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

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/93

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

93 Cards in this Set

  • Front
  • Back
Private Citizens as state actors
There must be a nexus between the state and the private actor. Shown by:
1. Knowledge and acquiecence from the state
2. intention of the private citizen to assist the state.
Note: both must be particularized
Extension of Private action
- Creates state action
- The action must significantly extend the production of knowledge from the POV of the PD.

Rationale: Only exposing more would invade a reasonable expectation of privacy. Looking at what was already exposed would not.
Dunn Factors (4)
- used to determine whether an area is curtilage or an open field.
1) proximity;
2) enclosures;
3) nature of activity (privacy and legality);
4) precautions taken by homeowner.
Conflict of Consent
If there is a conflict between a consenter and the target of the search, then there is no consent.

Requires:
1. Equal (or greater) status by objector
2. The objector must be present
3. The objector must be actively objecting
4th am Consent voluntariness
whether there was police created coercion based on police tactics and personal vulnerabilities. Looks at two main factors

1. Characteristics of the consenter (including but not limited to):
- Age
- Education
- Intelligence
- Intoxication
- Mental Illness
- Lack of experience with the justice system
- Knowledge of the right to refuse
2. Characteristics of the situation:
- # of officers
- Threats by officers
- Offensive/aggressive tone and attitude of officers
- Presence and brandishing of weapons
- Advisement of rights
- Length of detention before asking for consent
- Nature of the request/phrasing Claim by officer that they have a right to do the search
Elements for showing 4th am consent (4)
1. Indication
2. Authority
3. Voluntary
4. Scope
Scope of Consent (4th am)
What a reasonable person would believe the consent allows them to do.

Based on:
1. How request was phrased; and
2. Whether the officer specified what they were looking for.
Requirements of a warrant (4)
1. Issued by a neutral and detached magistrate
2. Based on PC
3. oath of affirmation
4. Describes with particularity the places to be searched and the person or thing to be seized
Arrest Probable cause definition
Facts and circumstances (and reasonable inferences to be drawn therefrom) within the officers knowledge and of which he has reasonably trustworthy information that would "warrant a man of reasonable caution" in the belief that 1) an offenses has been or is being committed; 2) by this person.
Search PC definition
: Facts and circumstances (and reasonable inferences to be drawn therefrom) within the officers knowledge which he has reasonably trustworthy information that would warrant a man of reasonable caution in the belief that the item that is subject to seizure (contraband, etc.) will be found in the place to be searched at the time the officers want to look.
Validity of a UC tip
How good the tip is based on its “basis of knowledge” (i.e. where the information came from), not on the quality of the tipster.
This is determined by:
1. Level of detail
2. Degrees of separation: 1st hand observation is usually necessary, and heresay is usually not good enough.
Veracity of a UC tip
the credibility of the source and/or the reliability of the information.

Source Credibility:
1. Accuracy of past information
2. Reputation of the informant
3. Declaration against interest

Tip Reliability:
1. Outside circumstances or facts corroborating the information
2. Elements of the information provided up to this point’s correctness.
Arrests in public (Watson)
Someone can be arrested in public without a warrant if there is a statute allowing it AND:

