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73 Cards in this Set
- Front
- Back
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FOURTH AMENDMENT SEARCH & SEIZURE - Applies when
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Search/seizure by a GOVT OFFICIAL
Where D had a REASONABLE EXPECTATION OF PRIVACY |
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FOURTH AMENDMENT SEARCH & SEIZURE - Do you have a reasonable expectation of privacy in your garbage?
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NO
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FOURTH AMENDMENT SEARCH & SEIZURE - Do you have a reasonable expectation of privacy where you are an overnight guest?
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reasonable expectation as to areas where guests can be expected to access
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FOURTH AMENDMENT SEARCH & SEIZURE - Do you have a reasonable expectation of privacy where you conduct your business?
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NOT if they are merely using the premises for business purposes
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FOURTH AMENDMENT SEARCH & SEIZURE: When is a warrant NOT required?
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ESCAPIST Scenarios:
Exigent Circ Search Incident to Arrest Consent Automobile Plain view Inventory Special Needs |
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FOURTH AMENDMENT SEARCH & SEIZURE - Warrant Exception: Exigent Circ
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i)Evanescent Evidence - would dissipate/disappear in time to get warrant (e.g. scrapings under fingernails, blood re: DUI)
ii)Hot Pursuit - may enter a suspect or third party's home into which suspect has fled. Any evidence in plain view is admissible. |
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FOURTH AMENDMENT SEARCH & SEIZURE: - Warrant Exception: Search Incident to Arrest
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Contemporaneous
Within Wingspan *NY - to search containers w/in arrestee's wingspan, must suspect the arrestee is armed Limited Car Search: *Interior of car only *NY: once occupant is out of the car, police cannot search closed containers or bags within the car to look for weapons or evidence of a crime |
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FOURTH AMENDMENT SEARCH & SEIZURE - Warrant Exception: Consent
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Must be voluntary & intelligent
From someone who has actual or apparent authority |
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FOURTH AMENDMENT SEARCH & SEIZURE - Warrant Exception: Automobile
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need probable cause that contraband or evidence of a crime will be found in the vehicle
i)May search the entire vehicle & open any package, luggage, or other containers that may reasonably contain the items for which there was probable cause |
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FOURTH AMENDMENT SEARCH & SEIZURE - Warrant Exception: Plain view
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i)Must have lawful access to the place from which the item can be plainly seen
ii)And lawful access to the item itself iii)And the criminality of the item must be immediately apparent iv)NY: Plain view seizure of obscene material requires prior judicial authorization |
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FOURTH AMENDMENT SEARCH & SEIZURE - Warrant Exception: Special Needs
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i)Random drug testing is allowed for railroad employees following an impact accident, customs agents responsible for drug interdiction, and public school children who participate in any after school activity
a)but not where their primary purpose is to gather criminal evidence (e.g. testing of pregnant women to intimidate them into rehab program) ii)Government employee's desks & files - permitted to investigate work related misconduct iii)Student's effects in public schools - permitted to investigate violations of school rules iv)Border searches - No one has 4th Am. rights with respect to routine searches of persons and effects |
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FOURTH AMENDMENT SEARCH & SEIZURE - Warrant Exception: What is a Terry Stop?
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a brief detention or seizure for the purpose of investigating suspicious conduct
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FOURTH AMENDMENT SEARCH & SEIZURE - Warrant Exception: What is a Terry Frisk?
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pat down of the body & outer clothing for weapons that is justified by an officer's belief that a suspect is armed & dangerous
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FOURTH AMENDMENT SEARCH & SEIZURE - Warrant Exception: When are Terry Stop & Frisks Allowed?
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A Terry Stop or Frisk requires "reasonable suspicion" (< probable cause), i.e. specific & articulable facts that inform an officer's belief that criminal activity is present
ONLY justifiable by a concern for officer safety NOT searching for criminal evidence |
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SEARCH & SEIZURE - Warrant Exception: What may be seized in a Terry Stop or Frisk?
