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97 Cards in this Set

  • Front
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$ Exclusionary Rule
"Exclusionary rule commands that illegally obtained evidence be excluded as well as evidence obtained from the exploitation of evidence"

remedy to deter unlawful police conduct
-prohibits the introduction of evidence obtained in violation of a ∆'s 4th, 5th, and 6th amendment rights and FOPT
$ Exclusionary Rule--exceptions
1. inapplicable to GRAND JURY proceedings jury., civil proceedings, defective search waarant or clerical error

2. Good faith reliance on law, defective search warrant, or clerical error

3. evidence obtained in violation of 4th, 5th and 6th amendment can be used for impeachment

4. confessions obtained without MIRANDA warnings--unless coerced or immunized--can be used to IMPEACH

5. 5. W's IN COURT identification of ∆ may not be excluded as a fruit of an unlawful detntion where V's knowledge of the ∆'s identity was acquired prior to the illegal arrest.

6. 4th amendment claims are not re-litigated in federal habeas corpus hearings.
$ Good faith reliance
does not apply when police act in good faith based on: 1. case law 2. facially valid statute or ordinance 3. computer report containing clerical errors not made by police

UNLESS 1. the underlying affidavit was so lacking in PC it could not be relied upon
2. warrant was defective on its face
3. affiant mislead the magistrate 4. magistrate "wholly abandoned his judicial role"
$ FOPT
evidence obtained from exploitation of the illegally obtained evidence
$ FOPT--exceptions
$ 1. evidence obtained from an INDEPENDENT SOURCE of the original illegality
2. INTERVENING ACT OF FREE WILL--i.e. confession
$ 3. INEVITABLE DISCOVERY--police would have discovered anyway
4. violations of knock and announce rule
$ Exclusionary rule-4th amendment
unlawful arrest, search or seizure may not be admitted substantively
Grand Jury--procedural considerations
-info: written accusation of charges
-5th am. may be asserted
-no right to confront witnesses, crss-examine, present evidence, no right to counsel, miranda, right to be present
$ Harmless Error Test
If illegal evidence is admitted, a resulting conviction should be overturned on APPEAL unless govt can show beyond a resonable doubt that the error was HARMLESS.
habeas proceeding--∆ should be released if can show SUBSTANTIAL AND INJURIOUS EFFECT or INFLUENCE in determining jury;s verdict. If judge is in grave doubt wrt the harm, should petition should be granted.

--The "harmless error" rule is only applicable where the accused makes a TIMELY OBJECTION to the evidence which was allegedly unconstitutional.

Otherwise, the objection is WAIVED. (∆ might still contend, however, that he received ineffective representation.)
Exclusionary rule--enforcement
∆ entitled to have matter decided as matter of LAW

GOVT bears the burden of establishing admissability by a preponderance of the evidence
-∆ has right to testify at a suppression hearing without his testimony being admitted against him at trial on issue of guilt.
4th amendment
rght of th people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures shall not be violated
AND
no warrants shall issue but upon probable cause supported by oath or afirmation and particularly describing the place to be searched and the persons or thing to be searched.
Seizure--TOC
when a reasonable person would believe that he is not free to leave or terminate an encounter with the govt.
--factual determination--TOC
Arrest
occurs when the police take a person into custody against their will for the purpose of criminal prosecution or interrogation
-more than a mere suspicion of guilt
-more than a stop and frisk is required.
Arrest PC req.--TOC
Arrest must be based on probable cause--trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect committed or is committing a crime.
Arrest warrant requirement-exceptions
-generally not req. before arresting a person IN A PUBLIC PLACE**
-generally must have a warrant to effect a nonemergency arrest in a person's home

