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118 Cards in this Set
- Front
- Back
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exclusionary rule
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as a result of an illegal search and seizure or a coerced confession the product of that illegal search or confession will be excluded
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limitations on the exclusionary rule
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exclusion does not apply to
1. grand jury proceedings 2. civil proceedings 3. parole revocation proceedings 4. impeachment 5. violations of the knock and announce rule |
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fruit of the poisonous tree doctrine
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the doctrine excludes not only illegally seized evidence but all evidence derived from illegal police activity
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3 ways gov can break chain of poisonous fruit
the 3 I's |
1. independent source
2. inevitable discovery 3. intervening acts of free will by the D |
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the exclusionary rule and convictions
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1.A conviction will NOT NECESSARILY be overturned because improperly obtained evidence was admitted at trial
2.On appeal a court will apply the harmless error test |
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harmless error test
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a conviction will be upheld if the conviction would have resulted despite the improper evidence
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the 4th amendment protects from..
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illegal search and seizures
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requirement for an arrest warrant
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arrest must be based on probable cause!
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probable cause required for
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non emergency arrest of D inside his home
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when u dont need a warrant
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arrest in public place
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station house detention
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the police need probable cause to arrest u and compel u to come to the police station either for finger printing or interrogation
They can always ask, but if u say no then they need probable cause- compel u |
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terry stop/ investigatory detention
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reasonable suspicion supported by articulable facts of criminal activity
cant be hunch or gut feeling |
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how to determine reasonable suspicion?
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totality of the circumstances
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car stops
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the cops can stop a car if they have at least reasonable suspicion that the law has been violated
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exceptions to the need for reasonable suspicion for car stops
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check point road blocks
as long as they are neutrally applied that’s fine |
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traffic dogs and police stops
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a sniff is not a search
so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries |
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5 steps to search and seizure question
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1. government conduct?
2. reasonable expectation of privacy? Standing? 3. did the police have a valid search warrant 4.if the warrant is invalid do the police have a good faith defense? 5. is warrant invalid and no good faith? do any exceptions apply? |
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when is there gov conduct
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1. publically paid police on or off duty
2. private person at direction of publically paid police |
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when do privately paid police actions consitute gov conduct?
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when they are deputized
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what are the automatic categories of standing? reasonable expectation of privacy?
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1. if u own premises searched
2. if u live on premises searched 3. if u are an overnight guest at premises searched |
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sometimes u have standing if...
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If u own the property seized u have standing only if u have a reasonable expectation of privacy in the item or area searches
if ur drugs are in someone elses pocket u have NO expectation of privacy |
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no expectation of privacy for things held out to the public
9 things |
1. sound of voice
2. style of handwriting 3. paint on car 4. account records held by bank 5. monitoring the location of ur car on public street or in your driveway/GPS ok 6. anything that can be seen across open fields 7. anything that can be seen flying over public air space 8. odors eminating from ur luggage or car 9. garbage set on curb FOR COLLECTION |
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the 2 ps of determining a valid search warrant
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1. probable cause
2. particularity |
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probable cause
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fair probability that contraband or evidence of the crime will be found in the area searched
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particularity
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the warrant must state with particularity the place to be searched and the items to be seized
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warrants and the use of informants
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totality of the circumstances
look at reliability, credibility and bases of knowledge a valid warrant can only be based IN PART on anonymous informant info |
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when is knock and entry NOT requires
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exigent circumstances exist
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exigent circumstances include
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announcing would be dangerous, futile or inhibit the investigation
fear of destruction of evidence Exclusion Does Not Apply... why do officers ever knock- to avoid civil suit |
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officer good faith rule
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officers good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements
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4 exceptions to officers good faith
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1. so lacking in probable cause no O would rely on it
2. so lacking in particularity no O would rely on it 3. O or P lied to or misled Mag when seeking warrant 4. Mag is biased and abandoned neutrality |
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8 exceptions to the warrant requirement
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1. search incident to arrest
2. The Automobile 3. Plaint View 4. Consent 5. Stop and Frisk 6 . Evanescent evidence 7. Hot pursuit 8. Special Needs |
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search incident to arrest
3 requirements |
1)The arrest must be lawful,
2)contemporaneous in time and place, and 3)scope of search limited to wingspan |
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geographical scope/wingspan
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where he can reach to destroy evidence or procure a weapon
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when can the cops search the inside of a car indicent to arrest?
