• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/118

Click to flip

118 Cards in this Set

  • Front
  • Back
What is prohibited by the 4th Amendment?
The 4A prohibits a state actor from engaging in unreasonable search or seizure
Describe the circumstances in which a search or seizure is reasonable.
A search or seizure is reasonable only if authorized by a valid warrant or a warrant exception and executed in a reasonable manner.
Define "search"
A search is an invasion of a reasonable expectation of privacy.
What are the subjective and objective elements of a reasonable expectation of privacy?
Subjective expectation; objectively reasonable.
When is there no reasonable expectation of privacy?
When exposed to public or when transferred to a third party who turns over to police.
Is there a reasonable expectation of privacy in trash bags in a fenced backyard (curtilage)?
YES
Is a drug dog sniff an invasion of a reasonable expectation of privacy?
NO
What constitutes a seizure of a thing?
Meaningful interference with a possessory interest.
What constitutes a seizure of a person?
Exercise of authority which restrains freedom of movement, under which a reasonable person would not feel free to leave.
Who may challenge a search or seizure?
Only a person who was searched or seized.
When may a guest challenge a search of a guest area in a home?
An overnight guest may challenge a search of a guest area, but an afternoon guest probably could not.
What are the requirements for a warrant?
1. Probable cause
2. Particularity
3. Oath or affirmation
4. Detached and neutral magistrate
List 9 warrant exceptions.
1. Plain view
2. Consent
3. Exigent circumstances
4. Automobile
5. Public arrests
6. Search incident to arrest
7. Inventory
8. Terry
9. Special needs
Describe what is meant by stackability of a warrant.
May stack warrant and warrant exceptions on top of each other to expand authority.
Describe the test for probable cause.
Fair probability, reasonable grounds, or reasonably trustworthy information sufficient for a prudent person to conclude:
--A crime has been committed or is being committed by person to be seized, or
--Evidence of criminality in place to be searched
May hearsay and anonymous tips support PC?
YES--hearsay and anonymous tips may support (though not necessarily establish) probable cause.
What is the test for particularity in a warrant?
Sufficiently definite for police to identify persons, places, or items to be searched or seized with reasonable certainty.
Are names and addresses necessary in a warrant?
NO--Names and addresses are sufficient, but not necessary
Where must particularity be found?
Particularity must be on the face of the warrant or through incorporated affidavit.
What is the test for an oath or affirmation in a warrant?
Police must give information supporting warrant under oath.
Describe the requirement of a detached and neutral magistrate for a warrant.
The magistrate must have no stake in the outcome and must be more than a rubber stamp.
Must a neutral magistrate be a judge or a lawyer?
NO--magistrate need not be a judge or a lawyer.
Describe the test for when the "plain view" warrant exception applies.
Police may search or seize an item they see in plain view if they are authorized to be there and there is PC the item is connected with criminality.
Describe the plain feel warrant exception.
Police may search or seize an item they fel during an authorized search if feel gives rise to PC.
When is first-party consent valid?
When it is voluntary under the totality of the circumstances, taking into account the police actions and the suspect's background.
What is the effect of ignorance of right to refuse consent to search or seizure?
Ignorance of right to refuse is not fatal.
When is third-party consent valid?
When it is voluntary, plus
--actual authority to consent based on joint access and control, or
--reasonable belief in apparent authority to consent
What is the effect of an objecting co-occupant of a home on the police power to search the home?
Police may not search home over present objection of co-occupant.
What is the test for when exigent circumstances provide a warrant exception?
When there is reasonable basis for police to believe delay in obtaining warrant would result in
--evidence destruction
--danger to police or public, or
--flight of suspect

BUT still need probable cause to believe criminality
When is a court less likely to find exigency?
The lesser the crime and the greater the intrusion, the less likely the court will find exigency.
When may police conduct a search of an automobile?
When there is PC that any area of the car to be searched (including containers) contains evidence of criminality.
What is the public arrest warrant exception?
No warrant is required for an arrest in public.
What is the difference in requirements for public arrest for a felony and public arrest for a misdemeanor?
Felonies: In public and PC