3 exceptions:
1.arrested in home
2. arrested in another person's home(need a warrant to search the home of the other person specifically for the suspect
3. police making arrest for a misdemeanor ACTUALLY OBSERVED by officer***
Arrest warrant for a felony observed by a PO or other person
no warrant required
felony NOT observed
PO does not need a W if PO has a reasonable belief that suspect committed the crime
-if not observed by private citizen then PCit acts at his own risk--liable for false imprisonment if felony was not in fact committed by the detainee
Stop and Frisk--need RAS TOC
if PO has REASONABLE SUSPICION of criminal activity or involvement in a crime based on ARTICULABLE FACTS (not a mere hunch) they may detain a person for investigative purposes.

can also frisk detainee for weapons if PO has a REASONABLE sUspicioN that the detainee is armed and dangerous.
Stop and Frisk--duration/scope
must be no longer than necessary to conduct limited investigation to verify suspicion. can ask for name, and may arrest for failure to comply. can arrest if PC for an arrest arises out of detention
Automobile stops
may stop an auto if PO has at least a reasonable suspicion that a law has been violated.
Auto stops--roadblocks
to be valid must: 1. stop cars on the basis of a neutral, articulable standard; AND 2. must serve purposes closely related to a particular problem pertaining to automobiles and their mobility
--PO may order occupants out of vehicle and may frisk if reasonable belief that detainees are armed. may also seach passenger compartment for weapons (even after occupants have been ordered out)
Detention for purposes of obtaining a W
if PO has PC to believe that suspect has hidden drugs in home, then may prevent suspect from entering home until warrant is obtained.
Occupants of premises
if P have a warrant ot search for contraband, then police may search occupants of premises during a proper search.
Deadly force
PO may not use deadly force unless PO has probably cause to believe that suspect poses a significant threat of death or serious bodily harm.
Evidentiary search and seizures
must be reasonable under 4th amendment except in six circumstances
STATE ACTION
4th am. protects only against govt conduct no searches by private persons
$ REP
in order to have a right under the 4th am. person must have a REP wrt to the place searched or items seized. determination based on the totality of the circumstances

a person ALWAYS has a REP when:
1. he owned or has a right to possession of the place searched
2. place searched was his HOME, whether or not he is the owner or had right to possession of it
3. OVERNIGHT GUEST of the owner of place searched
$ REP--things held out to be public
-sound of one-s voice
-handwriting
-paint on one's vehicle
-bank records
-beepers on the outside of vehicle (REP for inside i.e. need a W)
-areas outside the curtilage
-garbage left for collection
land visible from a public place to the naked eye, even from a helicopter
-sniff tests
-pen registers--device that records the phone numbers dialed
$ REP wrt to students
-personal items: administrators acting independently where there is a reasonable, articulabel suspicion that contraband will be found (less than PC)
-lockers--> same as personal items as long as there is notice to the student that the locker is not the exclusive personal property of the the student.
-drug testing-->public policy to curb drug use, protect from harms of drug use outweighed by privacy rights
$ REP--Sniff Tests
detention must be brief by the least instrusive means available at the time
$ Requirements for a Search Warrant
1. issued by NEUTRAL and DETACHED judicial official

2. Based on PC (i.e. under TOC, it is more probable than not that indicia of criminal activity will be found at the area to be searched)

3. identify the place to be searched and the items to be seized.

4. be limited in duration
PC for a W use of informants
PC based on sufficiency of informants tip must be based on totality of the circumstances TOC
sufficiency factors:
1. Is the informant reliable?
-look to previous info, crt testimony, history
2. Is the information credible?
-not stale, specific

THEN view together based on TOC
-do not need a lot of both b.c must be viewed together using a balancing-type approach

