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290 Cards in this Set
- Front
- Back
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what does the 4th amendment protect.
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1. rights people secure in
2. persons 3. houses 4. papers 5. and effects against unreasonable searches and seizures. and shall not be violated and no warrants shall be issued, but upon probable cause. |
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what is a seizure
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Bostick= free to decline test grayhound bus
anytime the GOV> interferes with one rights to be left alone must be agent of GOV. |
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how many types of seizures are there
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2 types
1. minor = reasonable suspicion that a criminal activity is taken place. (less intrusive) reasonable brief ex= checking luggage 2. major = probable cause and reasonable and articulalble suspicion that a criminal activity is taken place. |
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if a car is stopped who is seized
and wat case does this come from |
everyone in the car is seized
Brendlin |
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what case proves that just because your cuffed doesnt mean your are seized
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Muehler
hand cuff was for officer safety look at the totality of the circumstances to see if it was a detention. |
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when is a terry stop justified
what case does the inference come from |
have specific and articulable facts leading to reasonable suspicion of a criminal activity.
reasonable suspicion Cortez--transporting immigrants |
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what is the ying and yang cases
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terry- officer watched 3 men walking in front of a store looking nervous and seized and frisked them= reasonable suspicion that criminal activity was to occur
Sibron was talking to known drug dealer cop asked him to step outside by use of authority not reasonable b/c there was no exchange of hands. |
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what is the test to see if police action is reasonable
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Gov. interest vs. degree of intrusion
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what are the limitations to the terry stop.
terry frisk |
must be brief
able to stop people long enough to confirm or dispel suspicion terry frisk cop = reasonable suspicion that suspect is armed and dangerous terry frisk for weapons only |
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what case had unprovoked flight
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IL v. Wardlow
if unprovoked flight * high crime area = Reasonable suspicion running by itself is not enough |
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sokolow
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drug courier profile can be used as a factor to form RS---but it alone is not enough.
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terry frisk minor
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brief pat down of outer clothing only.
need reasonable articulable suspicion that person involved in criminal activity reasonable and articulable suspicion that the suspect is armed and dangerous. |
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what can you do terry frisk on
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1. person
2. car 3 of home 4. public places all of the searches are limited to weapons ONLY |
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what is the 1st touch doctrine
under terry frisk CAN COP MANIPULATE IT |
if cops feel something he can go inside clothing and get it if he immediately identifies wat it is ( this will give him probable cause)
CANNOT MANIPULATE IT |
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LONG
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car search for weapons
cop can search everything within wing span glove compartment if it is not locked. anything within the containers of the car purses or watever. COP MUST HAVE REASONABLE ARTICULABLE SUSPICION THAT THE PERSON IS ARMED and dandgerous |
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Buie
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terry sweep of the home
looking for another person in the house who are armed and dangerous. must have reasonable articulable suspicion that another person might be in the house. can only look where a person might be hiding. anything in plain view can be seized and used as long as cop was legal there. |
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ybarra
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cop had a search warrant for the bar and bar tender not patrons
if search warrant for public place need individualize reasonable suspicion in a house can search everyone w/o individual suspicion. b/c know suspect enough to come to house might be involve in the same activity as him. |
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McArthur
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if searching the home and someone comes home cop must follow person everywhere
dont flee or distroy evid. |
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arrest
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probable cause that suspect was involved in the crime and person needs to be seized
pc * arrest warrant Pc * consent Pc * exigent circumstances |
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intrusive searches
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probable cause that the their will be evidence in a particular place which was used in a criminal activity.
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finger printing rule
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can be obtained w/o probable cause-it is not a search
but it is a seizure |
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dunaway
royer davis |
Dunaway-cop pck dude up and took him to interogation room and question him- cop said no arrest- crt said yes
royer-guy in airport told him to come into room and questioned him w/o probable cause= arrest davis- informant about young bck man committed crime round up 14 of them and fingered printed. crt said went to far. moral if taken into a room and miranda-finger printing or ect = arrest. |
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gates test
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anonymous informant
totality of circumstances 1. veracity-credibility was informant know? 2. reliability how reliable are they. 3. basis of knowledge if he was at the scene = more credible 4. predictive detail 5. corroboration= confirmation. |
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can anonymous tip alone ever be probable cause
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no
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FL v JL
White Upton |
FL v. JL dude plaid shirt at bus stop has drugs = too vague = defense
White = cocaine in the car here is the license plate and the hotel room gave cause to reasonable suspicion = PROSECUTION CASE. Upton = gf rated out bf = call was ok RS meet just cause caller has motive doesnt dismiss the call. |
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arrest outside need warrant
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felony = no if have probable articulable cause ( watson)
misdeanor= if cop see it dont need warrant--if not need warrant |
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arrests made inside
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need warrant and need probable articulable cause that suspect is involved in a criminal activity.
exception = exigent circumstances (Payton) |
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knock and annouce rule
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police must knock 1st
if no answer they can knock door down only if they suspect is inside. exception dont have to if exigent circumstances--distroy evid. or flee |
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what do u need to arrest someone in there own home
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1. arrest warrant
2. or exigent circumstances |
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what do u need for an arrest in their own home
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need PC
either 1. consent 2.arrest warrant 3. exig circumstance |
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what do u need to arrest someone in someoneelse's house
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PC and
either 1. arrest warrant (for suspect)and 2. Search warrant (for 3rd party's home) |
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what is the Steagald case
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Cop -went into 3rd party house w/o search warrant but had arrest warrant--found incriminating evidence in home.
arrest is valid but the search not ok. |
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what is the test for reasonable expectation of privacy used
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both
subjective = persons exhibits expectation of privacy objective= society recognizes that expectation is reasonable |
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what happens when the you have a reasonable expectation of privacy----what do the cops need
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katz test--phone booth with glass
cops need probable cause and warrant to arrest. |
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what is the open field exception
and what is the case--- what is the exception |
oliver--plating marijuana in an open field
4th amendment only applies to home and the curtilage(land immediately surrounding and associated with the home where you mow your lawn) exception= your front porch is the only place = reasonable expectation of privacy = protection = 4th amendment. |
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what is the air space rule
what is the case--- |
FL vs. Riley---helicopter flying over greenhouse and see marijuana from an open roof.
not a search 4th= no warrant if can see with naked eye. if public can see from legal airspace then= not search |
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what is reasonable expectation for trash---search?
what is the case |
CA vs Greenwood--guy puts garbage on the curb and cops found drugs= not a search
if out on the curb= No REP but if curtilage = search |
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what is the manipulation case and what is the law
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Bond- police came on the bus-greyhound and squeezed and probed luggage.= search
but luggage is not completely private b/c a reasonable person knows luggage will be poked and prodded. But person doesnt expect to be manipulated by cops. ==== very invasive. |
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is dog sniffing a search
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no--if they are in public places where a police can legally be.
if dog sniffs something and alerts cops = PC if cops show that dogs has a good track record of being right |
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seizing a traveler's luggage a seizure of the person.