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MBE: weapon or something immediately recognizable as contraband w/o manipulating the object (e.g. crack pipe not bag of coke)
NY: weapon ONLY |
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4TH AM SEARCH & SEIZURE: If a warrant was required, it must comply with the following standards:
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(1) Supported by probable cause
(2) Stated with particularity |
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4TH AM SEARCH & SEIZURE: Warrants - Probable cause means
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requires proof of a fair probability that contraband or evidence of a crime will be found in the area searched
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4TH AM SEARCH & SEIZURE: Warrants - Particularity means
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i)Must specify the place to be searched & items to be seized, i.e. no general warrants (e.g. "the entire apartment for evidence")
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4TH AM SEARCH & SEIZURE: Is hearsay admissible to obtain a warrant?
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YES
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4TH AM SEARCH & SEIZURE: What are the requirements if an informant's tips are used to obtain a warrant?
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i)admissible even if the information is anonymous, as long as the police can corroborate enough of the information such that the magistrate can make a COMMON SENSE PRACTICAL DETERMINATION that probable cause exists
NY - govt must establish the informant's basis of knowledge AND his or her voracity or liability |
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4TH AM SEARCH & SEIZURE: If warrant is defective, what are the consequences?
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EXCLUSIONARY RULE APPLIES
UNLESS (MBE only) POLICE RELY ON A DEFECTIVE WARRANT IN GOOD FAITH *Does not apply if a)affidavit supporting the warrant application is so egregiously lacking in probably cause that no reasonable officer would have relied on it b)warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid c)affidavit relied upon by magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding d)the magistrate who issued the warrant is biased in favor of prosecution (e.g. because of link to compensation) |
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4TH AM SEARCH & SEIZURE: For a search to be valid, the warrant must be properly executed by the police by...
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Compliance w/ terms & limitations
AND Compliance w/ the Knock & Announce Rule |
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4TH AM SEARCH & SEIZURE: Knock & Announce Rule
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i)General Rule: Police must know & announce their presence & purpose before forcibly entering a place to be searched
ii)Exception: the officer reasonably believes that doing so would be a)futile or b)dangerous or c)inhibit the investigation iii) Exclusionary rule does not apply |
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4TH AM SEARCH & SEIZURE: EXCLUSIONARY RULE:
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Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated
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4TH AM SEARCH & SEIZURE: FRUIT OF THE POISONOUS TREE
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INADMISSIBLE unless Prosecutor can show there was a break in the causal link
i)Independent source doctrine ii)Inevitable discovery doctrine (e.g. grid search) iii)Attenuation doctrine - D’s free will has been restored |
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4th AM SEARCH & SEIZURE: The Exclusionary Rule does not apply to
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Grand juries
Civil proceedings Parol Revocation Knock & Announce Rule Violations Efforts to impeach D's statements if he takes the stand |
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4th AM SEARCH & SEIZURE: The Harmless Error Test
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If illegal evidence is admitted, a reulting conviction should be overturned unlessgovt can show beyond a reasonable doubt that the error was harmless
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4th AM SEARCH & SEIZURE: WIRETAPPING REQUIREMENTS
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Screen Telephone Calls Carefully:
i)Suspected persons – warrant must name suspects to be overheard ii)Time - warrant must be for a limited time period iii)Crime – there must be probable cause that a specific crime has been committed iv)Conversations – the warrant must describe with particularity the conversations that can be overheard |
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4th AM SEARCH & SEIZURE: EAVESDROPPING
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If you speak to someone who has agreed to a wiretap or other form of electronic monitoring, you have no 4th Amendment claim b/c you assume the risk that the other party will not keep the conversation private
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When is an arrest warrant needed>
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i)Public place → No warrant needed
ii)Suspect’s home → Warrant needed absent emergency iii)3rd Party’s home → Arrest Warrant + Search Warrant needed |
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4th AM SEARCH & SEIZURE - COMMON ENTERPRISE THEORY:
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In a traffic stop, where a police officer discovers evidence of a crime that suggests a common unlawful enterprise between the drive and his passengers, the office may arrest any or all of them based on the reasonable inference of shared dominion & control over the contraband
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WHEN IS A CONFESSION EXCLUDED UNDER DUE PROCESS?
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if it is the product of POLICE coercion that overbears the suspect’s will
I.E. INVOLUNTARINESS |
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6TH AM RIGHT TO COUNSEL ATTACHES
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WHEN D IS FORMALLY CHARGED (not upon arrest!!!)