1) there is probable cause to believe that they committed a felony; OR
2) The arrestee committed a felony in the presence of the officer (at any time past or present); OR
3) The arrestee commits a misdemeanor in the presence of the officer.
Arrests in the home
1) A warrant (or warrant exception); AND
2) Reason to believe that the subject of the warrant is home  (less than probable cause, and does not have to be reviewed by a magistrate.)
Exigency Factors (4)
1. Officers actual ability to get a warrant: a. Were the officers responsible for the exigency through procrastination, or not following rules. Based on what opportunity they had to go through the process of getting a warrant.
2. Nature of harm at stake
3. How certain is it that the harm will occur?: There must be a fair probability that the harm will occur – about the same as probable cause
4. The seriousness of the crime: Courts allow more leniency for felonies
Nature of harm at stake (Exigency Factors)
a.Physical danger to the public
b.Physical danger to the police
c.Suspect flight
d.Destruction of evidence
i.Not significant for minor crimes (Welsch)
ii.May be enough for narcotic/major crime (Knocking case).
SITA Criteria
1. Valid Arrest
2. Contemporaneous search
3. Probable cause for the arrest (no extra needed for the search)
SITA Wingspan
Action allowed:
The police can only search the “grab area” or “wing span” – the area within the immediate control of the arrestee – of the arrestee at freeze framed moment before the arrest (Chimel). Note: this applies even if they are handcuffed or restrained.
Rationale:
the arrestee may be able to get something in their grab area that could potentially injure the police or the public and therefore they have the right to search that area.
Scope:
Therefore this DOES NOT extend to other rooms in the house where the arrestee is arrested, because it would be impossible for it to be in their wingspan.
Containers:
ANYTHING IN WING SPAN, REGARDLESS OF LOCK.
SITA Protective Sweep
Action Allowed:
1.Police can automatically look in immediately adjoining rooms for confederates, even if they have no reason to believe that they are actually there. Anything found while looking for confederates (in areas that someone could be hiding) is fair game.
2. For searches beyond immediately adjoining rooms the police must have reasonable suspicion that there is another person who poses a threat.
Rationale:
There may be other people in the house that are going to attack the police or that are going to destroy evidence.
Scope:
They can only look in places where a person might actually be hiding AND if they want to search outside of an immediately adjoining room they must have reasonable suspicion.
SITA Person (total info)
Action Allowed:
An officer can do a full search of an arrestee, including any containers in their possession or on their person (Robinson), regardless of the circumstances.
Rationale:
There are dangers to police regarding weapons in every arrest, and therefore police should be allowed to search the person of an arrestee in order to protect officer safety.
Scope:
The officer can search anything in the persons possession at the time of the arrest, as well as anything on their person.
Containers:
Robinson allows officers to search containers on a SITA arrestee regardless of the size, locks, etc. because they could hold weapons or evidence.
SITA Cars
Actions Allowed:
When an officer makes a lawful custodial arrest of a recent car occupant can:
1. Interior search of the car for as long as the arrestee has access to the car.
2.Following the arrest, if there is reason to believe (likely reasonable suspicion, but never said) that there is evidence of the crime of arrest, then they can search the car.
Rationale:
A car occupant may be able to grab a weapon, destroy evidence, or escape.
Scope:
Arrestee access search includes everything but the trunk, including locked containers. The search following the arrest can be for anywhere that the evidence might be found, including containers. However it may be limited to the passenger compartment (i.e. no trunk) because of the wing span rationale behind the basic SITA exception police may need PC to search the trunk.
SITA Searches (types) (4)
1. Wing Span (Chimel)
2. Protective Sweeps (Buie)
3. Defendant’s Person (Robinson)
4. Cars (Belton/Gant)
Hot Pursuit Entry Types (2)
1. Fleeing criminal (hot pursuit)
2. Community Caretaking
Hot Pursuit elements (fleeing criminal)
1. Pursuit must be “immediate and continuous” (welsh)
2. Must have probable cause that the criminal is inside
3. WELSH SUGGESTED THAT IT CAN’T BE MINOR, BUT DOESN’T NECESAARILY NEED TO BE SERIOUS. Crime must be serious
Community Care taking Rule
police have an "objectively reasonable (Brigham v. Stuart/Fisher) basis" for believing that someone inside is in danger (Brighton v. Stuart) or has been injured (mich v. Fisher).
Hot Pursuit Search Criteria (5)
1. Police must have Probable cause that a felony was committed.
2. Entry must be valid (hot pursuit or consent)
3. Is in continuous hot pursuit from crime scene
4. Police must objectively believe the criminal is dangerous: Based on the circumstances including the crime. There is no standard but it is likely not higher than reasonable suspicion.
5. Police must have probable cause to believe that the suspect is in the house and has not been caught.
Scope of Hot Pursuit Search
1. can search for people and weapons.
2. Subjective intent of the searching officer matters (Warden v. Hayden).
3. Time: Can only search until the criminal is actually caught OR it is clear they are not home, anything found after they are apprehended is no good. Evidence found simultaneously with finding of victim is ok.
Vehicle Warrant exception rule
Police can do a thorough (more than a frisk) search of any part of the car if they have probable cause to believe that contains evidence, weapons, or fruits and instrumentalities of the crime (Carroll-Chambers), including the trunk, closed containers, under the seats, upholstery (meaning they can rip up the upholstery), under the seats.