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yes if it is for too long on RS alone= arrest= unlawful b/c no PC
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what was beeper case
'' '' photo mag '' '' thermal image |
knott--cops but beeper in car---tracked him to house---not search b/c followed on public highway--and outside house
karo---beeper in jar--search--b/c they took bottle into the house. dow chemicals--EPA used thermal imaging = not search factory= like open field doctrine= no expectation of privacy. conclusion using enhancement device is ok if it enhances natural sense and doesnt give info. that is not too intimate that cops couldnt have gotton anywhere else. |
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what will be protected by REP-4th
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persons
house papers(communication)---telephone conversation--internet. heat from home luggage manipulation closed phone booth curtilage |
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what has no REP under the 4th
not a search |
garbage on the curb
open field not in curtilage dog sniffing in a public space public airspace where anyone could have been open front porch |
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search warrant attack
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1. probable cause
2. neutral and detached magistrate have not relation w/ the police 3. how cops executed warrant search w/n the scope of warrant? 4. knock and annouced will not exclude the evid. b/c eventual discovery rule or exigent circumstances. rule totality of circumstances--supreme crt 5. good faith exception defense warrant request was not in good faith prosecutor search warrant was in good faith good faith not tainted by any prior investigation or knowledge of a wrong-doing |
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what are warrant exceptions
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1. exigent circumstances
2. search incidental to arrest 3. automobile exception 4. consent ( dont need PC) 5. Plain view 1. look for the trigger 2. scope of the search 3. time limit 4. rationale for the search warrant exception. |
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exigent circumstances
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1. hot pursuit
when cops see person in public--take off running into a house--cop can go after them 2. protect police or public safety cops have to go in or community will be hurt (community care taking) 3. to prevent destruction of evid. only applies to searches. |
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rule for incident to arrest
scope time limitation-- wat the case rationale |
scope
1. person= can search person and belonging you have w/ u 2. home= if arrest u in the home can only search wing-span/lunging dis---but can also do buie sweep time- usually expires when df is arrested and taken from home cops dont have to search immediately after arrest but close to it. --edwards rationale 1. mke sure arresttee is not dangerous 2. get evid. b4 arrestee destroys it |
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case for arrest outside
pros--argu df |
vale--- arrested outside cops and u stay outside.
pros-- exigent circumstances df-- could have secured the house and gotten a warrant b/c they could have secure the house, there is no exigent circumstances. |
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arrest in the house limitations
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1. cannot extend the search to cover the whole house.
chimel---case Buie-----incident to arrest can do sweep for others if arrestee is armed and dangerous.--Cops must have RS |
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arrest outside but df goes inside
what can cops do |
cops can follow w/ wingspan search even if handcuffed
segura case---agents sat inside the house for days until warrant got there--this was ok b/c they were securing premises and not searching. |
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can cops search car if person being arrested is passenger
limitation-- to car search. |
1. yes--if anyone in the car is arrested they can search the whole car but not trunk even
all compartment locked or not. search must stop when df is in police control. if handcuffed but next to the car= search ok but if handcuff and in the police car search invalid. |
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exception to car search
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if cops have PC= no need for Search warrant.
no time limits = but must still have PC for search and evid. is not stale rationale car= 1. lower expectation of privacy 2. highly regulated by gov. = not police discretion 3. rolling exigent circumstances (flight) |
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motor home-- car or home
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look to see if have wheels--if wheels = car
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warrant exception that doesnt require probably cause
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1. consent = if your stuff
2. apparent authority= if not your stuff. if roommate= consent only applies to common area. if conflicting yes and no no= wins |
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voluntary
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1. cant be coercive
scope = look at what is consented = RP standard can withdraw consent as long as cops havent gone there yet. |
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consent case
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rodriguez = ex gf let cops in to search== apparent authority
totality of circumstances if gf let cops in but men clothes everywhere and aprt is messy with toilet up. cops should know = not her place. |
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plain view
case |
is ok if from lawful vantage point w/o any manipulation.
hicks= cop saw something but flipped it over to get serial number not ok. plainview give PC - but can go in w/o warrant or warrant exception. ex 1. cop wlking by and see weed plant= cant get into house w/o warrant or warrant exception. ex2. cop in the house already and see weed planet= now has PC but no need for warrant b/c already inside the house. |
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what are the rules for administrative/special needs
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1. primary purpose= not criminal law enforcement.
but if they find crime committed they can arrest you for it. the arrest but be reasonable 1. balancing test gvment interest vs. degree of intrusion. |
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inventory searches
case |
1. vehicle must be
a. legally impounded b. b a policy in place colorado v. bertine DUI truck towede and search of closed backpack was ok b/c policy in place FL vs. Wells cops searched every container in the car--w/o policy search not ok. govrnment interests. security of cops protection of owner's property. |
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civil inspection---
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can refuse civil inspection
make them go get warrant camara warrant= PC based on administrative scheme camara case---fire deprt. searching for dangers in the house. |
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borders search
strip search body cavity |
search ok-b/c something or one is outside the protection of 4th and gov. need to keep country safe.
strip search= RS body cavity = PC if something in the body = can hold u as lng as it takes for you to poop out. but Cops cant x-ray w/o PC |
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public school kids search
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TLO vs. jersey case
---need some individualized suspicions to search kids ---need RS kid has something illegal or against school rules. ----search must be done by school not cops. ------only applies to public---not ------private schools------------- and search cant be too intrusive. |
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drug testing
case |
if done by gov. official = search
EARLS= kids being required to consent to drug test = ok b/c it was choice they made to participate= lwer expectation of privacy. chandler case public officials dont need to take drug test. b/c it doesnt affect his job. |
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drug testing reasonable
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----reasonable to test.
1. pilots 2. train engineers 3. public transport operators 4. dea agents 5. school kids in extra curricular not reasonable ---candidate for public office. |
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vehicle check points
case |
prouse--
1. need pattern (set be HQ) cops dont have discretion. 2. must be "presumptively brief" To detain you beyond the checkpoint = need RS sitz--- cops had drunks stop point 1. primary purpose = keep drunk off road gov. interest keep road safe and deter misconduct this was ok gov. interest = keep road safe degree of intrusion= minor stop. |
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edmond
ferguson lidster |
edmond---check point + dog sniffing for drugs= not ok b/c criminal stop not adminstrative. need PC
ferguson---drug testing new mom for drugs--not ok this was criminal search w/o PC lidster---road block looking for a witness hit and run--but df was drunks and they arrested him. this was ok. main purpose was for info. not criminal. |
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exclusionary rule
case |
evid. obtained in violation of 4th will be suppressed.
main purpose 1. deter police misconduct 2. preserve judicial integrity-crt cannot condone breaking the law. Mapp. v. Ohio ER applies to the state. |
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limitation to ER
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1. Only can be used in criminal def.
2. df must have standing 3. must be the prosecutor's case in chief will not be applicable in 1. deportation proceeding 2. tax hearing 3. parole/probation hearing 4. grand jury ( not a trial) 5. sentencing proceeding 6. knock and announce violation---hudson |
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what is standing in exclusionary rule.
case |
1. must be df own personal rights
payne cop knew info. was coming in and used the eivid. against a 3rd party. crt suppressed all info. b/c brief case was carrier and info. was third party. causation = Exclusionary rule |
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exclusionary rule
prosecutor case in chief |
1. prosecutor goes 1st and has burden of proof.
