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Criminal Procedure - Fall 2022 (Rosenthal) > Key Cases & Doctrines > Flashcards

Key Cases & Doctrines Flashcards

(43 cards)

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1
Q

Predication Standard

Probable Cause Factors

A

1. Fair Probability (Gates)
a. Reasonable Person Standard
b. More Likely than Not Standard (Pringle)

2. Totality of Circumstances (Brinegar)
a. No Conclusory Statements (Nathanson)
b. Reliable Sources (Spinelli)
c. Verification of Information (Draper)

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2
Q

Predication Standard

Reasonable Suspicion

A
  1. Specific and Articulable Facts
  2. Need to Disarm Suspect or Preserve Evidence
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3
Q

Predication Standard

Exigent Circumstances

A
  1. Hot Pursuit
  2. Emergency Aid
  3. Preservation of Evidence
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4
Q

Predication Standard

Voluntariness Test

and Coercive & NonCoercive Factors

A
  1. Not Coerced (explicit or implicit)
  2. Totality of Circumstances
  3. Burden of Proof: Defendant
  4. Scope: Objective Reasonableness

Coercive Factors
- Exploiting Illegal Arrest
- Deception - False Claim of Warrant

NonCoercive Factors
- Threat of Lawful Incarceration
- Ready Discovery of Evidence
- Deception - Unknown Identity of Police

NonDispositive Factors
- Mental/Emotional Condiction
- Deception - False Claim of Ability to Obtain Warrant
- Deception - Unknown Intentions of Police

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5
Q

Predication Standard

Diminished Expectations of Privacy

A
  1. School Children
  2. Prisoners
  3. Probationers
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6
Q

Coverage

Search
REOP

A

The Fourth Amendment protects people, not places

Protects against the intrusion on a person’s privacy interests. Katz v. United States (1967)

A person has a reasonable expectation of privacy where they:

  1. Exhibit an actual, subjective expectation of privacy, and
  2. Society recognizes that as a reasonable expectation
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7
Q

Coverage

Search
Warrant Exceptions

A
  1. Search Incident to Lawful Arrest
  2. Automobile Exception
  3. Plain View/Things Held Out to the Public
  4. Consent
  5. Terry Stops/Investigative Detention
  6. Exigent Circumstances
  7. Administrative/Regulatory Inspections
  8. Inventory Searches
  9. Undercover Investigations
  10. Personal Characteristics (Exemplars, Fingerprinting, etc.)
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8
Q

Coverage

Search:
Protected Interests

A
  1. Persons
  2. Residential Dwellings
    a. Curtilage
    b. Use of Technology not in Common Use
  3. CSLI
  4. Personal Effects
  5. Network Surveillance - Content
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9
Q

Search Warrant
Requirements

A
  1. Probable Cause
  2. Neutral & Detatched Magistrate
  3. Particularity - Place & Things
  4. Oath or Affirmation
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10
Q

Search Warrant Execution
Requirements

A
  1. Reasonable Time
  2. Knock & Announce (unless Exceptions)
  3. Persons on Premises (may or may not be detained/searched)
  4. Proportionate Intensity & Duration
  5. Presence of Third Parties (must be proper)
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11
Q

Reasonable Use of Force
Factors

A
  1. Severity of crime
  2. Immediate Threat to safety
  3. Suspect Resisting or Evading Arrest
  4. **Not Subjective - **Officer’s Split-Second Judgments **
  5. Objective - Totality of Circumstances
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12
Q

Arrest
Requirements

A
  1. Warrant (unless exception)
  2. Use of Reasonable Force
  3. If Warrantless –> Prompt Judicial Review
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13
Q

Scope

Immediate Control/Grabbable Area

A

Reasonable for Officer to search and/or seize to:
1. Disarm Suspect
2. Preserve Evidence (Chimel)

Before suspect is arrested/handcuffed (Gant)

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14
Q

Scope

Protective Sweep

A

Officer may look beyond the immediate control/grabbable area IF

Reasonable Suspicion : May search other parts of the premises

Without Reasonable Suspicion: Areas from whIch an attack could be immediately launched, including closets and other spaces outside the immediate area of arrest

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15
Q

Automobile Exception
Requiring Probable Cause

A
  1. Entire Vehicle Search
  2. Closed Containers in Vehicle
  3. Motor Homes
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16
Q

Automobile Exception
Requiring Reasonable Suspicion

A
  1. Search Incident to Lawful Arrest (Immediate Control/Grabbable Area)
  2. Passenger’s Belongings
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17
Q

Coverage

“Free to Leave” Standard
Factors

A
  1. Threatening presence of Several Officers
  2. Display of Weapons by officers
  3. Physical Touching by officers
  4. Use of compelling language or tone
  5. Blocking Exists
  6. Length of Time
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18
Q