Police can do a frisk of a car, limited to a pat-down in search of weapons during a stop if there is reasonable suspicion that there are weapons inside. This does not include the trunk and must occur during the stop, but unlike Gant it can occur after the arrest. (Long)
Vehicle Warrant exception criteria (2)
1. Probable cause that the car contains evidence, weapons, or fruits and instrumentalities of the crime.
2. Mobility: Any readily mobile mode of transportation that has its own locomotive power, and is not being used exclusively for residence.

- Exigency: There is no need to show that situational exigency exists, as it only applies to the abstract concept that cars are inherently mobile (White).

- Location: Does not have to be in transit. It can be parked (or pulled over) on a public highway, in a stationary place and not being used for residential purposes, or on the private property of another person who is not the target of the search. If it is parked on the person who is the target of the search’s property then you need to get a warrant to get onto the property but not for the car.
Inventory Search Criteria (3)
1. Conducted pursuant to a lawful impound
2. Impound is of a routine nature
3. Search cannot be solely a pretext for a criminal investigation. Mixed motives are ok Bertine).
- There is no certainty threshold, the police do not need articulate a specific reason or need to search the vehicle
- There is no least restrictive alternative requirement
- Don’t need to ask for consent
Inventory Search Discretion (3)
Choice to impound is judged by the police department’s general practices.