2. must show all element beyond reasonable doubt b4 he rest = case in chief |
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exclusionary rule exception
3 exceptions |
1. good faith
2. inevitable disc. 3. impeachment |
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good faith exception
and exception to the good faith. |
exclusionary does not bar the use of evid. obtained illegally by officer acting reasonable good faith when it cop fault
leon--- magistrate issued warrant w/o PC exception---- -warrant was not objective= NO PC. -warrant facially deficient= must name specifically looking for -No neutral and detached magistrate -where magistrate was lied to by police in affidavit. |
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what is inevitable disc.
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evid. that is illegally obtained that but it would have been found anyways.
-----in a short time exception------ will exclude evid. in which cops benefit from the violation. this falls under the knock and announce---- ----burden on prosecution |
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impeachment
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--anything that attacks witness credibility
--only applies if df takes witness stand ---also if df opens the door by testifying about a suppressed evid. |
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samson case
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parolee can be searched any time
b/c they dont have a reasonable expectation of privacy--they are in custody |
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what is the Griffin case
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propationer = public school students need Reasonable suspicion.
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what is the fruit of the poisoness tree
and what are the 3 exceptions |
fruit of the poisonous tree is an exclusionary rule.
evid. that police discovered as a result of 4th violation but for the illegal search/seizure, they wouldnt have found the evid. 1. inevitable disc. rule 2. independent source rule 3. attenuation. |
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what is the murray case
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this explains the exclusionary rule
if cops got warrant as result to seeing the illegal evid. then warrant and evid. = suppressed |
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what is inevitable disc.
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even but for the illegal disc. the cops would have disc. the illegality anyways.
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independent source rule
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source discovered independent of the illegality.
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attenuation
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break in chain of events--intervening event of significance
---time betw arrest and confession. wong song case---evid. will get admitted in. |
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when can statement obtained after illegal arrest come in
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ny v. harris = when the illegality has ended.
cop had probable cause but no warrant to enter the house----df was taken outside and he confessed to the crime. confession was ok once he was outside---illegality has ended= admissible. |
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what the exceptions to witness within the illegal search.
df argue v. prosecutor |
if found witness illegally their testimony can be suppressed unless witness is ready--willing and able to testify---the more willing the better.
df if not illegal = not found prosecutor= the more willing = inevitable disc---he would have came forward---the more willing. |
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what do u need for wire tapping
and wat is the case. |
wire tapping
title 3 warrant berger case-------------- 5 requirement. 1. non-consensual interception ---talking to undercover cop = consensual 2. of contents ----substance of the conversation 3. of any wire, oral, or electronic commun. 4. through the use of electronic, mechanical or other device. 5. that invades REP( reasonable expectation of privacy) |
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is breaking in and install wiretaps ok
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yes ==== dalia
but the there must be a limited within the scope cannot leave it one for 24 hrs title 3 only applies to fed. states have to have their own |
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what guides confessions
for feds. and states |
can coerced confessions
feds are guided by 5th = right not to incriminate yourself. states--14th guides the state. |
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what are the voluntariness factors
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1. characteristic of accused
2. circumstances of police misconduct 3. amount of time btwn arrest and interrogation 4. events of intervening significance 5. were miranda warning give. |
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mincey v. arizona
fulminate ------------------- miller |
mincey= df questioned in the icu asked for his lawyer but couldnt go anywhere.
fulminate= if doesnt confess will tell prisoner he was kiddy killer. example of involuntary confessions. example of voluntary== miller--- cops told df he will get psych if he confessed. |
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what is miranda
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cops informing you of your rights.
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when is miranda required
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PCI
1. police = perkins --- miranda only need to be given when the people know that its a cop. undercover dont need to give miranda b/c there little to no chance of coercion. 2. Custodial Questioning officers after into custody or deprived of his or her freedom in any significant way. 3.interrogation express/direct question or functional equivalent. |
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ex-- of cases of custody vs no custody.
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beckwith = df questioned in his home and he let cops in and cop never exerted any force.
orozco- df question at his house at 4 in the morning in his bedroom. |
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consensual custody
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consensual---
matthiason= made appointment at the police station, showed up for it. Beheler= voluntarily went to cops to talk. Yorborough= cops called parents who bring son downtown murphy= meeting with probation officers are not coercive. |
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what is police interrogation
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express/direct questioning or functional equivalent that reasonable person would know to lead to incriminating response.
RI v. Innis - cops had conversation in front of df --about gun df confessed. not interrogation b/c cops didnt know he would be so sensitive. |
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brewer case
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df gave a speech about how df would not get a christian burial---cops knew his trigger and used it to make him confess.
no good |
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penn v. muniz
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arrested for dui no miranda were necessary for booking question but then asked him to compute from mem. wat his 6-bday was.---this going over the line need miranda.
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what does miranda bar--
schmerber wade hibel |
miranda only bars testimonial info. not physical evid.
schmerber= blood test = evid. ok = physical evid. wade= line up and made him talk loud = ok = not testimonial hibel= officer asking for name is not private. |
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what does miranda require the police to do.
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1. right to remain silent
2. if you give up that right, anything you say can and will be used against you in the crt of law. 3. right to attorney 4. if you cannot afford one, one will be appointed to you. Cops must also reasonably convey the miranda ambiguity is ok as long as its reasonable. = cannot lie. df can waive his rights to miranda. |
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what is a seizure
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reasonable person would not feel comfortable walking away or not feel free to decline.
can be done by show of authority or physical force. |
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Terry v. ohio case
seizure--- |
officer watched 3 guys walking around and looked suspicions
cop approached them and asked some questions--and frisked them for weapons no violation of 4th b/c he was searching for weapons. |
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Hodari case
seizure |
df fled when he saw cops approaching and threw rock
not seizure if cop show authority and suspect doesnt summit. |
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bostick case
search and seizure |
cop got on bus and search luggage and he agreed
this was a search b/c a reasonable person would not have felt that he could refuse. |
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brendlin
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when a car is pulled over everyone in the car is seized.
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what is the justification for seizure
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Terry v. ohio
need reasonable articulable suspicion that is a crime is about to be committed. |
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what is the two step analysis for seizure.
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1. cop must give specific and articulable facts and officer experience.
2. the seizure lasted long enough to confirm or dispel suspicion. |
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what is needed for a non-terry seizure.
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Gov. interests v. degree of intrusion.
when there is reasonable suspicion of criminal activity, the Gi will always be satisfied. |
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arizona v. jonhson
search and frisk--- |
d was in the backseat for a traffic violation and cop notice people in the back who was wearing gang colors---and cop asked everyone to get out and cop frisked everyone.
this was ok under 4th= cop had reasonable suspicion that df was armed and dangerous. |
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sokolow case
profiling---- |
he bought tickets for miami and only stayed for 2days--he fit the drug carrier profile
fitting profile = not enough for reasonable suspicion. seizure is not justified unless the officer can give specific articulable facts. |
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sibron vs. N.Y
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df was seen talking to a know drug dealer but there was no exchange--
talking to criminal itself will not justify reasonable suspicion. |
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adams v. williams
informant |
officer relied on informant tip that d--had gun and was sitting in the nearby car with drugs on him.
look see if reliable informant ---just cause the activity does not mean cop cant have reasonable suspicion |
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minnesota v. Dickerson
manipulation case |
the cop frisked officer and felt a small lump in the df pocket and he moved the stuff around and decided that it was crack.
