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26 Cards in this Set
- Front
- Back
- 3rd side (hint)
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4th amendment prohibits unreasonable searches and seizures
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a search or seizure is unconstitutional if not authorized by warrant
OR conducted under circumstances giving rise to an exception to the warrant requirement 4th is applicable to the states through the 14th amendment article 1 section 12 |
the 4th does not provide protection from:
1. by gov if “reasonable” 2. private whether reasonable or unreasonable 3. by gov of non-citizens on foreign soil 4. by gov of US citizens on foreign soil, though gov must show PC |
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Probable Cause
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to obtain a valid search or arrest warrant gov must have probable cause.he gov showing must be sufficiently particular as to the place or person to be searched or seized. This showing requires a reasonable ground for the belief which is something less than reasonable doubt, but more than mere suspicion (hunch).
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A detached, disinterested magistrate must find that, taking into account the experience and expertise of the officer, the government has demonstrated by oath or affirmation, probable cause. Which:
1. for arrest warrant – it is more probable than not that a crime has been committed and the person arrested committed that crime OR 2. for a search warrant, it is more probable than not that evidence of a crime or contraband PRESENTLY is located in a certain place. These showings may be based on hearsay. |
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Violation of the 4th Amendment
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If a government search or arrest is made w/o a warrant or pursuant to a defective warrant, the subject may be entitled to suppression of the illegally obtained evidence OR money damages
RULE – to assert the 4th the suspect must be able to demonstrate a reasonable expectation of privacy in the area searched or the thing to be seized. Absent this showing. D lacks standing. |
D must show a subjective expectation of privacy
Society must recognize it as objectively reasonable n NY D may be able to demonstrate a subjective REP in an open field if D abides by NY real property laws to establish that REP. RULE – no REP exists in abandoned property which may be seized w/o probable cause or warrant. D's abandonment however may not be the result of police misconduct. |
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EAVES dropping and wiretaps
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an REP exists in content of telephone conversations, emails, and faxes.
NY - 1 party consent for wiretap. Eavesdropping warrant applications requires a “particular' description of the nature and location of the communication facilities and a limited, definite time, duration. Not to exceed 30 days w/o application for extension. police must show that normal investigative procedures have failed or are likely to fail and OR are too dangerous to apply. |
If the police inadvertently hear unrelated incriminating conversation, while under a valid warrant, they must amend the warrant as soon as possible
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PAYTON violation
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PAYTON violation occurs if police arrest D in his home without
1 Consent 2 exigent circumstances 3 arrest warrant *to enter a 3rd party's home to arrest D, police must have a search warrant for the 3rd party home. |
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Knock rule
(Generally a NY search warrant should be executed between 6am and 9pm) |
Ordinarily police must first knock and announce their authority and purpose unless police had reason to believe that
1. evidence might be destroyed. Or 2. they will encounter violence After 15-20 seconds, police may be justified in knocking down a door. |
If the police violate the knock requirement, evidence found pursuant to warrant may not be suppressed. 1983 claim is remedy.
*can also get no-knock warrant |
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border
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routine warrantless may be made to persons and property.
a. must be at border or its functional equivalent. b. reasonable certainty that the border has been crossed. RULE – initially routine and suspicionless warrantless border searches of a person are limited to some form of inspection of a person and his luggage. Anything more intrusive than a frisk is non-routine and requires a “heightened, articulable level of suspicion” however, highly intrusive searches of a car or computer equipment may be made without individualized suspicion. |
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AUTOMOBILE SEARCHES
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1. probable cause that traffic violation occurred
2. reasonable suspicion of criminal activity. Pursuant to a valid stop, police as a protective measure may order driver or passengers to step out of or stay in a car. |
in NY police officers need “founded suspicion” of criminal behavior to ask drivers during a routine traffic stop about whether they have guns or drugs in the car.
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HOT PURSUIT
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a warrantless entry into a structure is permitted in the immediate pursuit of a suspect if there is probable cause to believe that the suspect may be dangerous to the safety of the public. It can also be used to prevent the destruction of evanescent evidence. Factors considered for hot pursuit are PAGE:
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P – clear probable cause
A – ARMED suspect G – GRAVITY of offense E – likelihood of ESCAPED or EVANESCENT EVIDENCE will be destroyed |
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PLAIN VIEW
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there is no REP for incriminating items left in plain view.
Police officer may use flashlight to view what would have been observable in daylight police may use dogs to sniff airport luggage, or a properly stopped vehicle for drugs. SCOTUS has said that dog sniff is not search under the constitution. RULE – in NY a dog sniff may be a search,but generally is not so intrusive as to require probable cause or a warrant. |
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Search indecent to arrest
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Search suspect and container (wingspan, grabable area) for weapons or evidence of which the suspect may gain control.
In NY the arrest must be lawful. MBE incident to illegal arrest made in good faith. |
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EMERGENCY SEARCH
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4th will not prevent police from aiding someone in danger if
1. police have an objective reasonable belief that there is an emergency to life of property. 2. reasonable connection between the emergency and the area searched RULE – MBE officers subjective reason for entering the premises is not relevant if an objective emergency exists IN NY may not be primarily motivated by intent to seize evidence. |
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There are 4 types of street encounter
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1. stop request info – requires articulable basis
2. stop inquire – founded suspicion 3. stop frisk – reasonable suspicion 4. arrest – probable caus |
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SUPPRESSION OF EVIDENCE
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when a person is harmed by government conduct that violates a constitutional right, the aggrieved person has several remedies
1. a constitutional tort claim against NY state in the court of claims for money damages for the torts of NY state employees. 2. a 1983 federal constitutional tort action against municipal or state employees and the municipality, not against the state. 3. a private constitutional tort claim against federal employees. 4. suppression |
a motion to suppress illegally seized evidence must be made after the arraignment, in NY within 45 days in a omnibus motion. A hearing will be held to determine what will survive and what will be suppressed.