1. Made on a good faith basis
2.Based on standard criteria: set forth by the police department, this could be just the custom of the police. The standard criteria does not have to be an all or nothing approach, it only has to provide some guidance for the officers (Fl. V. Wells).
3. Not be motivated solely by furthering a criminal investigation (Bertine).
Inventory Search Scope
- any time after impound, but cannot be an unlimited amount of time.
- Can look anywhere that department policy allows.
- Must maintain structural integrity of the car.
Booking Search Criteria (4)
1.Lawful arrest: Moore standard.
2.Incarceration: Arrestee has to be incarcerated for some (any) amount of time
3. Standard procedures are followed:
4. Subj. intent: can’t be done solely for the purpose of criminal investigation
Booking Search Scope
Any article in arrestee’s possession as guided by department policy.
Booking Search Rationales (4)
1. Deterrence of theft and careless holding by police
2. Deterrence of false claims
3. Prevention of injury to the detainment population and guards
4. Identification of the arrestee
Inventory Search Rationales (3)
1. Prevention of vandalism theft or false claims against the police about the car/property.
2. Determine ownership of an abandoned car
3. Protect the police during storage.
Vehicle exception rationales (2)
1. Mobility: there is a risk that a car could be moved
2. Lesser privacy interest in cars because:
a. Cars are regulated by the government
b. Cars are viewable because they have transparent windows
c. Cars are out in public on public roadways
d. People don’t keep private things in cars
Hot Pursuit Entry Rationale (2)
1. Apprehend suspect
2. Protect police
Note: Evidence destruction is not a search rationale (see Vale, where the court said that being worried that evidence will be destroyed by other members of the family is not enough because police can secure the premises)
Hot Pursuit Entry Rationales (3)
1. Someone could be hurt by fleeing criminal
2. Criminal could escape
3. Loss of evidence may be if it is a drug crime.
Community Care taking rationale (1)
1. It is the police’s job to help someone in need.
General Seizure Rule
When an officer has lawful access to an item that he has probable cause to believe contains evidence contraband drugs, etc. he can seize if:
1. Item is in a public place
2. It is in a private place but the officer has a warrant that specifically lists this item as something to be seized.
3. It is in a private place but the officer has lawful access to that private place through a warrant exception; and Scope of the exception allows him to look where the item turns out to be.
Plain View (3 + Rationale)
Criteria:
1.Lawful vantage point
2. Lawful Access
3.Illegality immediately apparent
Rationale:
If an article is in plain view, then observation or seizure is not an additional privacy invasion.
Seizure reasonableness
Determined by balancing
1. The nature and extent of the intrusion on the individual; against
2. The nature and interest of the government interest
Seizure requirements (Hodari D)
1. The application of physical force (any amount of physical contact is enough);
OR
2. A show of authority by the officer ( judged by whether a reasonable innocent person would feel free to terminate engagement); AND
3. A submission to that authority.
Constructive Arrest
Once the nature of intrusion exceeds the bounds of a Terry stop, it is an arrest, and therefore requires probable cause.
Dunaway Factors:
1. Controlled movement by officers to a law enforcement setting.
2. Duration of the detention
3. Depth of interrogation (i.e. more than the few questions in a Terry stop)
4. Being informed that you are free to go
5. Restraint or potential restraint
Terry Frisk
A quick open hand pat down of out clothing, during a lawful stop to confirm or dispel a reasonable suspicion of criminality.
Criteria:
Reasonable suspicion that the suspect is armed and dangerous.
Terry Stop Rationales (2)
1) A warrant is not required because the on the scene circumstances create exigency.
2) Probable cause is not required because the government interest outweighs the privacy interests.
A) Crime Prevention
B) Crime investigation
Terry Frisk Rationales (2)
1) A warrant is not required because the on the scene circumstances create exigency.
2) Probable cause is not required because the government interest outweighs the privacy interests.
A)Danger to police
B)Danger to the public
Terry Frisk Scope
- An officer can only be looking for weapons, not drugs or evidence.
- The subjective intent is relevant when determining the scope.
Reasonable suspicion (Terry)
Specific and articulable facts, together with reasonable inferences based on the officers training and experience, would lead a person of reasonable caution to suspect that crime is afoot (stop) or that the person is “armed and dangerous” (frisk) . This test is based on the totality of the circumstances.
Reasonable Suspicion Factors (Terry)
1. Suspect Behavior
2. Context (where it happened)
3. Officer's experience
Crime is Afoot Criteria (3)
1. Someone is in the middle of a crime; OR
2. The crime is imminent (while not defined, this probably means that there is a suspicion that the crime is going to happen); OR
3. Completed felonies
Stop v. Arrest Factors (3)
1. Duration: Must be brief. Must be reasonable amount of time.
2. Purpose: Is the officer simply trying to confirm or dispel criminal activity/existence of weapons? Or more?
3. Content: Do the officers engage in investigative techniques (or coercive tactics) that exceed what is necessary to confirm or dispel the original suspicion?
Stop Duration Reasonableness factors
1. Police diligence: Where they acting in a diligent manner to confirm or dispel their suspicion of criminality, that did not unreasonably delay the encounter.
2. Suspects fault in delay: If the initial detention is reasonable, and the time is unreasonable but caused by defendant then that is ok (Montoya v. Hernandez)
Substance of Miranda Warning (4)
1. The right to remain silent
2. Anything said can be used against them in a court of law
3. They have the right to the presence of an attorney
4. If they can’t afford an attorney one will be appointed before questioning.
Custody Test Under Miranda
Would a reasonable person in the suspects position feel arrested? This is an objective totality of the circumstances standard based on the following factors:
1. Location of questioning
2. Age (JDB)
3. Who initiated contact
4. Transportation of the suspect, or require that they appear for questioning.
5. Number of officers involved in interaction
6. Officer communication to the suspect regarding custodial status
7. Officer communication to the suspect about the nature questioning
8. Objective Indicia of restraint
9. Offers to take breaks
10. Officially releasing suspect
11. Offers to allow other people to be present
Miranda Interrogation
1) Direct Questionings
2) Constructive questioning: Any action that, objectively, an officer should have known is reasonably likely to illicit an incriminating response from a suspect.
Miranda Waiver Elements (3)
1. Knowing: The waiver has to be made with awareness of the rights being abandoned through express or inferred evidence
2. Intelligent: The waiver has to be made with awareness of the consequences of abandoning the rights through express or inferred evidence
3. Voluntary: “ The absence of police over reaching(Connely)” Cannot be the result of intimidation, coercion, or ghastly deception. Must be the defendant’s own choice