Offense specific – only applies to charges filed against, you, not for uncounseled investigation fro other uncharged criminal activity |
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NY’s Indelible Right to Counsel (State Constitution 6th Amendment)
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i)Attaches whenever there is significant judicial activity before the filing of an accusatory instrument such that the defendant may benefit from the presence of counsel
ii)Thus, if a D is taken into custody on a charge and police are aware he is represented by counsel on that charge, they may not question him about any other matter without his attorney present iii)Any waiver of this right must take place with the attorney present |
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MIRANDA WARNINGS ARE:
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i)You have the right to remain silent
ii)Anything you say can & will be used against you in a court of law iii)You have the right to an attorney iv)If you cannot afford one, an attorney will be appointed for you * IMPLIED RIGHTS GROUNDED IN 5TH AM INCRIMINATION CLAUSE |
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5TH AM RIGHT TO REMAIN SILENT
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i)Once invoked, police must scrupulously honor a suspect’s request - cannot badger suspect into talking & must wait a significant period of time before reinitiating questions & must first obtain a valid waiver (below)
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5TH AM RIGHT TO AN ATTORNEY
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i)Once a suspect asks for counsel (i.e. lawyers up), all interrogation must cease unless initiated by suspect
ii)The request must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel iii)Not offense specific Expires 14 days after a suspect is released from custody |
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MIRANDA DOES NOT APPLY TO
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i)Spontaneous Incriminating Statements - not the product of interrogation (e.g. police officer posing as inmate elicits information from other prisoner)
ii)Custodial interrogation prompted by an immediate concern for public safety |
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MIRANDA DOES APPLY TO
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Situations where suspect is INTERROGATED or IN CUSTODY
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A SUSPECT IS INTERROGATED WHEN
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any conduct the police knew or should have known was likely to elicit an incriminating response
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A SUSPECT IS IN CUSTODY WHEN
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the atmosphere, viewed objectively, is characterized by police domination and coercion such that his or her freedom of action is limited in a significant way (e.g. police surround bed at 4 AM while questioning suspect)
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NON-MIRANDIZED INCRIMINATING STATEMENTS ARE ADMISSIBLE TO
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IMPEACH THE D
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MIRANDA: Does the Fruit of the Poisonous Tree Doctrine apply?
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NO
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MIRANDA WAIVER MUST BE
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i)Knowing & Intelligent
ii)Voluntary – not the product of police coercion iii) Proven by prosecution by a preponderance of the evidence. |
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MIRANDA WAIVER: Knowing & Intelligent =
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– the suspect understands the nature of his rights and the consequences of abandoning them
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MIRANDA WAIVER: Does sile/shrugging support a valid Miranda Waiver?
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Until recently, silence or shoulder shrugging would not satisfy this burden.
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MIRANDA WAIVER: NY Rule re: Children
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If the police use deception or concealment to keep a parent away from a child being interrogated, the child’s waiver may be deemed invalid
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LINE-UPS AND SHOW-UPS: Issues
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(1) Due Process: unnecessarily suggestive -> subst. risk of misidentification?
(2) 6th Am right to atty: after formal charge only *NY: if police are aware that you have counsel and you request counsel to be present |
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WHAT MUST BE SHOWN IN AN INDICTMENT (NY)
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indictments must establish all elements of the offense and provide REASONABLE CAUSE to believe that the accused committed the crime in question
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To bind D over for trial & detain him in jail before trial, GOVT NEEDS (standard of proof):
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probable cause
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HOW DOES THE GOVT PROVE PROBABLE CAUSE SUFFICIENT TO HOLD D UNTIL TRIAL?
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(1) Detention Hearing
(2) Magistrate issued warrant (3) Grand Jury Indictment |
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THE FIRST APPEARANCE:
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Soon after arrest, a D must be brought before a magistrate who will
i)Advise him of his rights ii)Set bail (note: decisions re: bail are immediately appealable) iii)Appoint counsel if necessary |
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JURIES: When does a criminal D have a right to a jury?
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MAX SENTENCE > 6 MO
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JURIES: How many jurors are required in a criminal trial? Must their vote be unanimous?
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6 JURORS MIN.