THEN look to police info for corroboration
Going behind face of affidavit
W issued based on affidavit held invalid if all 3 factors met:
affiant 1. intentionally or recklessly included a 2. false statement that 3. was material to the finding of PC.
-police may REASONABLE RELY on the validity of the warrant
Warrant must be precise on its face
W must describe with reasonable precision the place to be searched and items to be seized. If it does not, then unconstitutional even if underlying affidavit gives such detail.
Magistrate must be
neutral and detached i.e. state AG cannot issue a warrant.
Execution of a warrant
only police, not private citizens, may execute a warrant
2. must be executed without reasonable delay
3. knock and announce rule
Execution of a warrant--knock and announce rule
police must knock, announce their purpose and wait a reasonable time for admittance UNLESS PO has reasonable suspicion based on facts that announcing would be dangerous or futile or would inhibit the investigation.
violation WILL NOT result in suppression of evidence otherwise properly obtained
$ Exception to warrant requirement
1. SILA
2. Auto exception
3. Plain View
4. Consent
5. Hot pursuit,
6. exigent circumstances
$ W exception--SILA
incident to a lawful arrest, PO may search a person and areas into which he might reach to obtain weapons or destroy evidence
-police may also make a protective sweep (TOC) of the area if they believe accomplices may be present.
-cursory, contemporaneous search based on articulable facts.
-inventory searches allowed, also can search impounded vehicle
$ W exception--Auto exception *****
If PC justifies stop of a vehicle, it justifies search of entire vehicle INCLUDING CONTAINERS therein
$ Auto exception--containers placed in vehicle
if police have PC to search only a container in a vehicle (luggage recently placed in a trunk) they may search only the container, not other parts. UNLESS ∆ had time to move the container within the vehicle after placing the container in the auto.
$ W except.--Plain View
police may make warrantless seizure when:
1. they are legitimately on the premises
2. discover evidence, fruits or instrumentalitites of the crime or contraband
3. they see such evidence in plain view
AND
4. have IMMEDIATELY APPARENT PC to believe that the item is evidence, contraband or a fruit or instrumentality of crime.
-sounds, smells, sees

--police cant search ares not covered by the warrant
$ W except.--Consent--TOC
warrantless search is valid if police have a voluntary (consider age, mental competency, police demeanor) and intelligent consent.

-knowledge of right to withold consent not requried to establish voluntary and intelligent consent.
-scope of search limited by the scope of consent

-if police tell you they have a warrant when they really don't, entry is PER SE NONCONSENSUAL.
$ Consent--authority
any person with an [reasonably] apparent equal right to use or occupy the property may consent to a search and any evidence found may be used against other owners/occupants. but a co-occupant may not give valid consent to a search when a co-occupant is present and objects to the search if the search is directed against the co-occupant.
$ consent-common authority rule
consenting P could consent to the search
∆ assumed the risk the co-occupant might permit the search.
$ W exceptions--Stop and Frisk
brief detention for the purpose of asking a few questions. more than a polite inquiry but less than a custodial arrest . therefore miranda rights not required

An officer may stop a person without PC if he has a reasonable and articulable suspicion of criminal activity. Can ask detainee to state his name and if he believes person is armed and PRESENTLY dangerous, may conduct a protective frisk.
Stop and Frisk-frisk/admisibiility
justified only if PO reasonable thinks that suspect has a weapon
-if PO had to manipulate, squeeze to determine if contraband, then not alowed "plain feel" rule

***frisk for weapons also allows officer to search for contraband if he IMMEDIATELY recognizes it as such.
$ Stop and Frisk--scope
generally limited to a patdown of outer clothing unless PO has specific information that a weapon is hidden in a particular area of suspect;s clothing.
$ W exception--Hot pursuit, evanescent evidence and similar emergencies
police 1. in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling
2. police may seize without a warrant evidence likely to disappear before a warrant is obtained
3. contaminated food or drugs, persons injured or threatened with injury, and burning fires justify warrantless searches and seizures.
other exceptions
-seizing spoiled or contaminated food
-administrative searches of a business within a highly regulated industry
-inventory searches of arrestees
-airline passengers
-probationers and their homes
-governtment employees desks and file cabinets where scope is reasonable and there is awork-related need or suspicion of work-related misconduct
-drug tests of railroad employees involved in an accident
-drug tests of customs employment in positions connected to drug interdiction
Confesions--voluntariness
for a self-incriminating statement to be admissible under due process clause of 5th/14th amendment it must be VOLUNATRY (freely, knowingly, voluntarily made) as determined by TOC standard
Voluntariness--TOC test
1. Nature of the ∆--age, mental condition, education, drug/alcohol use
2. Nature of the Police Conduct
-low level trickery ok i.e. offers of leniency, "your co-conspirator ratted you out", but NOT "charges will be dropped"

