKING in PROBABLE CAUSE as to render official belief in its existence UNREASONABLE
4. when the WARRANT is so FACIALLY DEFICIENT in failing to PARTICULARIZE the place to be searched or the things to be seized that executing officers cannot reasonably presume it to be valid
5. Officers executing the warrant KNEW/SHOULD’VE KNOWN that AFFIANT was DELIBERATELY/RECKLESSLY LYING
6. …there was NO WARRANT
98
WARRANT EXCEPTIONS
8 warrant exceptions
[search + seizure]
If there was a Fourth Amendment search and the police did not have a search warrant, the search is illegal unless one of the following exceptions apply
1. Search Incident to a Lawful Arrest
2. Automobile Exception
3. Plain View
4. Consent
5. Stop and Frisk
6. Exigency
7. Routine Administrative Search
8. Community Caretaker
99
SEARCH INCIDENT TO LAWFUL ARREST
scope
[warrant exceptions // search + seizure]
If a person is lawfully arrested, the police may search the person and the area in his IMMEDIATE CONTROL (ex = a broad WINGSPAN)
police may also make a PROTECTIVE SWEEP of any area beyond the accused’s wingspan IF they believe ACCOMPLICES may be present
BUT can’t w/o warrant search digital information on a cell phone seized from an individual who has been arrested
NOTE = if person is allowed to move, wingspan FLOATS w/ the person
100
SEARCH INCIDENT TO LAWFUL ARREST
scope of wingspan in a car
[warrant exceptions // search + seizure]
car wingspan includes
- ENTIRE PASSENGER COMPARTMENT (including a locked glove box) and
- EVERY ITEM in passenger compartment
BUT does NOT include the TRUNK
search of PASSENGER COMPARTMENT of car may take place EVEN IF person is OUTSIDE of car IF
1. person is NOT SECURED (not handcuffed) and w/in REACHING DISTANCE of passenger compartment
OR
2. police REASONABLY believe EVIDENCE OF OFFENSE FOR WHICH PERSON WAS ARRESTED may be found in vehicle
101
SEARCH INCIDENT TO LAWFUL ARREST
timing
[warrant exceptions // search + seizure]
To be valid, the search must be CONTEMPORANEOUS with the time and place of arrest
102
SEARCH INCIDENT TO LAWFUL ARREST
inventory search
[warrant exceptions // search + seizure]
may be conducted of
ARRESTEE at the police station OR IMPOUNDED VEHICLE
IF such search is conducted pursuant to an ESTABLISHED PROCEDURE
103
SEARCH INCIDENT TO LAWFUL ARREST
strip search
[warrant exceptions // search + seizure]
SUSPICIONLESS strip search of ARRESTEE is permitted before placing him in the general prison population
104
SEARCH INCIDENT TO LAWFUL ARREST
is a traffic citation an arrest for the purposes of this exception?
[warrant exceptions // search + seizure]
NOPE, ya dunce (also there is a real distinction between jones/katz, boom clip clop that was the sound of you falling off your high horse and it running away)
also FYI, Jena, you put "fake new" on this originally, so I think it's probably for the best if I can't speak to you or your son ever again
105
SEARCH INCIDENT TO LAWFUL ARREST
effect of unlawful arrest
[warrant exceptions // search + seizure]
If the arrest is unlawful, the search is unlawful and any evidence found would be Fruit of the Poisonous Tree
106
AUTOMOBILE SEARCH
exception
[warrant exceptions // search + seizure]
For this exception to apply, the police need PROBABLE CAUSE (aka the same probable cause needed for a warrant) to believe the car contains ILLEGAL ITEMS, CONTRABAND, or EVIDENCE of a crime
107
AUTOMOBILE SEARCH
probable cause
[warrant exceptions // search + seizure]
The probable cause to search for an item may arise after a car is legally stopped
(ex = a dog alerts the officer to the presence of drugs during a routine traffic stop)
BUT it must arise BEFORE anything or anyone is searched
108
AUTOMOBILE SEARCH
scope of automobile search with probable cause
[warrant exceptions // search + seizure]
If probable cause exists, the police may search the ENTIRE CAR (including the trunk) and ANY PACKAGE/CONTAINER that COULD REASONABLY CONTAIN illegal items, contraband, or evidence of a crime
The police may search ITEM (ex = luggage, backpacks, purses) in the car that are OWNED by the DRIVER or PASSENGER if the item MIGHT CONTAIN the OBJECT of the SEARCH
109
AUTOMOBILE SEARCH
search of passenger
[warrant exceptions // search + seizure]
Absent probable cause to search or arrest a passenger, the police may NOT search a passenger’s BODY or ITEMS WORN by the passenger ESPECIALLY if the passenger has LEFT the vehicle BEFORE the vehicle is stopped
110
AUTOMOBILE SEARCH
timing of search
[warrant exceptions // search + seizure]
Contemporaneousness is NOT required
| ex = the car may be impounded and searched
111
AUTOMOBILE SEARCH
limitation to automobile search exception
[warrant exceptions // search + seizure]
This exception applies to ALL VEHICLES (including RVs)
BUT does NOT apply if the vehicle is OBVIOUSLY INOPERATIVE (ex = a car on blocks)