Predication

Terry Stop
Reasonable Particularized Suspicion

Study These Flashcards
A
  1. Totality of Circumstances (Objective & Subjective observations, crime levels of area)
  2. Particularized Suspicion (conduct, personal characteristics, reliable informants)
19
Q

Search
Requiring Reduced/Altered Probable Cause

Study These Flashcards
A
  1. Business Premises
  2. Border Searches
  3. Students
  4. Drug Testing Certain Employees
  5. Probationers/Parolees
20
Q

Entrapment

Study These Flashcards
A

1. Inducement
Opportunity + something else
.
2. Lack of Predisposition (Subjective v. Objective)
Subjective (Fact) - government actual caused + defendant’s predisposition
Objective (Law) - government conduct goes too far + reasonable person predisposition
.
3. Due Process Considerations (Shock the Conscience)
.
.
Other Types of Entrapment
1. No Private Entrapment
2. Vicarous Entrapment (entrappee entraps a third party)
3. Derivative Entrapment (agent induces entrappee to entrap third party)

21
Q

Fifth Amendment Process

Study These Flashcards
A
  1. Government Questions?
  2. Custody + Interrogation?
  3. Warnings?
  4. Invocation of Rights?
  5. Waiver?
    .
    .
    Other Considerations
    Testimonial?
    Public Safety Exception?
    Shock the Conscience/Due Process?
    False Confessions?
22
Q

Prophylactic Rules

Study These Flashcards
A
  1. Miranda
  2. Exclusionary Rule
  3. Sixth Amendment - No Subsequent Police-Initiated Contact
23
Q

Fifth Amendment

Custody
(and Exceptions)

Study These Flashcards
A
  1. Formal Arrest
  2. Voluntary Interrogee Informed of Suspect Status
  3. Held at Gunpoint by Police
    .
    .
    Exceptions
  4. Voluntary Stationhouse Questioning
  5. “Free to Leave” Standard
  6. Traffic Stops
  7. Custody Short of Formal Arrest
  8. Probation Interviews
  9. Voluntary Interoggee Unaware of Suspect Status
24
Q

Fifth Amendment

Interrogation
(and Exceptions)

Study These Flashcards
A
  1. Express Questioning
  2. Functional Equivalent
    a. Words or Actions
    b. Knew or should have known
    c. Reasonably Likely to elicity incriminating response
    .

Exceptions
1. Direct Questioning Exceptions
a. DUI Arrest - Asking for BAC
b. Routine Booking Questions (Not for Investigative Purposes)
c. Direct Questions that Do Not Call for an Incriminating Response (Hiibel)
2. Recordings of Third Parties While in Custody
3. Undercover Police Questioning