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in the absence of a constitutional or jurisdictional defect, a guilty plea ends litigation and there is no appeal.
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Even when D has waived right to appeal can still appeal
1. right to speedy trial 2. legality of court imposed sentence 3. findings concerning D's competency 4. the denial of effective assistance of counsel 5. whether the appeal waiver was knowingly, intelligently and voluntarily made. |
RULE – MBE will not enforce as an express condition to the dismissal of a criminal charge, D's surrender of any civil claims. (NOT NY)
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5th Amendment Grand Jury
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IN NY the DA must present exculpatory information to the jurors.
a NY D cannot be convicted solely on the uncorroborated testimony of an accomplice. |
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Grand Jury IMMUNITY
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NY any witness subpoenaed to appear before the Grand Jury is automatically granted full transactional immunity and may not be prosecuted for any crime for which the witness testifies.
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DOUBLE JEOPARDY
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the DJ clause of 5th provides that no person shall for the same offense be twice put in jeopardy of life of limb.
RULE – DJ protects against 2 abuses 1. 2nd prosecution by the same sovereign for the same offense after an acquittal or conviction. 2. multiple punishment by same sovereign for the same offense. Eg – consecutive rather than concurrent sentences |
a criminal D, asserting DJ will commence an article 78 special proceeding against the judge. If it is a supreme court or county court judge, commence in appellate division.
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NY CPL limits the dual sovereignty doctrine by prohibiting a subsequent NY criminal action where a sister state or the federal government has already tried that D on that criminal transaction. Unless
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1. the completed crime was committed in NY and the earlier federal or sister state criminal prosecution involved only a related conspiracy, facilitation or solicitation
OR 2. the fed or sister state crime contained some element that is not an element in the NY crime and each statute was designed to prevent different kinds of evil or harm. |
NY (NOT MBE) requires that D be tried in 1 trial for ALL offenses arising out of 1 criminal transaction.
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5th Amendment RIGHT AGAINST SELF-INCRIMINATION (The 5th only protects evidence of a testimonial or communicative nature )
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unless granted immunity, every natural person has a 5th right against self-incrimination (not a corp.)
RULE – subpoenaed business records are NOT PROTECTED by the 5th. Thus an individual may not rely upon the privilege to avoid producing corporate records in his possession in a representative capacity. Even if those records might incriminate him personally. |
RULE – where D invokes 5th in a civil case or admin an inference may be drawn that D's response would not have been favorable to her position
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SPEEDY TRIAL
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the people have the right and power to initiate a criminal prosecution at any time within the SOL. But once initiated by D's arrest or indictment, the people must pursuant to the 6th advance it to a speedy trial unless there are reasonable grounds for its delay.
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RULE – in NY the criminal SOL are
NO SOL – class A felony 5 Years other felonies 2 years misdemeanors 1 year violations SOL is tolled, not more than 5 years for original for a – each day D is outside NY b – while the whereabouts of identity of D is continuously unknown and unascertainable by due diligence. |
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Once a timely arrest has been made, D must promptly be tried or a motion to dismiss for violating speedy trial may be made. the DA will pay the PRICE
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When deciding whether to grant D’s motion to dismiss for violating D’s right to a speedy
trial, the court will consider the PRICE D paid: P – PREJUDICE in the form of loss of witnesses R – REASON for the delay I – Whether D is INCARACERATED during delay C – Severity of the CHARGE E – EXTENT of the delay |
except for homicides, the NY CPL mandates dismissal of the indictment and release of the incarcerated D unless the people announce to the court their readiness for trial within
1. 6 months for a felony 2. 90 days for a class A misdemeanor 3. 60 days for a class B misdemeanors 4. 30 days for a violation. |
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6th Amendment right to JURY trials
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under the 6th a criminal D is entitled to demand a jury trial for a “serious” crime (more than 6mo jail)
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NY D has the choice to waive jury trial for serious crimes (not in MBE)
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6th Amendment right to FAIR TRIAL
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6th guarantees the right to a fair trial, but no a perfect one.
A new trial will be ordered if D demonstrates by Clear and convincing that a substantial right was prejudiced. Eg improper conduct by a juror may affect a substantial right |
Any admissible evidence materially favorable to the accused (exculpatory or impeachment material) in the prosecutors or police custody must be turned over to D counsel.
A Brady violation occurs only if the withheld material was admissible or would have led to admissible evidence. Eg a DA failure to exclude a polygraph favorable to D does not violate Brady where such evidence is not admissible. NY continues to follow the reasonable probability test. But if the NY DA fails to disclose Brady material that was specifically requested, reversal is required where there exists a reasonable possibility that non-disclosure contributed to the guilty verdict. |
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6th Amendment right to PUBLIC TRIAL
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6th guarantees a criminal D the right to a public trial including at preliminary hearings, jury selection, and the trial itself.
RULE – a criminal trial normally must be open to public, right is not absolute, thus court has discretion to close the courtroom for a “compelling reason” EG 1. prevent exposure of a sex crime victim 2. to protect safety or effectiveness of prosecution witnesses or undercover officers |
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CONFRONTATION
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6th provides criminal D the right to be present at any stage of trial where witnesses or evidence is being presented against them or where there are communications between judge and jury.
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