Must be unanimous if 6; if more are used, need not be unanimous NY – requires 12 person juries, although a D may waive this requirement and proceed to verdict with only 11 jurors participating in deliberation and juries must be unanimous always |
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JURIES: CROSS-SECTIONAL REQUIREMENT:
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The pool from which the jurors were drawn must represent a cross-section of the community, but the actual jury need not be diverse.
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JURIES: PEREMPTORY CHALLENGES:
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Cannot be used to exclude prospective jurors on the basis of race or gender.
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CONFRONTING ADVERSE WITNESSES:
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.D’s right to confront adverse witnesses under the Confrontation Clause of the 6th Amendment does not apply where face-to-face confrontation would contravene important public police (e.g. traumatizing a child witness)
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5th AM RIGHT AGAINST SELF-INCRIMINATION: Disallows negative prosecutorial comment on
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either a D’s decision not to testify or the invocation of his right to silence or counsel
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5th AM RIGHT AGAINST SELF-INCRIMINATION: Can be asserted when...
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In any proceeding in which an individual testified under oath
*Note: outside of such a setting, D's statements OR silence may be admissible as a party admission! NY – cannot be asserted in a grand jury proceeding |
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5th AM RIGHT AGAINST SELF-INCRIMINATION: 3 WAYS TO ELIMINAT PRIVILEGE:
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ii)D takes the stand – waiver applies to anything properly within the scope of cross-examination
ii)Prosecutor grants “use & derivative use” immunity *NY – can have transactional immunity which is broader than use & derivative use immunity since it shields witnesses from prosecution for any transaction they testified about in their immunized proceeding iii)SOL has run on underlying crime |
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JUDGES: The right to an unbiased judge means:
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i)Judge has no financial stake in the outcome
ii)Judge has no actual malice toward the D |
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ATTORNEYS: Violations of the right to effective assistance of counsel requires proof that
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i)Counsel’s performance was deficient and
ii)But for the deficiency, the outcome of the trial would have been different (the prejudice requirement) |
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GUILTY PLEAS: Basic Standard
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MUST BE VOLUNTARY & INTELLIGENT.
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GUILTY PLEAS: A judge must address, in open court & on the record:
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i)The nature of the charges, including the required elements of the charged offense
ii)The consequences of the plea |
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A D MAY WITHDRAW A GUILTY PLEA AFTER SENTENCING ONLY IF
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i)The plea is involuntary due to a defect in the plea-taking colloquy
ii)There is a jurisdictional defect iii)The D prevails on a claim of ineffective assistance of counsel iv)The prosecutor fails to fulfill his/her side of the bargain (e.g. agrees to make no sentencing recommendation and then tells judge to impose maximum penalty) |
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8th Am: DEATH PENALTY MAY NOT BE IMPOSED AGAINST D’S:
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i)With mental retardation
ii)Who presently are insane iii)Who were under the age of 18 at the time the relevant offense occurred |
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8th Am: DEATH PENALTY PROHIBITS STATUTES THAT
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creates an automatic category for the imposition of the death penalty
Jurors must be allowed to consider all potentially mitigating evidence |
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JEOPARDY ATTACHES WHEN:
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i)Jury trial → jury is sworn
ii)Bench trial → 1st witness is sworn iii)Guilty plea → court accepts plea unconditionally iv)Civil proceedings → never (e.g. SEC can prosecute for insider trading and the Attorney General may prosecute for the same charge) |
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DOUBLE JEOPARDY PROHIBITS:
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Being charged for the same crime, whether a lesser or greater offense (where 1 of the crimes no element not in the other)
*NY: a D must be charged will all offenses arising from any single transaction unless - different V's - different harms - criminal use & possession |
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SAME SOVEREIGN REQUIREMENT:
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Double jeopardy does not bar subsequent suits in different states, nor between the state & federal government, but does bar suits between a state & its municipalities
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DOUBLE JEOPARDY - 4 EXCEPTIONS:
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i)Hung jury
ii)Mistrial for manifest necessity iii)Successful appeal iv)Breach of the plea agreement |
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DOUBLE JEOPARDY: Sucessful appeal is an excecption UNLESS
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unless the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial
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DOUBLE JEOPARDY: Mistrial for manifest necessity means
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defect found in indictment during trial that could not be cured by amending it
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