Misdemeanors: Public, PC, committed in presence of officer
What is required to arrest a suspect in his home? In the home of another?
Arrestee's home: Arrest warrant

Third-party home: Search warrant and arrest warrant
A valid arrest allows contemporaneous search of _________________, ___________________, and _________________.
suspect
one-lunge area
container therein for weapons or evidence
An officer may not search a car incident to arrest unless....
Reasonable belief that arrested occupant or recent occupant may access the car (e.g. not secured in squad car), OR

Reasonable belief car contains evidence of the crime of arrest (e.g. not speeding)
Describe the rule concerning search of a home incident to arrest.
During the time it takes to complete an arrest, police may conduct protective sweep (cursonry visual inspection) for confederates --in adjoining rooms-->automatically, and
--in non-adjoining rooms-->if reasonable suspicion of danger
Describe a valid inventory search.
Within scope of reasonable and routine procedures to protect valuables, police, and public, may inventory contents of
--possessions at booking after lawful arrest, and
--automobiles after lawful impoundment
What is required for a Terry stop?
Reasonable suspicion that suspect is engaged in unlawful activity
What is allowed by a Terry stop?
Brief detention to confirm or dispel suspicion
Reasonable suspicion for a Terry stop must be based on...
...specific and articulable facts
What is required for a Terry frisk?
A lawful Terry stop plus reasonable suspicion that suspect is armed and dangerous.
What is allowed in a Terry frisk?
A patdown of outer clothing and one lunge area for weapons.
During a Terry frisk, may a police officer frisk for evidence (e.g. drugs)?
NO--only for weapons
If an officer encounters an ambiguous object during a Terry frisk, what may the officer do?
Officer may manipulate the object to determine whether it is a weapon. May reach in and seize object if frisk confirms suspicion of weapon or gives rise to PC of contraband.
Describe the special needs warrant exception.
Balancing test: if primary purpose is not related to criminal investigation, may search or seized if gov't interest outweighs privacy intrusion
What are common purposes for a special needs warrant exception?
Public health and safety
What are signs that a special needs exception program is reasonable?
The more random, regulated, or dispersed the program, the more likely to be reasonable.
Describe the knock-and-announce rule and its exceptions.
Before search or seizure, must knock and announce presence and purpose before entering premises (under warrant or exception) UNLESS reasonable grounds to believe
--dangerous
--futile, or
--evidence destruction
What is the test for reasonableness during a search or seizure?
May take reasonable measures to secure premises during authorized search or seizure, including
--temporarily detaining at scene,
--ordering occupants out of car
Describe the exclusionary rule.
Evidence obtained as a result of unconstitutional conduct is inadmissible against the individual whose rights were violated as the fruit of the poisonous tree.
List four procedural exceptions to the exclusionary rule.
1. Impeachment purposes
2. Grand jury proceedings
3. Parole revocation hearings
4. Civil proceedings
List four doctrinal exceptions to the exclusionary rule.
1. Knock and announce violation
2. Reasonably good reliance on facially valid warrant (e.g. later found lacking PC)
3. Clerical errors by court EEs in maintaining records
4. Isolated negligence by police in maintaining records (still exclude if other MR higher than negligence)
5. NOT fruit of poisonous tree
--obtained independently
--would have been inevitably discovered
Describe the attenuation exception to the exclusionary rule.