Timing: Can't be waived before the miranda warning.
Effect of Right to Silence Invocation
police must scrupulously honor the invocation while the defendant is in custody
- have to stop questioning immediately, and can resume only if:
1. Significant time passes (more than 2 hours)
2. They give fresh warnings
3. They question about a different crime
(Crime specific)
Due Process Voluntariness Test
- Totality of the circumstances test to determine whether the police’s tactics overcome the defendants ability to overcome the defendants to make a meaningful choice about speaking (Spano).
- Focused on the tactics used by the police.
- The police must have been responsible for at least one aspect of the coercion
Factors:
1.Suspect Traits
a. Age
b. Education
c. Experience with the justice system
d. Particular vulnerability
e. Presence of counsel or other supportive people
2.Nature of the interaction
a. Length (Ashcroft: 36 hours is too long)
b. Location
c. Number of officers
d. Breaks for food, rest, etc
e. Intensity
f. Use of trickery/deception
g. Use or threat of violence
5th Am Right to Counsel Invocation Criteria
- Must be clear and unambiguous: Test:
Would a reasonable officer in this circumstance understand this statement to be a request for counsels assistance with the interrogation.
1. Must be unequivocal
2. Must mention counsel’s help with INTERROGATION
Officer options after ambiguous invocation
1. Treat it as an invocation
2. Ask clarifying questions
3. Keep questioning
Effect of 5th Am RTC invocation (3)
1. Police must stop questioning immediately
2. Police cannot resume interrogation on ANY CRIME, or try to get the defendant to waive their rights, until 2 weeks have passed or an attorney is present (the attorney must actually be present, not just consulting with attorney)
3. Give fresh warnings

(not crime specific)
6th Am RTC (definition)
During critical stages of a prosecution, the government may not deliberately elicit information from a suspect on any crime for which he has been charged in the absence of a valid waiver.
6th Am RTC Rationale
Maintaining a fair adversarial balance, because once the prosecution has a lawyer so should the suspect
Critical stage criteria (2)
First of the following:
1. Charges are filed
2. 1st appearance in court
Effect of 6th am RTC attachment
(no invoke nec. attaches auto)
Gov cannot deliberately elicit information from accused on the charged crime without a valid waiver. Including:
1. Any court appearance for the crime charged
2. Questioning by uniform officers or UC agents ANYWHERE, ANYTIME.
3.Pre-trial, post-charge, identification procedures that involve a trial like confrontation:
a. Line up
b. Show up: drive by with the victim
6th Am waiver
Must be K/I/V
- Can't waive before they attach
- Waiver of miranda is seen as waiver of 6th.
Exclusionary Rule
Only need "sufficient deterrence"
Will only exclude evidence if:
1) Excluding it would deter police behavior better than ANY other remedy
2) The benefit of excluding evidence outweighs the cost
3) Must significantly enhance deterrence of police misconduct
ER exceptions (7)
1. Proceedings
2. Standing
3. Good Faith
4. Attenuation
5. Independent Source
6. Inevitable Discovery
7. Impeachment
Proceedings Exception
The exclusionary rule only applies to a criminal prosecution.
Does not apply to:
1. Civil Suits
2. Grand Jury Testimony: can be used to indict a suspect but not to convict them.
3. Administrative proceedings: E.g. deportation
4. Parole Hearings
Standing Exception
Test:
standing is only conferred on an individual if the government action directly invaded their constitutional rights (IR approach).
Rationales:
1) Provides sufficient deterrence
2) the costs (letting criminals go) is worse than the benefit of additional protection
Standing Possessory interest
Mere possessory interest in the items found does not give standing to challenge the search that led to the finding of the items. However it does give standing to challenge the seizure.
Standing Car passengers
A car passenger, just by virtue of being an invited guest in a car does not have a privacy interest in the car, and therefore does not have standing to challenge any evidence found in a search of the car.
- However, they do have standing to challenge the stop of the car.
Standing Houseguests
- An overnight houseguest gets standing b/c they are an overnight guest.
- only extends to portions of the house that they have a connection to.
Good Faith Exception
When a police officer is objectively reasonable in relying on a warrant that lacks probable cause, an invalid statute, an outside police agency, or binding precedent, their actions will not violate the constitution.
Leon Exception to GF rule (4)
1. Deliberate/Reckless: Officer knowingly includes false statements or are reckless with the truth in a warrant application
2. Magistrate abandons judicial role: by becoming a known rubber stamper, riding along, etc.
3. When it is entirely unreasonable to believe that PC existed despite approval.
4. Blatant facial deficiency: warrant is so facially deficient that it is unreasonable for PD to believe it is valid.
GF rule Rationale (4)
1) Don't want officer's to second guess magistrates
2) Don't want to reduce incentive for officers to get warrant.
3) There is no deterrence to police conduct here only to magistrate which const. not concerned with.
4) Balance det. effect v. cost
Post Leon GF extensions
Reasonable reliance on:
1) Invalid Statutes
2) Court personnel
3) Outside police agency
4) Binding Precedent
Ok as long as actions were not:
1) intentional,
2) deliberate,
3) reckless, OR
4) part of a systematic pattern of negligence.
Attenuation Rule/Rationale
Rule:
Where there is only a weak causal link between the conduct and the derivision of the evidence the evidence can come in.
Rationale:
If this were allowed in, because the evidence is not really a product of the illegal activity, it would just be punishing the government and not leveling the playing field
Attenuation Factors (3)
1. Purpose and flagrancy of misconduct
2. Passage of time between illegality and discovery of evidence
3. Existence of significant intervening events.
Sequential Miranda Statements Rule
The second statement will be suppressed unless the prosecution can show that the warning could be reasonably be seen as effective from the point of view of the suspect (i.e. did the second warning reasonably convey to the suspect that they had the meaningful choice not to speak?).
Sequential Miranda Statements Factors (6)
1. Completeness and details of before and after interrogation: If there was more detail before then that is worse.
2. Overlapping content: if the two statements are exactly the same this is bad.
3. Timing and setting
4. Continuity of police personell: the same is worse
5. Police approach to second interrogation: are they referencing the first and just asking them to repeat?
6. Evidence of police intention to circumvent Mirande
Independent Source exception (Basic)
Where there is legal police action and illegal police action that discover two different pieces of evidence. The evidence from the lawful police action should come in as long as it was from an independent and lawful channel.
Independent Source Exception (Rediscovery)
Where:
i. Illegal police action finds a piece of evidence.
ii. Illegal police leave it there.
iii. Police officers engaged in lawful behavior that is genuinely independent from the unlawful behavior find item in same place later.