The police may NOT enter a HOME or its CURTILAGE to access a vehicle under this exception (warrant required b/c heightened privacy interests attached to the home and its curtilage)
112
PLAIN VIEW
exception
[warrant exceptions // search + seizure]
Anything in the plain view (or smell) of a police officer LEGITIMATELY present where he or she does the viewing may be seized
The illegality of the evidence must be IMMEDIATELY APPARENT to the officer
(EX = if the officer must MANIPULATE an item to determine whether it is stolen = not plain view)
113
CONSENT
exception
[warrant exceptions // search + seizure]
A person may VOLUNTARILY and INTELLIGENTLY consent to a search
The person giving consent must have AUTHORITY (aka an interest in the property), but if the police reasonably believe the person has such authority, the search is valid
114
CONSENT
police conduct
[warrant exceptions // search + seizure]
If the police say they have a warrant, this negates consent
BUT the police do not have a duty to warn a person that he or she has the right to withhold consent
115
CONSENT
consent of co-occupants
[warrant exceptions // search + seizure]
Where two or more people have equal rights to use the property searched, one co-occupant usually may consent to a warrantless search and the evidence may be used against the other co-occupants
One co-occupant (ex = a parent) may generally consent to a search of another co-occupant’s (ex = an adult child) room, but not to areas completely under the control of the non-consenting co-occupant (ex = a locked closet or foot locker)
116
CONSENT
objection of co-occupant to search
[warrant exceptions // search + seizure]
one co-occupant’s consent is NOT sufficient if other co-occupant is PRESENT and OBJECTS to the search
police may conduct a search based on co-occupant’s consent, even though D had PREVIOUSLY OBJECTED to the search IF D is ABSENT @ THE TIME the co-occupant gives consent due to his VALID ARREST
117
CONSENT
landlords + hotel clerks
[warrant exceptions // search + seizure]
Landlords and hotel clerks generally lack authority to consent to the search of the room of a tenant or guest
118
CONSENT
revocation of consent
[warrant exceptions // search + seizure]
The person granting consent may revoke it
in such event, the search must stop
119
EXIGENCY
3 subparts to this exception
[warrant exceptions // search + seizure]
This exception to the warrant requirement has 3 distinct subparts
1. Evanescent evidence
2. Hot pursuit
3. Emergency aid
120
EXIGENCY > EVANESCENT EVIDENCE
exception
[warrant exceptions // search + seizure]
EXIGENT circumstances justifying a warrantless search exist when there is COMPELLING NEED for official action and NO TIME to secure a warrant
121
EXIGENCY > EVANESCENT EVIDENCE
what does exigency include?
[warrant exceptions // search + seizure]
Exigency includes scrapings under fingernails and other things that INHERENTLY DISSIPATE
122
EXIGENCY > EVANESCENT EVIDENCE
testing for alcohol
[warrant exceptions // search + seizure]
Police ordinarily MUST obtain a search warrant to administer a BLOOD alcohol test incident to a lawful DWI arrest
BUT generally NOT required to take a blood test of a driver suspected of drunk driving who is UNCONSCIOUS and therefore cannot be given a breath test
NO warrant is needed for a BREATH test
123
EXIGENCY > EVANESCENT EVIDENCE
penalties for failure to submit to alcohol testing
[warrant exceptions // search + seizure]
state may impose CIVIL penalties (ex = loss of a driver’s license) for failure to submit to a BLOOD alcohol test BUT may NOT impose CRIMINAL penalties
state may impose CRIMINAL or CIVIL penalties for failure to submit to a BREATH test
124
EXIGENCY > HOT PURSUIT
3 takeaways
[warrant exceptions // search + seizure]
1. For hot pursuit searches, police must be WITHIN A FEW MINUTES of the FELON
2. In a hot pursuit search, the police may ENTER and SEARCH ANY HOUSE/BUILDING when following a fleeing felon
3. once police ENTER a house or other building in hot pursuit, they may search ANYWHERE NECESSARY to respond to the exigency
125
EXIGENCY > EMERGENCY AID
exception
[warrant exceptions // search + seizure]
Police officers may enter a home without a warrant if they have an OBJECTIVELY REASONABLE basis for believing
- that an occupant has been/is about to be SERIOUSLY INJURED OR
- that an occupant is DESTROYING EVIDENCE
126
EXIGENCY > EMERGENCY AID
police-created exigency
[warrant exceptions // search + seizure]
This exception applies even if the police create the exigency
EXAMPLE = the occupants begin destroying evidence when the police knock and announce their presence
127
ROUTINE ADMINISTRATIVE SEARCHES
administrative warrant
[warrant exceptions // search + seizure]
Administrative searches and inspections for HEALTH, FIRE, and SAFETY purposes require a warrant