the lower the ∆'s ability to resist coercion/lower ∆'s understanding, the more likely to find coercion
Voluntariness--application of harmless error test
if there is overwhelming evidence of guilt, an involuntary confession need not be overturned.
-if no harmless error, may not be used for collateral purposes, i.e. impeachment
Attacking confessions
1. voluntariness
2. miranda
3. right to counsel
4. FOPT
Miranda warnings
1. right to remain silent
2. anything said can be used against him
3. right to an attorney(prior to questioning and during the interrogation)
4. if you cannot afford one, will be provided for you
minor variations/interruption/failure to read
admissibile
-if interrupted by statements by suspect, PO may stop reading without error
-Failure to reed warning subject to harmless error doctrine
When miranda does not apply
-not a govt agent
-on the scene questioning "what happened"
-only applies to interrogation designed to gather testimonial evidence
-questions asked during routine booking (if ∆ slurs speech, then can be used as circumstantial evidence that ∆ is intoxicated)
-testimony given to IRS
-grand jury testimony
-questioning in a jail cell by an undercover govt informant whether or not paid
Miranda when required/rationale
during a custodial interrogation
--must have custody and interrogation
-miranda was meant to protect against interrogation in an inherently coercive police dominated environment
-coercion determined from perspective of the suspect(i.e. not designed to protect a ∆'s bragging to a false friend who may be an undercover agent)
Miranda--Custody
-detainee's BELIEF is the KEY to determination of whether or not someone is in "custody"

-factual determination: determined by reasonable expectation of suspect, not PO
e.g. interrogation in home-->not in custody; meeting a parol officer--not in custody
-NOT FREE TO LEAVE
-more than a terry search or during the issuance of a traffic citation
Miranda--interrogation
"Interrogation defined as any words or actions by the police that the police should know are likely to produce incriminating testimony"

1. directly through police questioning
2. indirectly through behavior police should know is reasonably likely to elicit an incriminating response
-fine line between being subject to an interrogation and volunteering a statement.
-applies to exculpatory and inculpatory statements
$ Miranda--Waiver
must be knowingly and voluntarily, intelligently based on TOC
-police need not first inform ∆ of a key fact to make a valid waiver i.e. victim has since died.

-even after MIRANDA rights have been INVOKED, the invocation can be waived if suspect:

1. suspect initiates subsequent dscussions
2. adequate MIRANDA warnings are reiterated
AND
3. no intervening interrogation occurred.
Miranda--when interrogation must cease
1. ∆ requests atty: Interrogation must cease until attorney is present
2. ∆ exercises right to remain silent:
exceptions: (1) ∆ changes his mind and volunteers but police must wait a signifcant time (usually 2 hours)--TOC

(2) Second Session Interrogation
-significant time period requirement
-must be 1. a different officer investigating
2. unrelated crime
3. new set of warnings must be given
4. ∆ must elect to talk
-very limited factual situation
Miranda warnings--break/questioning by other agency
no new warning must be given.
use of involuntary statements
-can be used for impeachment
Public Safety exception
interrogation without warnings allowed when it was reasonably prompted by a concern for public safety.
Right to counsel
Where imprisonment is imposed, ∆ has a right to counsel.

-MBE if ∆ is only fined, then no denial of right to counsel.



-protects against deliberate solicitation from ∆ without assistance of counsel once formal charges have been filed
Right to counsel--when formal charges have been filed i.e. when triggered
-formal judicial proceeding:
1. Indictment
2. filing of an information by prosecutor
3. grand jury filing charges
-not merely an arrest
right to counsel--waiver
∆ may waive counsel KNOWINGLY and INTELLIGENTLY in the opinion of the court

-waiver applicable at one stage in proceedings is not necessarily applicable in other stages.