Evidence may survive exclusion by attenuation in the form of intervening cause, free will, time, or events.
Confessions obtained by a state actor may be suppressed if obtained in violation of __________, ___________, or ___________.
due process clause
6th Amendment right to counsel
5th Amendment Miranda doctrine
What is the test for a due process violation in connection with a confession?
Involuntary because will was overborne by state coercion.
What triggers the 6th Amendment right to counsel?
Formal charges--indictment, not arrest
Describe the 6th Amendment right to counsel.
6A provides right to counsel after the initiation of adversarial proceedings. the state cannot undermine this right by deliberate elicitation of a confession in the absence of counsel.
Describe the offense-specific aspect of the right to counsel.
The protection extends only to offenses charged, not to uncharged unrelated criminal activity.
What is the test for a violation of the 6th Amendment right to counsel?
Deliberate elicitation of a confession without counsel.
How can the 6A right to counsel be waived?
By knowing, intelligent, and voluntary waiver. Miranda waiver of counsel suffices to waive 6A right to counsel.
What is required by the Miranda decision?
Provide, BEFORE custodial interrogation, a right to counsel and silence and provide Miranda warnings.
What is the trigger for Miranda rights?
Custody:
--arrest or functional equivalent restriction on freedom, or
--coercive police-dominated environment, even if doesn't rise to level of DP violation
What constitutes an interrogation?
Express questioning, or conduct police knew would be reasonably likely to elicit an incriminating response.
Is it necessary to Mirandize everyone in custody?
NO--only those interrogated
Miranda warning must apprise suspects of...
1. Right to remain silent
2. Any statement can be used against you
3. Right to counsel before and during questioning
4. If you can't afford a lawyer, one will be provided for you
What is required for a suspect to invoke right to silence or counsel?
Must invoke unequivocally and expressly.
What happens if a suspect invokes Miranda rights to silence or counsel?
Interrogation must cease immediately.
Under what circumstances may interrogation resume after invocation of right to silence?
May resume questioning about a *different* crime if
--scrupulously honored original invocation
--significant period of time (e.g. 2 hrs) has passed, and
--new warnings and valid waiver
Under what circumstances may interrogation resume after invocation of right to counsel?
May resume questioning about *any* crime if either
--suspect initiates communication, or
--two weeks have elapsed from custody (including release into general prison population)
--new warning and valid waiver (in every case)
What constitutes a valid waiver of 5A right to counsel or silence?
Must be knowing, voluntary, and intelligent.
When is a waiver knowing and intelligent?
Basic understanding of nature of rights and consequences of abandonment from warnings (lawyerly grasp not required)
When is a waiver voluntary?
When not coerced by police.
What form may a waiver take?
Waiver may be express or implied (from course of conduct).
List three exceptions to the 'fruit of the poisonous tree'
1. independent source
2. inevitable discovery
3. attenuation
List 5 Miranda exceptions.
--public safety exception
--impeachment on cross-examination
--physical evidence obtained in violation of Miranda
--witness identification/testimony
--subsequent confession, if proper warning, valid waiver, and prior confession was not coerced
Pretrial identification procedures are governed by ____________________ and ______________________
Due process clause
6A right to counsel (after formal charging)