--cannot manipulate something to determine that it is illegal. ---frisk is ok as long as you are just looking for a weapon is ok. |
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illinois v. wardlow
---reasonable suspicion |
df saw cop and started running.
if run in a high risk crime area= will not give reasonable suspicion but it will be a factor to consider. |
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first touch doctrine
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as long as they are still within the scope of a weapon frisk and then they feel something that they immediately think to be drugs= they can take it.
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plain view doctrine
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if cop see something in plain view
and they have legal right to be there. they can take it item. |
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long case
car search |
cop saw car swerve and fell into a ditch and they stopped to investigate. cops found drugs and knife.
----search for weapons in a car are limited to the places where the weapons could be hidden. |
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buie
---house search |
one of 2 df suspected in armed robbery was seized in his house.
--the search for the other is ok if reasonable suspicion that there will be another person who could hurt cop. usually need warrant to search someone house. |
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mimms case
---car search |
guy was stopped for expired plates
asked to get out and cop saw bulge and searched = gun. lawful stop--they have discretion to make u stay in or get out of the car. ---if they reasonable suspicion then they can search. |
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caballes cas
----car search |
df was stopped for speeding and drug dog was brought over to sniff cop found pot.
search--is anything that invades your reasonable expectation of privacy. dog sniffing not a search b/c public space was sniffing public area. |
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summer case
----detainment gi vs DI |
cop had search warrant for search df house--he was coming out and cop made him stay for the search.
this was a minor league seizure that is not terry-stop use the GI vs. Di test -GI win b/c had warrant and GI out weight the degree of the intrusion. |
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ybarra case
----search of public place |
warrant was issue for search of bartender---and other people were also searched in the bar.
associating near criminal activity does not give rise to probable cause without more. |
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davis case
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fingerprinting case
24 blck people were asked to be finger printed and df was arrested finger printing is a search and seizer- if not probable cause. |
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what do cops need for major league search
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probable cause + warrant
or warrant exception or consent. |
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what is probable cause
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the level of suspicion that the police to justify an arrest.
what they need to conduct a full search |
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place case
---search and seizure exceeding its limits |
the police knew df was coming and had drugs--they took his luggage from one airport to and another---and they waited from friday to monday to get warrant and do search.
here the police exceeded their limits. |
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spinelli---case
----informant |
df was convicted of gambling of fed. stat. his arrest was based on the affidavid with info. name on it.
the formant info. was not detailed enough stating how they know what they knew. |
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gates
----informant |
anonymous tip was given to police about a couple that was traffic--the tip was very specific about how the couple did it.
this overturned spinelli case---for informant= totality of circumstances. |
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what are the details for inform.
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1. veracity
2. credibility 3. reliability 4. basis of knowledge 5. predictive detail 6. corroboration |
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what if something in affidavit was wrong or lie but everything else was right?
|
exclusionary rule the evidence is bad but affidavit is still good--the police can not benefit from their wrong----put them in the position they would have been.
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J.L case
anonymous caller--- |
anonymous caller report to police that blck man standing at bus stop and carrying a gun.
this was not ok-- reasonableness be there before they conducted their search. |
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upton case
informant w/---motive |
df ex-gf ratted out on bf and
it ok-- because she had good details know the inner workings of wat the bf was doing |
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pringle case
-----probable cause case |
everyone in the car was seized and drugs was found---everyone in the car denied the drug was there.
probable cause to assume that anyone or everyone in the car owns the drugs |
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what do you need for an arrest
|
1. probable cause
2. warrant exception for arrest ----always need PC for an arrest but do not always have a warrant for an arrest. --------dont need warrant if something is happening in front of you (exigent circumstances)--- or arresting someone outside of their home |
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|
steagald
------arrest---search |
cops went into df house looking for someone else---found drug in plain view.
not ok b/c no search warrant for someone else's house--only arrest warrant for the person. |
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what are some ways to get into the house w/o
|
exigent circumstances
1.hot pursuit 2. prevent destruction of evi. 3. prevent danger or injury to the police or public. 4. prevent flight |
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warden---case
hot---pursuit case |
police got info. of armed robbery and perp-- had entered certain house give mins--armed and dangerous.
this was ok---hot pursuit. |
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santana---case
---public vs. private |
df was found in the doorway and cops pulled her out of her house to arrest.
court said this was ok because she was in between. |
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brigham
|
cop saw from outside man getting punch to the point blood coming out
cops can enter house w/o warrant---community care taking but anything that find in plain view can be used--- |
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vale
|
df was arrested outside the home and police went into the house to do a search.
nope-----the arrest outside cannot provide its own exigent circumstances. need warrant to search the house |
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|
mcarthur case
informant search |
wife was removing stuff from the trailer house and ratted on the husband.
1. the police had probable cause 2. police had good reason to enter--destruction of evid. if not 3. the police did this in a reasonable manner. |
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|
what are the 2 perspective to a seizure
|
1. reasonable person perspective
2. show of authority/physical force + submission. |
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|
when is a stop justified?
|
1. terry frisk--for weapons and cop safety
2. limited search (list the justification) a. of person b. of the car c. of the home d. of the public place |
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|
what is the terry time limits.
|
enough to confirm or dispell suspicion that is articulable criminal activity.---and is reasonable under the circumstances.
|
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|
what do you use for a non terry stop.
|
the balancing test.
|
|
|
what is a seizure.
|
anytime a gov.--or actor interferes with your right to left alone.
|
|
|
what are the 2 perspective for minor league seizure?
|
1. reasonable person perspective:
would a reasonable person feel free to walk away or feel free to decline the cops request. 2. physical force or show of authority and the person submitting to it. |
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|
when is a stop justified
|
when there is a specific and articulable facts leading to reasonable suspicion of criminal activity.
reasonable suspicion is very low standard---less than PC (51%) terry ---good seizure sibron---cops saw dude talking to a know drug dealer and seized and search him = not good enough--not reasonable suspicion. terry search is always for a weapon |
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|
what is example of a case stop is justified.
|
wardlow= unproved flight + high crime area= RS
running by itself is not enough for RS if + facts might be. |
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|
what is the case for profiling to be ok.
|
sokolow--cops had a drug courier profile but this alone does not lead to RS
|
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|
when is a stop justified if not using the terry standard.
|
then use the balancing test
Gov. Interests vs. degree of instrusion. gov. will always usually win if stayed within the terry limitations 1 have RS 2. the stop was presumptively brief. |
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|
when does a search occur?
|
any time a gov. invades a reasonable expectation of privacy
high expect: home low-----expect:car |
|
|
terry frisk minor or major
|
a terry frisk is presumptively brief pat down of the outer clothing.