--PRO SE ∆ need not have the expertise of an atty.

------
right of the client only
-requires an ACTUAL WAIVER:
-->intentional relinquishment of a known right
FOPT--for purposes of confessions/miranda waivers
-based on 4th amendment exclusionary principal
-->An otherwise voluntary statement or confession made after a valid miranda waiver may be inadmissible if it is the product of an unlawful arrest, search or seizure (i.e. 4th amendment violation)
-confession may be admitted if the taint is purged...usually very difficult to accomplish
FOPT--miranda waivers 3 examples
1. 4th amendment violation>voluntary confession-->tainted FOPT
2. 5th amendment violation>voluntary confession--> is admissable under teh Elstad doctrine
3. Suspect placed into custody w/out PC> voluntary confession apply Brown v. Illinois test
FOPT--brown v. illinois
Use 3 part test to determine if taint is purged.
1. Time--crt considers time between unlawful arrest and confession
-closer the proximity less likely that taint has been purged by intervening act of free will.

2. Intervening Circumstances: did the ∆ reflect, deliberate, talk to friends, family, god, etc. then taint may be dissipated

3. Flagrancy of the unlawful arrest i.e. circumstances surrounding the arrest
- a mere technical violation or deliberate?
-more flagrant the arrest, the less likely taint was purged.
Burdens of Proof
State must prove Guilt beyond a reasonable doubt

Insanity--Clear and convincing evidence. One case ahs said reasonable doubt.
Admissibility of Confessions implicating a co-∆
usually inadmissible except:

1. all portions of the statement referring to the ∆ can be eliminated (so that there is no indication of that ∆'s involvement)

2. confessing ∆ takes the stand and subjects himself to cross

OR

3. confession of non-testifying codefendant is being used to rebut the ∆'s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission
Arresting a ∆ in his home
Generally, police need a warrant to arrest someone in his home.
UNLESS
1. suspect consents

2. police, in hot pursuit, follow ∆ into home to PREVENT ESCAPE but must have PC aka emergency situation

-Generally cannot execute a warrant for a named individual in the home of another person.
$ Exigent Circumstances
Warrant not required where it is likely that:
1. unless police act immediately, evidence might be lost or destroyed
OR
2. someone might be harmed,

-can't shock the conscience i.e. pump ∆'s stomach
Wiretapping
permissible only after a warrant has been issued AND
1. PC that a crime has been or is being committed
2. W must name suspect and describe partiular conversation to be overheard
3. must be valid ONLY FOR A BRIEF TIME after which it will be terminated and the recorded conversations returned before a court.

--all wiretapping violates REP
Reliability standards for indentifications
an ID that is suggestive and unnecessary can still be admissible if it is reliable based on TOC considering:

-opporuntity to view criminal at the scene
-W's degree of attention
-accuracy of the W's descriptions
-degree of certainty of the W
AND
-time interval between the crime and identiication

**these factors are then balanced against the degree of suggestiveness
Preliminary Hearing
adversarial proceeding used to determine PC to prosecute

-essentially a mini-trial with W's testifying and being cross-examined

**different from a grand jury proceeding where ∆ has fewer rights.

- ∆ has a right to counsel
Indictment
An indictment is a written accusation of charges against the defendant which a grand jury reviews to determine if the prosecution's evidence justifies a trial.

Upon indictment, the prosecutor decides whether or not to prosecute.

--The right to indictment by grand jury for capital and infamous crimes is not binding upon the states

--Special grand juries can bring an indictment to commence a crimi- nal proceeding.

--where required, an indictment must be properly returned before a prosecutor can bring a case.

If the indictment is defective, ∆'s motion to dismiss a case against him will be granted.
Grand Jury Hearings--characteristics
here are 8 key characteristics of grand jury proceedings:

1) Proceedings are conducted IN SECRET, and the ∆ has no right to be present.