BUT the warrant will be issued upon a showing of a GENERAL and NEUTRAL ENFORCEMENT PLAN (instead of traditional probable cause standard)
EXCEPTION = probable-cause warrant required to search a fire-damaged residence by officials seeking to determine the origin of the fire
128
ROUTINE ADMINISTRATIVE SEARCHES
closely-Regulated Businesses
[warrant exceptions // search + seizure]
A warrant is NOT required for searches of highly regulated industries
BUT search must be part OF REGULAR INSPECTION PROGRAM and conducted according to STANDARD PROCEDURE
EXAMPLES =
- automobile junkyards
- businesses involved in liquor, guns, underground/strip mining
129
ROUTINE ADMINISTRATIVE SEARCHES
public School Searches
[warrant exceptions // search + seizure]
Public school officials may conduct a warrantless search of a student based on SCHOOL OFFICIAL’S REASONABLE SUSPICION that the search will turn up evidence of a violation of school rules or any law
BUT SC has held that strip search of 8th grader to find ibuprofen was unreasonable
130
ROUTINE ADMINISTRATIVE SEARCHES
drug testing in schools
[warrant exceptions // search + seizure]
Public schools may drug-test STUDENTS participating in EXTRACURRICULAR activities
131
ROUTINE ADMINISTRATIVE SEARCHES
drug testing of federal employees
[warrant exceptions // search + seizure]
Warrantless drug testing has been approved for RAILROAD EMPLOYEES INVOLVED in ACCIDENTS and U.S. CUSTOMS AGENTS
BUT not cool for PREGNANT women and CANDIDATES for elective office
132
COMMUNITY CARETAKER
what does this exception permit?
[warrant exceptions // search + seizure]
permits the police to take action in any situation where a REASONABLE officer would perceive the need to act for the PUBLIC GOOD OR in order to come to the AID of CITIZEN in PERIL
133
COMMUNITY CARETAKER
limitations to this exception
[warrant exceptions // search + seizure]
Although some jurisdictions broadly construe the community caretaker exception to include entry and search of homes, in a majority of jurisdictions the exception is limited to automobile searches (and probably only abandoned or wrecked automobiles)
134
STOP & FRISK
terry stop and frisk
[warrant exceptions // search + seizure]
- The police need only REASONABLE and ARTICULABLE suspicion (less than probable cause) of CRIMINAL ACTIVITY or a COMPLETED CRIME to BRIEFLY DETAIN a person
- If the police also have REASONABLE SUSPICION to believe that the suspect has a WEAPON, the police may FRISK (aka pat-down) the suspect
The police may reach DIRECTLY INTO suspect’s CLOTHING when they have INFO that WEAPON is HIDDEN there
If the officer develops PROBABLE CAUSE during the Terry stop, the officer may ARREST the suspect and make a full search incident to arrest
135
STOP & FRISK
what 4 things can give rise to reasonable suspicion?
[warrant exceptions // search + seizure]
1. the officer’s PERSONAL KNOWLEDGE
2. a police BULLETIN
3. an informer’s TIP IF tip is accompanied by an INDICIA of RELIABILITY, such as info predicting future behavior of suspect
4. a suspect’s FLIGHT and the level of CRIME IN THE AREA may, in part, create reasonable suspicion
136
STOP & FRISK
disclosure of identity
[warrant exceptions // search + seizure]
If the Terry stop is valid, the suspect is required to disclose his or her identity upon request
137
STOP & FRISK
length of stop
[warrant exceptions // search + seizure]
a Terry stop must be brief (aka a few minutes)
if a suspect is required to come to the police station, this is a custodial arrest (which requires probable cause), not a Terry stop
138
STOP & FRISK
admissibility of evidence
[warrant exceptions // search + seizure]
if the officer believes that it is a weapon or contraband based on the officer’s PLAIN FEEL W/ NO MANIPULATION, the weapons and contraband found = admissible
139
STOP & FRISK
vehicle frisk - 3 takeaways
[warrant exceptions // search + seizure]
1. the police may ORDER the DRIVER and PASSENGERS OUT of a vehicle during a ROUTINE, LAWFUL traffic stop
2. If officer has REASONABLE and ARTICULABLE belief that occupants of a vehicle are DANGEROUS, the officer may ORDER the occupants OUT of the vehicle and may FRISK the OCCUPANTS and the PASSENGER COMPARTMENT (including a locked or unlocked glove box) of the vehicle for WEAPONS in the course of a LAWFUL traffic stop
3. The vehicle frisk must take place during the TEMPORARY DURATION of the INVESTIGATORY stop
140
STOP & FRISK
roadblocks
[warrant exceptions // search + seizure]
Police may also use roadblocks to stop vehicles if the police have a NEUTRAL, ARTICULABLE STANDARD for stopping each car AND the PURPOSE of the stop is CLOSELY RELATED to AUTOMOBILES
EXAMPLES
- checkpoints and roadblocks near the border to search for undocumented aliens = upheld
- roadblocks to search for illegal drugs = do not satisfy this test