if cop feels weapon he now has probable cause and can go in and get the weapon. terry frisk need 1. reasonable suspicion of criminal activity 2. reasonable suspicion that suspect is armed and dangerous. |
|
|
what are the minor league searches
|
1. person
2. car 3. home 4. public places for minor league cops are only searching for weapons. |
|
|
what case gave rise to 1st touch doctrine
|
dickerson--
if a cops feel something he can go in and get it if he can identify immediately what the object is. |
|
|
search of car---what case
|
long--car ran off the road and cop saw knife in the car and does a search of the car
if you have reasonable suspicion that person is armed--can loook anywhere if df can reach for weapons---except the trunk |
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|
search of home---what case
|
buie--terry frisk of the home looking for another in the home who might be armed and dangerous----must have reasonable suspicion that there maybe another in the house---
can only look at where a person might be able to hide. |
|
|
search of public places--what case
|
ybarra---cops had warrant for bar tender and search everyone--
cant do that if dont have individualized reasonable suspicion. exception---in home you can search anyone w/o reasonable suspicion. b/c common scheme and or interests. |
|
|
what is the terry time limit
|
sharpe---as long as reasonable to confirm or dispel suspicion of a criminal activity.
robinette---cops dont have to tell you when its over-a reasonable person would know. exception---place keeping a person luggage is seizing the person = could lead to arrest w/o probable cause. |
|
|
non terry stops =
cases |
dont use terry here b/c person being stop is not suspected of crime
use = balancing test. gov. interest 1. facilitate search 2. prevent flight 3. cop safety 4. prevent destruction of evid. vs. degree of intrusion summer---cop made him stay in his own house while searching mcarthur-- if suspect comes home cop can follow him around the house---this is to prevent destruction of evid. |
|
|
what do you need for probable cause
|
reasonable articulable facts that a criminal activity is taking or is about to take place.
|
|
|
what do you need for arrest.
|
PC + arrest warrant or
PC + consent PC+ exigent circumstances |
|
|
what are the three big cases for arrest
|
1. dunaway- guy picked up and taken to the police station--he was told he wasnt under arrest.
----crt said this was arrest w/o probable cause. 2. royer--guy at airport ask to come into a room 3. davis- had info. that one blck dude committed a crime but rounded up 24 blck dude and detained them to get finger prints ---this was a seizure cause cops didnt have probable cause. but finger printing is ok--like an id crt--arrest without probable cause |
|
|
gates
anonymous informant |
rule--totality of circumstances
5 test 1. credibility = about informant if anonymous -- cant really show credibility 2. reliability= deals with the tips and the info. 3. basis of knowledge where does the knowledge come from? 4. predictive details 5. corroboration his story or whatever checks out. |
|
|
what are the cases that show anonymous tip can lead to reasonable suspicion.
|
Jl--someone said plaid shirt dude was standing on the bus stop---
crt said not RS because that could have been anybody. white-- crt said RS.--tip about cocaine and a hotel room ---this was ok= RS finding someone who fits that description was unlikely. upton-- ex-gf called and told cops that he has stolen goods= just cause caller has motive wont strike the info. down. |
|
|
what rule lets cops add to affidavits
|
franks rule= to get evid. suppressed- must prove statement in the affidavit
1. false 2. reckless disregard for truth 3. but for this lie the warrant would not have been issued. |
|
|
what is affidavits
|
memorializing the probable cause in the writing. this freezes time---they can add facts to after and add stuff to the affidavits.
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|
|
what is needed to arrest someone with no warrant
|
arrest made outside - no warrant is needed
watson case= you can arrest if in a public place and felony. misdemeanor:cant arrest without warrant unless cops see person committing the crime. |
|
|
what is need for arrest made inside the home.
|
arrest for person in the home---must get arrest warrant based on probable cause absent or exigent circumstances
Payton case. |
|
|
what is the knock and announce rule
|
police must knock first---if they dont answer they can knock the door down if have PC that suspect is inside
|
|
|
what is need for arrest in home
|
to arrest in their own home- need PC and
1.consent 2. arrest warrant 3. Exigent circumstances |
|
|
what is need to arrest someone in someone else's house
|
PC and
arrest warrant for suspect and 1. search warrant (3rd home) steagald: searching a 3p home w/o warrant for someone for whom they had arrest warrant for. crt said no good everything gets suppressed. |
|
|
what is a search
|
when reasonable expectation of privacy has been invaded.
2 test 1. subjective prong-- person exhibits and expectation of privacy 2. objective standard= society recognize that expectation is reasonable. katz= cop put stuff outside the phone booth to listen on the conversation. crt said not ok --person expected privacy --society acknoweldges b/c y have folding doors otherwise. |
|
|
what is the open field exception.
case--- and what is the exception |
the 4th does not extend to open fields because there is no Reasonable expectation of Privacy.
so--gov. action in open field is not a search. Oliver---marijuana fenced in the field, not in curtilage-- Not a search even though --subjective part was meet.--- --objective part was not recognized by society. exception---front porch is the only place that 4th will protect. |
|
|
does the 4th amendment restrict someone from view airspace.
|
if in public and legal airspace and anyone could have seen it = then its not a search
riley -- case---planes flying by and saw into roof of a green-house crt- not a search. |
|
|
what do you need to search the trash
|
society does not recognize a reasonable expectation for privacy with trash--b/c once it is put out--its in public domain and anyone can go through it.
greenwood case-- buy put garbage out and had drugs paraphernalia in it--and police took it. |
|
|
what was the bond case
|
police came on the greyhound bus and squeezed and probed passenger's luggage--
crt said this was search. people expect their luggage to be handled and poke and prodded but they do not expect luggage to be manipulated. |
|
|
Place case
|
dog sniffing luggage is not a search
if the dog sniffs and alert the cops= probable cause if you can show dog is well trained and has good track record. if odor is public airspace, not a search. dogs are like cops--can only be in places cops can be. |
|
|
what are the 3 rules from place case
|
1. seizing traveler's luggage is seizing the person.
2. seizing them for too long on RS = arrest and illegal if no PC 3. Dog sniffing is not search. |
|
|
what is the rule for enhancing devices
wat is the case knott dow chem. kyllo |
using an enhancement device= search if
1. could not have gotten by natural senses from public space 2. device reveals intimate details. knotts = beeper tracked where person was going and showed them t where person cabin was--- this was ok b/c public highway and cops was watching from outside. dow chemicals= EPA trying to figure out if co. polluting--they used photo mag. tech. = lay out of the factory and hot spot. ==search kyllo= used thermal imagery to find pot=====search |
|
|
what is the search warrant attack
|
1. probable cause
2. good faith exception 3. neutral and detached magistrate 4. warrant execution 5. knock and announce. |
|
|
what is the good faith exception.
|
prosecution = search warrant was requested in good faith + PC
defense = prosecution is lying and had no PC |
|
|
what is the requirement for magistrates.
|
1. must be neutral and detached
2. magistrate is hire by district crt judge--not executive branch of gov. ( cops) |
|
|
what is the attack outline for execution of warrant
|
1. was the warrant properly executed?
was it ripe? 2. did they stay within the scope of the warrant? did they search what the warrant was set out to search or did they go beyond the scope. |
|
|
knock and announce rule
|
the case by case
even if the cops dont knock the evid. still comes in. totality of circumstances exigent circumstances could apply and evid. dont get suppressed. |
|
|
what are the warrant exceptions
|
p--plain view
a--automobile exception c--consent e--exigent circumstances s--search incident to arrest |
|
|
what do you look --when search warrant
|
1. tigger
2. scope 3. time limits 4. rationale |
|
|
what are the exigent circumstances
|
1. hot pursuit
person in public to begin with and the run into private place= can legally chase them. 2. prevent flight keep them contained. 3. to protect the public and police must go into private cause people can get hurt. 4. prevent destruction of evidence. 5. community care taking--can go into private to take care of potential danger.-----Brigham limitations if misdeanor---police cant go into the house. |
|
|
what is the search incident to arrest.