25
# Fifth Amendment Invocation Right to Remain Silent | and Acceptable Reinitiation
1. Express Invocation (not silence) (*Berghuis*) 2. Knowing & Voluntary (Totality of Circumstances) 3. Scrupulously Honored? If **Scrupulously Honored**, police may reinitate questioning when: 1. Immediately stopped questioning upon invocation 2. Stopped for several hours 3. Re*Mirandized* suspect 4. About a **different** crime (*Michigan v. Mosely*)
26
# Fifth Amendment Invocation: Right to Counsel | and Acceptable & Unacceptable Reinitation
1. Express Invocation a. No Clarifying Questions b. No Anticipatory Invocation 2. All Questioning Must Cease 3. Acceptable Reinitiation a. Initiates Further Communication b. Break in Custody (14 days) c. Public Safety Exception 4. Unacceptable Reinitiation a. Lapse in Time b. Not Crime-Specific c. Continues after Charges Files d. Continues after Consulting with Attorney
27
# Fifth Amendment Waiver
**1. Knowing & Intelligent** ' NOT REQUIRED: a. aware of all possible subjects of questioning (*Spring*) b. aware of full consequences (*Barrett*) c. inform suspect attorney trying to reach them (*Moran v. Burbine*) ' . **2. Voluntary** Consider: **overborne will** and/or **techniques used** . **_ALLOWED_:** (1) General **Trickery/Deceit **(*Frazier v. Cupp*) (2) Psychological Ploys --> **Suspect's balancing of competing interest** (3) Threat of conviction as a result of a **fair trial** ' **_NOT_ _ALLOWED_** (1) Threat of conviction as a result of an **unfair trial** (2) Credible Threats of Physical Violence (*Payne*) (3) Instilling Fear of Violence absent government protection (*Fulminante*) (4) Exploiting/Prolonging Pain . **3. Express or Implied** (Totality of Circumstances) **4. Burden of Proof: Government - Preponderance of the Evidence**
28
Sixth Amendment Process
1. Charges 2. Deliberate Elicitation 3. Offense-Specific Scope 4. *Miranda* Warnings, Invocation, & Waiver
29
# Sixth Amendment Deliberate Elicitation
1. AFTER Charges + Invocation 2. Intentional questioning/creating situations (not passive listening) 3. With intent to induce confession
30
# Sixth Amendment Invocation & Effective Waiver
**Invocation:** requires an affirmative act to **request** counsel, not merely have counsel appointed . . **Waiver:** Knowing & Intelligent waiver of *Miranda* rights is sufficient . ***Rationale:*** defense counsel's role is limited anyways ***NOTE:*** After invocation it can only be waived by defendant-initiated contact, NOT police
31
Identification Procedures Process
**1. Unnecessarily Suggestive** .......... NO --> Admissible YES --> . **2. Reliable** ..........YES --> Admissible NO --> . **3. Independent Source** .......... YES --> Admissible NO --> NOT Admissible
32
# Identification Procedures Unnecessarily Suggestive
Buden of Proof: Defendant Considers ONLY the **procedure used**
33
# Identification Procedures Reliability
Burden of Proof: Defendant . ***Biggers*** **Factors** 1. **Opportunity** to view at time of crime 2. Witness' **Degree of Attention** 3. **Accuracy** of **prior description** 4. **Level of Certainty** of witness 5. **Time** between crime and identification . **Other Variables to Consider** 1. Character of Witness 2. Characteristics of Perpetrator 3. Circumstances of the event 4. Composition of Lineup
34
# Identification Procedures Independent Source
Burden of Proof: Government Application of the **fruits doctrine** for an **incourt identification** AFTER a **prior lineup/identification** . **Factors to Consider** 1. *Biggers* Factors 2. Prior misidentifications/failure to identify 3. Whether the witness otherwise knew the suspect
35
Grand Jury Purpose/Rationale
1. Investigate 2. Charge
36
# Grand Jury Advantages
1. Broad Subpoena Powers 2. Secrecy Requirement 3. Psychological Pressure 4. Immunity Grants 5. Witness has no right to a. Counsel b. Miranda Warnings c. Warning that they are a potential defendant d. Exculpatory evidence e. Challenge subpoena for lack of probable cause
37
# Grand Jury Subpoenas Overbroad Prohibition/Unreasonable Doctrine
Presumed Reasonable (Burden of Proof: Witness) . Cannot be **burdensome** or **oppressive** 1. Compels production of **only relevant documents** (can be personal documents) 2. Is made with **Reasonable Particularity** (includes reasonable categories), based on a. **Ability to Identify** requested documents, and b. Any **Unreasonable Business Detriment** 3. Covers a **Reasonable Time Period**
38
# Grand Jury Subpoenas Constitutional Challenges
Unconstitutional Subject Matter --> Cannot Challenge First Amendment --> Cannot Challenge Fourth Amendment - Probable Cause --> Cannot Challenge/Not Applicable Fourth Amendment - Exclusionary Rule --> Cannot Challenge/Not Applicable Fifth Amendment - Self Incrimination --> **CAN CHALLENGE** Fifth Amendment - *Miranda* Rights at Proceeding --> Cannot Challenge/Not Applicable
39
# Grand Jury Fifth Amendment Violations Process
1. What is being compelled? a. Documents (Boyd) . 2. Is it testimonial or nontestimonial? 3. . 3. Is it incriminating? a. Act-of-Production Doctrine? . 4. Exceptions? a. Forgone Conclusion? b. Immunity Grant? c. Waiver
40
# Grand Jury Foregone Conclusion Standard
Does the government already know: 1. The subpoenaed party has **possession** of the documents? 2. The documents **exist**? 3. The documents are **authentic**?
41
Exclusionary Rule
Prohibits the introduction at a criminal trial of evidence obtained in violation of a **defendant's** Fourth, Fifth, or Sixth Amendment Rights The **primary purpose** of the rule is **prophylactic**: it deters the government from violating a person's constitutional rights The rule also serves a **remedial purpose** for the deprivation of constitutional rights
42
# Exclusionary Rule Attenuation Doctrine
Breaks the causal connection between the illegally gotten evidence and the evidence used at trial. . **Unlawful Arrest + Consent to Search** OR **Unlawful Arrest + Voluntary Confession** --> *Brown-Dunaway* Rule (no dispositive factor) 1. *Miranda* Warnings? 2. Temporal Proximity 3. Intervening Circumstances 4. Purpose & Flagrancy of official misconduct . **Discovery of Outstanding Warrant** (*Strieff*)
43
# Exclusionary Rule Inevitable Discovery
1. But-for causation is **necessary**, but **not sufficient** 2. Burden of Proof: Government - Preponderance of the Evidence 3. No Speculation 4. Applies to fruits/derivative evidence

Criminal Procedure - Fall 2022 (Rosenthal) (2 decks)

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