The evidence will come in as long as the state can show the lawful behavior was "genuinely independent"
Genuinely Independent
Must show that:
i. Officers engaged in the lawful channel would have pursued that lawful channel regardless of what happened in the lawful search. (illegal search did not prompt legal one)
ii. The magistrate decision to issue the warrant must be independent of illegality (untouched by illegality).
1. Can’t be mentioned to judge in affidavit or in chambers
2.Can’t be included in magistrates finding of PC
Inevitable Discovery
Evidence discovered by illegal police activity is still admissible if it would have been discovered by an independent lawful channel.
Inevitable Discovery Criteria
Must show that:
1) There was an independent police channel that would have discovered the evidence in the same condition
2) the independent lawful channel was already being pursued

Proved by: demonstrated historical fact capable of ready verification.
Inevitable Discovery Rationale
Exclusion of evidence that would have been discovered lawfull does not add fairness, it only punishes the government.
Impeachment 4th Am
- Ilegally obtained evidence can be used to impeach defendant testimony, but not defendant's witnesses' testimony.
Rationale:
1) The benefit of preventing perjury outweighs the cost of truncating the defendants options
2) Evidence obtained from an illegal search is considered factually reliable.
Impeachment 5th am
- Violation of invocation or absent waiver can be used to impeachment in rebuttal.
Rationale:
The benefit of preventing perjury outweighs the cost of truncating the defendants options
Impeachment 6th Am
Invalid or no waiver, impeachment is ok.
Rationale:
The benefit of preventing perjury outweighs the cost of truncating the defendants options
Impeachment Due Process
Can't be used at all
Rationale:
1) Due Process is the worst const. violation
2) statement is unreliable