|
cops can do a search after lawful arrest.
home- can do search within D wingspan/lunging distance---BUie sweep for weapons and dangerous people. car-- can search passenger compartment and containers within it time limitation= ----home = time expires when D was removed from home ----rationale is make sure that arrestee is not dangerous - get evid. b4 it is destroyed. |
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|
search incident to arrest outside the house.
|
Vale-- if you arrested outside the house you stay outside.
cops can force df back into the house. but if Df wants to go Cops can follow and everything is plain-view. |
|
|
diff. Gant v. Long
car search------- |
long---allowed protective sweep of all compartment in car for weapons
Gant= he got out of car--then cop searched- absent of warrant and probable cause. crt= not ok---no exigent circumstances or PC or police protection. |
|
|
schmerber case
|
making someone take a blood test is ok--if time there is exigent circumstances.--e.i being drunk
|
|
|
automobile exception
motor home |
need PC
--- houghton case ---- police can search purses of passenger left in the car. ---time limit no time limit but have still hve PC and evid. is not stale ---rationale----- car = lwr expectation of privacy highly regulated by gov. car = rolling exigent circumstances motor home= look a mobility to determine if its not on cinder blocks = car but if it is = need warrant to search |
|
|
what is only warrant exception that does not require probable cause
what are two types of consent |
1. consent
but can not consent to arrest= Cops need PC 1. actual authority= this is my stuff and cops can search it 2. apparent authority= not my stuff but a reasonable person going through it could think that it was. |
|
|
what is voluntary.
|
not coercive
|
|
|
what is the scope and range of consent.
and what is ex apparent authority. |
rodriguez case--gf let cops in and reasonable that she had authority.
-----when giving consent---can take it away anytime b4 cops get there |
|
|
what does Plain view give the cops
|
hicks case---cops was flipping item over to get the serial number to see if it was stolen or not.
Plain-view give cops PC--but still need search warrant or warrant exception to go inside the house. |
|
|
what are the two rules for administrative/ special needs
|
1. primary purpose must not be criminal law--but if cops find some--they can use it.
2. must be reasonable balancing test gov. interest v. degree of intrusion |
|
|
what are the ways to get into a car w/o warrant
|
1.terry stop to find a weapon
2. search incident to arrest 3. automobile exception 4. consent 5. plain view 6. inventory search |
|
|
what are the searches cops can do for admin. and special needs.
|
1. inventory search
2. civil inspections (camara) 3. border searches 4. public school kids 5. drug testing 6. vehicle checkpoints 7. quasi criminal situation. |
|
|
what do cops need for inventory searches
|
1. car must be legally impounded
2. there must be a policy in place. bertine--DUI car got towed and impounded inventory search was ok b/c there was a policy. Wells--there was no policy for closed container---so- cops couldnt go in and get the stuff. rationale------ 1. protect owner's prop. 2. cop safety. |
|
|
what is the name for civil inspection warrant and what needs to be on it.
|
camara warrant--needs probable caused based on administrative scheme--
|
|
|
what do you need for border search
|
search is always reasonable
use the balancing test rationale keep the country safe strip search = RS body cavity = PC |
|
|
TLO
|
crt held that for search school need individualized suspicion for search
----RS kid is breaking law or violating school rules. |
|
|
what does earl and chandler case say.
|
Earl = kids doing extra-curricular activity have low of Privacy
chandler= making officials take a drug test= search b/c it doesnt affect his job. |
|
|
what is needed for vehicle checkpoint
|
1. need pattern (head quarters)
2. must be brief |
|
|
wat was the line drawing cases for check point vehicle checkpoint.
|
Edmond- check point + dog sniffing = criminal checkpoint
-----crt said no good b/c now the main purpose to to catch criminals not administrative. ---Need RS or PC for checkpoint like that. ferguson--testing new moms for drug use = criminal scheme. lidster= road block to ask about a hit and run---this was ok b/c it was to ask question not criminal |
|
|
what is the diff. searches for parolee vs. Probationers.
|
Samson---Parolee= be searched at anytime--no REP b/c they still are in custody.
Griffin----probationers are more like public school students--Cops need reasonable suspicion. |
|
|
what is the Exclusionary Rule.
what case is it from. |
essentially penalty for the police misconduct where the evid. of misconduct will be suppressed.
Mapp v. Ohio= ER applies to the states this serves 2 purposes 1. deter police misconduct 2. perserve judicial integrity--crt cannot condone breaking the law. pro-cons of the rule. benefit = deter police misconduct Cost = guilty people go free. |
|
|
what is the limitation to the exclusionary rule.
|
1. can only be used in criminal trials
2. for df to use df must hve standing. 3. must be prosecutor's case in chief.( laid the whole foundation for their argument) |
|
|
the exclusionary rule does not apply to
|
1. deportation proceedings
2. tax hearings 3. parole/probation hearings 4. grand jury ( to see if there will be a trial) 5. sentencing proceedings |
|
|
who can raise the violation to 4th amendment
|
1. those with standing--Reasonable expectation of Privacy.
ex passengers in a car--do not have right to challenge bad search of a car. (Rakas) ex. overnight guest will have standing REP (minn v. carter) |
|
|
what was the standing case that exemplify what it is to have standing
|
Payner= guy brief-case. and cops intercepted and did and illegal search and prosecuted
|
|
|
what is the 3 exception to the exclusionary rule.
|
1. good faith
2. inevitable disc. 3. impeachment |
|
|
what Good faith exception.
|
exclusionary rule will not apply if cops got the illegal evid. in good faith. and it was not the cops
fault---Leon exceptions = 1. warrant so lacking in probably cause that 2.warrant facially deficient: must have name specifically what you are looking for. 3. if you dont have a neutral and detached magistrate. |
|
|
what is the inevitable discovery
|
evid. illegally obtained may still be admitted if
1. it would have been found anyways if the cops kept searching 2. would have been found in the same condition within a short time. |
|
|
what is impeachment purposes
|
anything that attacks witness credibility.
--apply to df if he takes the witness stand. --if df opens the door= can only be used to show that df is lying and it doesnt come in. |
|
|
what is the def. of fruit of poisonous tree
what is the 3 exception to the fruit of the poisonous tree. |
thing that police discover as a result of 4th amendment violation.
1. inevitable disc. rule 2. independent source rule 3. attenuation |
|
|
what is inevitable disc.
|
just like exception to ER.--they would hve found the evid. anyways
|
|
|
independent source.
|
independent of illegality situations where the seizure for was legal--the fact your rights were violated had nothing to do with it.. there's a disconnect.
|
|
|
what is attenuation.
what is the four test. |
is a break in the chain- wong sun case--df was illegally arrested and then released but he came back to confess to the cops.