2) ∆ may not present or confront witnesses or introduce evidence.

3) A grand jury witness has no right to counsel (except for consultation outside the grand jury room).

4) Miranda warnings are not required, but a witness is still subject to penalty of perjury.

5) A grand jury indictment may be based on illegally seized or hearsay evidence.

6) In federal court, the accused can waive a grand jury hearing except in capital offenses.

7) An accused may not challenge a grand jury for lack of PC

8) However, if the jury pool was selected in a racially discriminatory manner, reversal of a subsequent conviction is the proper course.

--basically, you're fucked.
5th Am. priv against self-incrimination
∆ cant be compelled to testify against himself.

-∆ must submit to:
1. handwriting samples
2. blood tests
or
3. requests to repeat specific words

-applies to ANY TYPE of proceeding
BUT
where a CUSTODIAL INTERROGATION is about to occur an individual does not have to be advised o his right to take the 5th

-includes right of ∆ to refuse to take the stand in a criminal trial AND judge, prosecutor is not allowed to make any ADVERSE COMMENT

-when requested, jury must be informed that no adverse inference may be drawn from ∆'s refusal to take the stand.

-*∆'s refusal to cooperate with investigation of criminal conspiracy of which he was a member may properly be considered in imposing sentencing
Right to Counsel--what proceedings?
Applies to CRIITICAL stages
-custodial interrogation
-post-indictment lineups
-preliminary hearings
-arraignment
-felony trials
-misdemeanor trials where imprisonment is actually imposed
-sentencing hearings
-where ∆ has right to appeal as a MOL

DOES NOT APPLY to NONCRITICAL STAGES:

i.e., during preliminary identification procedures, during police lineups prior to indictment, during non- adversarial detention hearings, during
grand jury proceedings, for discretionary appeals, for probation and parole revocation, or during habeus corpus proceedings.
Strickland Test re claim of ineffective counsel
1) Counsel was ineffective (i.e., Court considers 2 factors:

1) counsel deviated from reasonably prevailing norms);

AND

2) there is a reasonable probability that, with effective counsel, the verdict would have been "not guilty."
6th Am. right to jury trial
attaches in any criminal proceeding where the defendant faces a SENTENCE of possibly MORE THAN SIX MONTHS

-applies to crim contempt but not civil contempt

-must actually be MORE THAN 6 months
6th Am. right to confront witnesses
applies to both the federal govern- ment and the states.

∆ may forfeit or waive the right to be present at his trial by behaving badly in the courtroom or by failing to appear.

--if 2 or more persons are tried TOGETHER
AND
an earlier confession by one implicates another, the former's state-ment may not be introduced in a JOINT trial if the ∆ who made the statement refuses to testify (even though the jury is advised to disregard the statement vis-a-vis the non-confessing party).
Co-Defendants confessions
In a JOINT TRIAL where a co-defendant's confession IMPLICATES the other ∆,
the right to confrontation PROHIBITS the use of such a confession and the ∆s are entitled to SEPARATE trials.

UNLESS

1) PORTIONS of the confession can be DELETED
.
2) Where the co-defendant takes the stand after making a confession and is SUBJECT to CROSS

3) HARMLESS ERROR
Right to Compulsory Process
provides a ∆ with:
1 power to PRESENT his OWN witnesses,
AND
2. with a FAIR OPPORTUNITY to present a defense free from intimidation or prejudicial exclusion of material evidence.

-applies to states
8th Am provision against cruel and unusual punishment
precludes punishment which is

(1) "inherently cruel and unusual,"
OR
(2) grossly disproportionate to the crime.

--It is cruel and unusual treatment to punish an individual for a mere
"status" (i.e., being a heroin addict or a chronic drunkard).
Thus X, a heroin addict, cannot be prosecuted for being under the influence of an illegal drug.
BUT
∆ may be convicted of
(1) possession of an illegal substance,
OR
(2) being under the influence of the drug in a PUBLIC PLACE.