Miranda does not apply
What 6A rights does the suspect have in the pretrial identification context?
Suspect has right to counsel at live pretrial ID procedures (line ups and show ups, NOT photo arrays)
What due process rights does a suspect have in the pretrial identification context?
Reliability of procedure--procedure cannot be so unnecessarily suggestive that there is a substantial likelihood of misidentification
If suspect's 6A or DP rights have been violated in a pretrial identification, how may a W still identify the suspect in court?
If prosecution can show that ID is product of crime scene observation rather than improper ID procedure, considering opportunity to view suspect at crime scene, specificity of W description to police, and certainty of ID.
What is the function of a grand jury?
To issue an indictment upon probable cause.
The 5th Amendment requires grand jury indictment for _______________.
federal felonies (5A not incorporated against states)
Who presents evidence in grand jury proceedings, and what kind of evidence is allowed?
Prosecution presents evidence, including hearsay.
What right to counsel does W have in a grand jury context?
No right to counsel, even for likely targets.
What is the standard for pretrial detention, and how is it satisfied?
Probable cause, satisfied by grand jury indictment, arrest warrant, or preliminary hearing.
What are the requirements of a preliminary hearing?
Must be held promptly after arrest for magistrate to determine probable cause in absence of grand jury indictment or arrest warrant. Within 48 hours is fine; may be ex parte (without D or counsel).
Describe an initial appearance.
Required promptly after arrest (may be combined with preliminary hearing). Magistrate informs of charges, advises of rights, appoints counsel if necessary, sets bail.
What are the limitations on bail determinations?
8th Amendment prohibits excessive bail; bail determinations are immediately appealable.
What is the Brady rule?
Due process requires prosecution to turn over all material exculpatory evidence.
Due process guarantees a judge with no ________________, ________________, or __________________.
financial stake
actual bias
serious risk of actual bias
Describe the 6th Amendment right to confrontation and its effect on pretrial statements of adverse witnesses.
Such statements are excluded if they are testimonial if W is unavailable and D had no prior opportunity to cross-examine.
When is a witness's pretrial statement testimonial?
When it may reasonably be expected to be used at trial--e.g. police interview, lab report. NOT 911 call
What is an exception to the 6A right to confrontation?
When a face-to-face confrontation would contravene important public policy (e.g. child abuse victim traumatized)
When does the 6A right to jury trial attach?
When the maximum possible sentence exceeds 6 months.
Describe the requirements of the composition of a jury.
The jury pool must represent a fair cross-section of the community, though the jury need not.
What types of peremptory challenges (i.e. removal from jury pool without cause) are forbidden?
Challenges based on race or gender.
What proportion of a jury must vote together for a verdict?
6-person jury must be unanimous; 12-person jury must vote 9-3
How is the 6A right to counsel affected by sentence?
6A right to counsel at trial if D is actually sentenced to prison.
How might assistance of counsel be ineffective?
If counsel provides deficient performance under objective standard of reasonableness, such that there is prejudice, i.e. reasonable probability of different outcome.
Describe a plea-taking colloquy.
To accept a guilty plea, the judge must in a hearing on the record address
--nature of charge
--maximum authorized sentence and any statutory minimum
--right to plead not guilty and to trial
--defendant waiving right to trial
A withdrawal of a guilty plea is prohibited unless...
--defective plea-taking colloquy
--jurisdictional defect (e.g. wrong court)
--ineffective assistance of counsel
--prosecutor fails to fulfill his side of plea bargain
8th Amendment prohibits cruel and unusual punishment in light of _______________.
evolving standards of decency
What is the test for cruel or unusual punishment?
Grossly disproportionate to seriousness of offense.
What would constitute defective process, such that the death penalty would be unconstitutional?
--automatic imposition
--non-homicide crime against person
--without consideration of all potentially mitigating evidence
What types of offenders are ineligible for the death penalty?
--mentally retarded
--juveniles (under 18 at time of offense)
--insane at time of execution
Describe the 5A prohibition on double jeopardy.
5A prohibits person being put twice in jeopardy of life or limb for the same offense by the same sovereign.
When does jeopardy attach in a jury trial?
When the jury is sworn.
When does jeopardy attach in a bench trial?
When first witness is sworn.
When does jeopardy attach with a guilty plea?
When judge accepts the plea unconditionally.
When does jeopardy attach in civil proceedings?
Jeopardy does not attach in civil proceedings.
What is the test for the same offense?
Not same offense if each has an element the other does not.

ABC
BCD
When are retrials permitted?
--Hung jury
--mistrial due to manifest necessity
--retrial after successful appeal
--breach of plea bargain by D
When is a retrial never permitted?
No retrial when there is insufficient evidence.
What type of testimony does the 5th Amendment prohibit?
Compelled testimony in a criminal case.
Is the prosecution allowed to comment on invocation of 5A privileges?
NO
Who may invoke the 5A privilege against testifying?
Anyone may invoke the privilege in a custodial interrogation and any proceeding with testimony under oath.
When is the 5A privilege against testifying not applicable?
--physical evidence
--prior un-compelled testimony (e.g. diary, contract)
Describe three situations in which the 5A privilege against testifying is eliminated.
--Use & derivative use immunity- prosecution may compel testimony, but may not use testimony or anything derived from it to convict

--Defendant testimony: waives privilege as to anything properly in scope of cross-examination

--Statute of limitations: privilege unavailable once statute of limitations has run on underlying crime