1. is the event intervening significant 2. how much time has passed 3. how bad was the police activity. 4. was there a miranda warning. |
|
|
is evidence admissible if 1st illegal but then custody becomes lawful.
|
harris case = Cop has warrant for arrest but didnt not have search warrant. Everything was ok when df was taken outside. = everything outside is admissible.
|
|
|
can a discovery of a witness be suppressed if he was found illegally.
|
yes---unless it can be shown that the witness is willing and able to testify
|
|
|
what is case that permits wire tapping
|
Burger---can only be used if there is a statutory authority for it.
|
|
|
what is requirement for wire taps
|
title 3
1. non-consensual interception 2. of contents substance of the conversation 3. of any wire, oral or electronic communication. 4. through the use of an electronic, mechanical device. 5. that invades a REP(objective & subjective) Dalia--its ok to break and install wire tap. cant leave it on for 24hrs. title 3 only applies to the feds. |
|
|
what protects involuntary confessions for fed.---states
|
feds. = violates 5th right =free from self incrimination.
states = 14 right to due process |
|
|
what are some voluntariness factors
when do you discuss the voluntariness factors |
1.
characteris of accused a. how old was the person b. what condition is the person in c. is the person disable 2. what are the circumstances of the police misconduct a. how bad did the cops mistreat the suspect. b. did the cops exploit the suspect is a bad way. 3. amount of time time btwn the arrest and confessions 4. events of intervening significance did df leave and see a lawyer 5. were miranda warning given ** the more vulnerable your suspect is the less nasty the cops must be ** The more experienced the suspect the more nasty you can be against him. only talk about them when you see boo hoo factors---like overbearing police and weak defendant. |
|
|
case of voluntary confessions.
and voluntary cases |
MINCEY---df in icu and questioned he asked for lawyer but never got it.------involun.
FULMINATE--used df hist. in prison to get coerced confession-told if he didnt talk cop will tell he was kiddy rappist miller--cops promised if he confess he would get psych-help this was ok. |
|
|
is miranda the same thing as the 5th amendment
and wat can df argue |
no--miranda is prophylactic rule to let the people knows of their rights---but 5th is stronger.
1. got miranda but my statement was involuntary 2. my statement was volu. but i didnt get mirandas 3.i didnt miranda and my statement was involun. |
|
|
when is miranda required
and what are the exceptions |
PCI
p--police---involve perkings----need to know interrogator is police ex--undercover cops dont need to miranda---only need to give when its know police custodian interrogation. c-custodial where Df was questioned was it home-police station-roadside. 3. interrogation |
|
|
when is a person in custody.
what is the custody test. |
No---custody
Beckwith= df questioned in his own home and police never exerted any force or made arrest Custody---- Orozco= df questioned at 4am in his own bedroom. the custody test is 1. see how they got to the police station. 2. look to their expectation = just chatting and then going home |
|
|
what is interrogation
cases |
express questioning or any functional equivalent.--
*any words *or action *by police *reasonable person * elicit a response. Innis= cops talking about handicap kids in the area they might hurt themselves w/ gun. df---confessed. = not interrogation brewer= cops knew and used the christian burial to each other= interrogation b/c cops knew weakness. |
|
|
ID questioning a type of interrogation
|
Penn-case----no miranda for booking questions but when ask df to recite form mem. what day his 6th b-day fell one---need miranda
|
|
|
what does miranda warning bar
case-- |
it only bars testimontial info.
--Cops can force suspect to do physical stuff--like blood sample is not testimonial ---wade--making df talk in a loud voice is ok |
|
|
what does miranda require police to do
|
1. right to remain silent
2. if you give up that right, anything you say can and will be used against you in the court of law. 3. right to an attorney 4. if you cannot afford one, one will be appointed to you. |
|
|
what does the warning need to convey
|
it must be reasonable convey- ambiguity is ok as long as its reasonable--cannot lie.
prysock--it ok that cops did not tell df he had a right to free lawyer. duckworth---cops told df he could get a lawyer until he was in crt. |
|
|
how can a df waive his rights
|
KIV
1.knowingly(read your rights)--- 2. Intelligently(understood them)- 3. voluntarily (w/o coercion) burden of the prosecution to show df voluntary waived. **the withholding of MW is only relevant to the validity of the waiver if it deprives df knowledge that is essential to he understanding of MW. |
|
|
what is the burbine case
|
sister hire a lawyer and df confessed b/c he didnt know that sis-hired a lawyer.
crt = ok events unkown to df do not affect his waiver. |
|
|
what does miranda require in terms of waiver
|
KIV
knowing-intelligently-voluntary. --burden is on prosecution to show waiver --deliberately withholding info. by not ok if it affects df understanding of miranda. |
|
|
what does miranda require in terms of waiver.
|
df does not have expressly state--put into writing that they are waiving miranda---butler rules
|
|
|
what is waiver usually based on---
|
1. silence
2. understanding of rights 3. conduct **waiver can never based in silent alone.*** |
|
|
what is limited waiver
|
you can waive your rights to oral statements and invoke to written statement---Barrett case
|
|
|
how do df invoke rights to miranda
|
right to counsel= everything must stop ( edwards)
cops can only come back if 1. lawyer is present (minnick) 2. Df reinitiates (must re- mirandize) |
|
|
are there any exceptions to miranda
|
1. public safety
2. fruit of the poisonous tree 3. physical evidence 4. impeachment |
|
|
public safety---miranda
|
any questions that reasonably prompted by concerns for public safety
Quarrel--black dude at supermarket--no gun found on him cop asked where was the gun---df told w/o miranda warning --this was ok b/c public safety. |
|
|
fruit of poisonous tree to miranda
|
---doesnt wrk for miranda bc its not violation of constitution
elstad--oops cop got info--and he was he confess--but was not given Miranda---cops goes in and gave mirananda and he confess again---crt said this was ok seibert---same thing but cops did this on purpose---nope doesnt come in |
|
|
physical evid.--miranda
|
never suppressed as a result of miranda violation.
---patane rule= if physical evid. is disc. result of miranda violation= evid. in---confession out. |
|
|
impeachment---miranda
|
if confession is suppressed b/c bad MW--can still use it to impeach df.
doyle--df involved the 5th at trial lawyer said he must be guilty---cant do that jenkins--post miranda---post miranda silence is not admissible against you |
|
|
what is the 6th amendment
what triggers it |
constitutional right to counsel
right to lawyer when adversarial judicial proceeding (AJP) begins indictment( consider to have a trial or not) b4 a grand jury--df dont need to know they were indicted. arraigment-states= complaint is filled and suspect picks up and goes b4 a judge. |
|
|
would 3rd party instructed by police be violation of 6th amendent
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Kuhlman--cop told inmate to report and statement made by df= not 6th violation
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what does montejo case talk about
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overturned Jackson--bretz case
---if df is arraigned/indicted and ask judge for lawyer---cops can still come in and mirandized df to get waiver--- need to tell cops for 6th to apply not judge any 3rd party |
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what is needed for waiver
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1. must be clear and explicit
2. most case MW are ok to waive 6th **2 exception 1. police must tell df about info. about their lawyer (burbine) sis---got lawyer and cops never told 2. failure to tell df he been indicted violates = voluntary and intelligent (patterson) |
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what is needed to use confession by undercover cops.
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1. if cops are just there listening then its ok
2. --if they initiate the conversation then its not ok--cant use it |
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what do you need for eye witnesses
and wat is the exception ID in crt exception |
adversarial judicial proceeding (AJP)
only applies to critical stages--interaction of gov. with df and witnesses= trial like confrontation 1. interrogation 2. line-ups 3. trial 4. preliminary hearings emergency--Stoval= brought in suspect in chain with 7 cop so dying witness can ID= ok exception= independent source rule = only can ID them in crt only if they know person independent of illegal proceeding |
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what does cost analysis apply to?