In these situations, X has undertaken some
form of action in addition to showing the effects of consumption of the product.
Capital punishment procedures
1) Bifurcated trial (one jury decides guilt, another sentences);

2) Aggravating factors (prosecution must present evidence that aggravating factors were present);

3) Mitigating factors (the court must review mitigating factors before imposing the death penalty);

4) Verdict on lesser-included offense permitted (jury must be able to return a verdict of guilty to a lesser included offense).
Writ of Habeas Corpus
petition by a ∆ to attack the lawfulness of his DETENTION.

∆ must prove an UNLAWFUL DETENTION by a PREPONDERANCE of the EVIDENCE.

To bring a writ, the petitioner must be IN CUSTODY

--For a state prisoner to bring a writ in federal court, he must show that his detention violated his federal constitutional rights.

He must have exhausted all state remedies AND
have followed all state
procedural rules at trial.

Where he had a full and fair opportunity to raise a 4th Amend- ment claim in state court, he may not seek a writ in federal court on this basis..
Special Rights afforded prisoners
1. Where state law provides for a right to parole, a prisoner who is denied parole must be granted:
OPPORTUNITY to be heard
AND
NOTICE of the reasons for DENIAL.

2) Prisoners must have reasonable access to the courts and to legal counsel, as well as to the press.

3) Prisoners have a right to MEDICAL CARE

.
Double Jeopardy-when it attaches
NON JURY TRIAL, j
when the 1st W is SWORN
AND
the court begins to hear the evidence.

JURY TRIAL:
when the jury is IMPANELED
AND
SWORN
Double Jeopardy--separate sovereigns
The double jeopardy prohibition DOES NOT prevent dual prosecution by SEPARATE SOVEREIGNS.

i.e.∆ may be prosecuted for the same criminal conduct by a federal court and then by a state court (or vice versa), or by two separate state courts.

-municipality is NOT a separate sovereign
i.e. local conviction would bar state prosecution for same offense
When may the prosecution retry a defendant even after jeopardy has attached?
1) ∆ successfully appeals a conviction based on the fact that an error was made at tria

2) MISTRIAL has been granted on defendant's motion, retrial is permitted.
United States v. Dinitz, 424 U.S. 600 (1976). Furthermore, where a mistrial was declared because of "manifest necessity," retrial is permitted.
DJeop--when 2 crimes do not constitute same offense --BLOCKBURGER TEST
-2 crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require even though some of he facts may be necessary to prove both crimes.
Hypo 1:
-crime 1=prove A, B, C
-crime 2= prove A, B, X
-OK under blockburger

Hypo 2:
-crime 1 ABCD
-crime 2 ABC
-not OK
Double Jeopardy wrt doctrine of collateral estoppel.
Double Jeopardy encompasses the doctrine of collateral estoppel.

Thus, one may not be tried for a crime where a prior prosecution by that sovereign was unsuccessful as the result of a factual determination which would inevitably arise in the subsequent trial

--One cannot be tried for a greater offense where she has been acquitted of a lesser included crime, unless facts were NOT PRESENT at the time of the first trial such that the ∆ could be prosecuted for the greater offense.

Since at least one of the elements of the latter offense must have been resolved in favor of the accused, collateral estoppel bars retrial.
Harmless Error Doctrine--Retrial required
Retrial is required where:
(1) an involuntary confession is, for any reason (i.e., even impeachment), introduced into evidence,
OR
(2) the accused was improperly denied counsel at trial (failure to provide counsel at the non-trial stages of a proceeding is subject to the "harmless error" rule).
Aerial Surveillance
1.over one’s HOME--4th am. protection therefore HIGHEST expectation of privacy--right to be free from unreasonable search and seizure

2.Business/Factory-->Dow Chemical
⁃advanced photographic equipment or special lenses are OK if available to public?
i.e. no violation of 4th amendment
3.Open Field--NO 4th amendment protection
-any 1. unoccupied or undeveloped area 2. outside the curtilege of one’s home.