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Flashcards in KS: Crim Pro Deck (80)
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1

When you go to trial without raising defeats in the pleadings, you generally are held to have waived most defected--but when the information doe not charge a crime, there is an exception;

Presumption that charging documents is sufficient

2

Post-trial motion to arrest judgment

allows a D who is convicted to challenge the sufficiency of the information for up to 10 days after the verdict or conviction is entered.

3

On appeal, charging the document that was not challenged on appeal is viewed using a common-sense approach instead of technical approach--

the longer you wait to challenge a charging document, the stronger the presumption that it is sufficient

4

4th A-- Search and Seizure: Eight Steps to Determining search and seizure issues

1) is there government conduct?
2) did the search or seizure invade an individual's reasonable expectation of privacy?
3) was the search authorized by a facially valid warrant?
4) Does an officer's good faith save the defective search warrant?
5) Was the search warrant properly executed by the police?
6) Is the search valid under any of the eight exceptions to the warrant requirement?
7)Can the prosecutor use evidence gathered in an unconstitutional search and seizure against the D in court?
8) Is any of the evidence introduced by the prosecution fruit of the poisonous tree, and if so, is the evidence admissible?

5

4th A-S&S: Is there government conduct?

- publicly paid police, on or off duty
- private citizens: only if acting at direction of police
- privately paid police: only if deputized with power to arrest

6

4th A- S&S: did the S or S invade an individual's reasonable expectation of privacy?

- protected areas: persons, houses, papers, affects, homes, and curtilage of homes
- unprotected items: paint scrapings on outside of car, account records held by banks, anything that can be seen from airspace, garbage at curb for collection, voice, open fields, handwriting, odors from car or luggage
- person has NO expectation of privacy in DNA after it has been lawfully obtained by the police

7

4th A - S & S: challenging the search

to challenge the legality of the search, the person's individual privacy rights must be invaded, not those of a third party

8

owners of premises searched

always have standing

9

residents of the premises searched

always have standing

10

overnight guests of the premises searched

always have standing as to areas where guests would be expected to access

11

individuals using someone else's residence for business purposes only

never have standing

12

owners of the property seized

have standing if they have a reasonable expectation of privacy in the area from which it was seized

13

passengers in cars

only have reasonable expectation of privacy in the item searched or seized (eg. purse)

14

4th A - S & S: Was the search authorized by a facially valid warrant?

Facially valid warrant requires probably cause and particularity

15

Probable Cause

Fair probability that contraband or evidence of crime will be found in the area searched
- hearsay is admissible for this purpose
- police may rely on information obtained through an informant's tip even if the information is anonymous-- the sufficiency of the informant's tip rests on corroboration by the police of enough of the tipster's information to allow the magistrate to make a common sense practical determination that probable cause exists

16

Particularity

Warrant must specify the place to be searched and the items to be seized
- the particularized description is contained in an affidavit supporting the warrant, the affidavit must be incorporated explicitly into the warrant itself

17

Warrant that is invalid due to absence of PC or particularity can still be saved if

the officer relied on it in good faith

18

4th A - S & S: Does an officer's good faith save the defective search warrant?

An officer's good faith overcomes constitutional deficits in PC and particularity EXCEPT if:
- affidavit supporting the warrant is so egregiously lacking in PC that no reasonable officer would have relied on it
- warrant application is so egregiously lacking in particularity that no reasonable officer would have relied on it
- officer or DA lied or misled the magistrate who issued the warrant
- magistrate who issued the warrant was biased, meaning that he had wholly abandoned neutrality.

19

4th A - S & S: Was the search warrant properly executed by the police?

-- did the officer exceed the copy of warrant? Can be places searched and things searched for
-- did the police comply with the knock and announce rule? Police are required to knock to announce their presence and purpose before forcibly entering the place to be searched, unless doing so would be futile, dangerous, or would inhibit investigation
- warrant must be executed within 96 hours of its issuance--may be executed any time day or night and officers may use all reasonable force to execute it

20

4th A - S & S: is the search valid under any of the eight exceptions to the warrant requirement (escapist)?

1) Exigent circumstances
2) Search incident to arrest
3) consent
4) automobile
5) Plain view
6) inventory
7) special needs
8)Terry stop and frisk

21

Exigent circumstances: Evanescent evidence

Evidence that would dissipate or disappear in the time it would take to get a warrant

22

Exigent circumstances: hot pursuit

allows police to enter a suspect's home or that of a third party into which he fled to look for him if the police are in hot pursuit; any evidence of a crime discovered during hot pursuit in plain view is admissible.

23

Search Incident to arrest

arrest must be lawful; allowed to ensure officer safety and need to preserve evidence
- search must be contemporaneous in time and place with arrest
- can search wingspan of D-- includes passenger compartment of car, including closed containers, but not the trunk so long as D was a recent occupant of the car

24

Consent

must be voluntarily and intelligently given
- the fact that police do not tell someone that he has right to refuse does not make consent invalid

25

Apparent authority

if police obtain consent to search from someone who lacks authority to grant it, the consent is still valid under the 4th A if the officer reasonably believes that the consenting party had actual authority
- if premises are shared, any party has authority to consent to search of the premises
- if co-tenants with equal rights to premises, an objecting party will be able to prevent the search as to areas over which they share dominion and control if both parties are present

26

Automobile exception

Police need PC to believe that contraband or evidence of crime will be found in the automobile
- police can search passenger cabin and the trunk and may open any package, luggage or other container that may reasonably contain the items for which there was PC to search
- the smell of ether emanating from vehicle or a house does NOT justify a warrantless search

27

Plain view

Three req's
1) lawful access to place from which the item can be plainly seen
2) lawful access to item itself
3) criminality of item is immediately apparent

28

Inventory

happens when arrestee are booked into jail or when vehicles are impounded.
- searches are constitutional if: regulations governing them are reasonable in scope and the search itself complies with these regulations

29

Special Needs

- Random drug testing--allowed for railroad employees following accident, customs officials responsible for drug interdiction and public school children in extracurricular activities
- probationers' homes: warrantless searches are permitted where police have reasoned grounds to believe that contraband is present
- government employees' desks and files: warrantless searches are permitted to investigate work-related misconduct
- students' effects in public-- allowed to investigate violations of school rules
- border searches-- neither citizens nor non-citizens have 4th A rights at the border with respect to routine searches of persons and effects
- KS allows a police officer to conduct a public safety stop on a vehicle is specific and articulable facts support a safety inquiry

30

Terry Stop and Frisk:

Brief detention or seizure for purposes of investigating suspicious conduct, pat down of outer clothing for weapons or contraband is allowed
- requires specific and articulable facts that make an officer believe that criminal activity is present
- if an officer has reasonable grounds to believe that a drive is operating a vehicle under the influence of drugs or alcohol, he may administer a blood, breath, urine or other test, even if the driver is unconscious-- driver has no right to consult an attorney but driver must be warned that refusal to the the test can result in one year license suspension and that test may be used against the driver at trial -- driver must be advised that she may consult an attorney after the test and may secure an additional testing at her expense.