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--only judge made rules and not constitution itself
harvey and ventris |
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what is the limits to right to counsel
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old rule= only applies to fed. (betsy v. Brady)
exception = death penalty. new = anyone who commits a felony (sentenced 1yr or more)= lawyer. misdemeanor rule= no right to lawyer unless you are going to jail. ***cant send u to jail if dont have a lawyer. but can fine and probation---but if violate probation and didnt have lawyer in 1st plce still can go to jail. |
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what shots can df call
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1. right to got to trial
2. right to have jury or bench trial ( on the record) 3. right to testify ( doesnt need to be on the record) jones--case |
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what is the strickland 2 prt test
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determine if lawyer is constitutionally ineffective= deny due process
1. must show lawyer performance was OBJECTIVELY deficient 2. BUT FOR the deficient performance it would have come out diff. must show prejudice (Cronic Rule) ***exception where there is no lawyer at all## prejudice assumed or lawyer always absent. |
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what is grand jury immunities
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1. derivative use
cant use any words against you that you say to pro 2. transactional immunity can't prosecute you at all |
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what is double jeopardy
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---cant be tried for the same offense twice
exception---blockburger test if each crime has a unique element = seperate crimes. Same offense if = rise of same transaction all the elements of one are present in other. Cobb--indicted about burglary but questioned about murder---violation of 6th. |
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when does DJ clock start ticking
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1. any dismissal of the case b4 jury sworn in.
2. but if dismissed after jury is sworn in aske " was the dismissal equivalent of an acquittal?" 3. if found "not guilty," its over--but diff. offense arise out of the same transaction, then they can try you. |
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double jeopardy exceptions---where you can be tried for the same crime *2
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1. dual sovereign exception (heath) right for each gov. right to prosecute crimes in their own jurisdiction---you can get tried for fed. crime and state crime in same state.
2. waiver df mistries or appeals 3. manifest necessity hung jury: must be unanimous, or where judges had to grant mistrial ( request of prosecution) ---can be tried again for that crime. ---due process violation-if prosecution intentionally gets df to move for a mistrial by acting outrageously. |
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what is needed for a jury trial
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1. right to jury trial if charged with serious/non-petty (anything that carries a possible punishment of 6months or less) offense.
--cant add up jail time for numerous offense to get a jury. --jury must be fairly selected from a cross section of the country... can not exclude jurors based on race/gender. if 6 jurors = needs to be unanimous if 12 : 11-1, 10-2 (can work if agreed to) |
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unduely
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if conduct has unduely suggestive the conduct will be considered against due process
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applealet parachute
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cant let prosecution make error--df= failing to object and use this on appeal.
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kirby case
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if AJP line up was done b4 charge or custodial arrest= no violation of 5th and 6th amendment
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betts
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states dont have to appoint lawyer
-----exception- death penality or complex cases. |
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gideon
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if sentence is more than 1yr
state must appoint a lawyer.--- |
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argersinger & scott
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misdemeanor---if sentence to jail then must give a lawyer.
judge decides-- if wont give lawyer = no jail if have lawyer = jail. |
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if on probation the and fail probation--
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can not send to jail---for failing probation--but can punish you for the 1st offense.
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jones v. barns
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limits--the poor = lwyer makes all the decisions.
exception 1. right to go to trial--or plead guilty 2. either bench trial or jury trial 3. testifying in crt. |
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stickland case
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appealing df= objective unreasonable =
a. omission= failing to do something should have done b. failing not to do something that should have done. exceptions ---when state/crt interferes prevention right to consel. ----constructive interference (lawyer so out of it--like having lawyer at all) ---no lawyer at all. |
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what is needed for arrest warrant.
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--there must be reasonable belief that the suspect is within.
cant use arrest warrant into a search warrant. Payton case. |
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what does welsh stand for
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exigent circumstances is not simply created because it is a serious crime or the state claims it.
this is merely a threshold--- |
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what is the 4 olsen factor
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1. hot pursuit of a fleeing felon--PC that the person being chase is a felon.
2. imminent destruction of evidence--pc 3. prevent suspect from escaping--pc 4. risk of danger to police or people inside the house--pc |
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McArthur and Segura case
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stand for when the cops are asking for search warrant---the crt will bend over backwards to help approve.
and not suppress evid. |
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what is need exigent circumstances
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1. police did not create
2. police is pursuing exigent circumstance in good faith. |
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what is the knock and announce rule.
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----richards
must knock and announce-- time frame(it must be reasonable) that it would take a suspect to get to the door. except--- 1. person dangerous (cop safety) 2. futile 3. destruction of evidence. |
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what does the katz case stand for---
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---justice harlan---
1. first that a person have exhibited an actual (subjective) expectation of privacy and 2. the expectation be one that society is prepared to recognized as "reasonable" phone booth case--- 4th amendment protects people --harlan two steps |
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search under katz
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1. reasonable expectation of privacy
2. objective expectation of privacy (society) |
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what is the oliver test
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privacy
created the bright line rule that if cops are faced with open field ----cops can go in and search the property. |
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what is factor for open field
US v. Dunn case |
1. the proximity of the area
2. the nature of the uses to which the area is put 3. step taken by the resident to protect the area 4. whether the area is included within the enclosed surrounding. |
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what does Riley case stand for
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FAA (is for safety of air way--does not deal w/ privacy)
--the hlding is that if the public can see then the cops can see it. therefore no expectation of privacy. O'connor desent test whether the public actually does it. she concurred in the judgement b/c riley didnt have any evid. that public does it. |
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what does bond case stand for--
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grayhound bus-- manipulation of the luggage overheard
if the public doesnt do it then cops can not do. public--no one expects their luggage to be felt up for drugs. |
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what does Greenwood stand for
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this isnt about the search warrant but what lead up to search warrant.
---found drugs in the garbage. katz test--was there expectation of privacy.--Nope not when it was turned over to the curb. |
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smith v. maryland case stand for
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no expectation of privacy for telephone number given to cops by a third party.
cop asked a phone company to be registered at the company and used it against df. voluntary info. to a third party. = no expectation of privacy |
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knott case stand for
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tracking device is ok if the used to monitor the movement of person in public street.
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karo case stand for
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beeper was in the can---
can follow it Until its in the house once in the home have to stop without the warrant. ----warrant for beepers 1. need to describe the container that it is in 2. and describe where it is going in the house. |
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what is the curtilege test.
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1. 60 yards from the house
2. outside the fence 3. not being used for intimate activities of the home 4. not protected from observation from nearby open field. |
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if miranda is violated cop can still used to impeachment.
----what is the case. |
Mincey v. Arizona
--person shot and was in ICU --cop kept on him asking him questions. |
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when does miranda apply
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1. arrest
2. interrogation 3. other has to know he was cop. |
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what is necessary for a waiver of miranda.
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KIV
1. knowingly 2. Intelligently 3. voluntary. |
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does the fruit of poisoness tree flow from.
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constitutional and not mere miranda violation.
Elstad case----- |