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1. the arestee is unsecure OR
2. the police reaosnably believe evidence of the offense for which the D is being arrested may be found look for a car smelling etc |
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exeption to search of inside of car...
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community caretaker:
justifies a warrantless search when officer faces emergency that threatens the health or security of an individual or the public |
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the automobile exception
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if the cops have probable cause then:
they can search the entire car, including any compartment/trunk. |
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ability to search contianers in the car...
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they can search bags/luggage/container if it could reaosnably contain the item they have probable cause to look for
doesnt matter whos bag or container it is as long as in the car example: if looking for stolen tv can only look in container big enough to house tv |
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when does the probable cause to search a car without a warrant have to arise?
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it can be before or after the car is stopped. cop can stop car and realize ppl in it meet description that gives him probable cause to search the car.
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plain view doctrine
2 requirements |
1. police officer must be legitimately present at the location where he or she does the viewing of the item seized
2. must be immediately apparent that the item is contraband or fruit of a crime |
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Consent
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must be voluntary and intelligent
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what negates consent?
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police saying they have a warrant, that proves later to not exist or be invalid
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3rd party consent
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2 or more ppl have an equal right to use a piece of property either can consent to its warrantless search
if one consents and the other doesnt then no search! |
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terry stop
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reasonable suspicion/totality of circumstances
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terry frisk
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pat down of outer clothes ok to check for weapons to protect officer safety
must have reasonable suspicion- running in opposite direction etc |
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Plain Feel
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if officer reasonably beleives he feels a weapon or contraband it will be admissible as evidence
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what happens if probable cause arises during an investigatory/ terry stop?
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the detention can become an arrest and the officer could then conduct a full search incident to that arrest
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terry stop of a car
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If vehicle is properly stopped for a traffic violation and the O reasonably believes that the driver or passenger may be armed or dangerous the O may
1.Conduct a frisk of the suspected person and 2.May search the vehicle so long as limited to the areas in which a weapon may be placed |
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evanescent evidence
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that might disappear quickly if the police took the time to go get a warrant
examples taking blood sample after DUI scraping drugs out of fingernails by washing hands etc |
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hot pursuit/ fleeing felon
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Police must be within 15 minutes of fleeing felon
if police truly are in hot pursuit they can enter anyones home without a warrant and ANY evidence in PLAIN VIEW will be admissible |
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inventory searches
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Before incarceration of an arrestee, the police may search
1.The arrestees personal belongings and or 2.The arrestees entire vehicle Includes any closed containers within the vehicle |
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public school searches- might be on test!
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1. can drug test for extracurricular activities (can be school dances)
2.Warrantless searches of public school children’s effects such as purses or backpacks is permissible to investigate violations of school rules |
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A school search is reasonable if....
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1.It offers a moderate chance of finding evidence of wrongdoing
2.The measures adopted to carry out the search are reasonably related to the objectives of the search 3.The search is not excessively intrusive |
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Wiretapping and Evesdropping requires a warrant unless...
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unreliable ear and uninvited ear
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unreliable ear
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anyone in society could be working for the cops
everyone in society assumes risk that the person to whom he is speaking will either consent to the gov monitoring the conversation or will be wired and therefore has no basis for a 4th amendment objection as a warrantless search |
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uninvited ear
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if u say it loud enough for people to hear too bad
speaker has no 4th amendment right if she speaks without secrecy |
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do M warnings have to be verbatim?
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no as long as substance is conveyed
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triggers for M warnings
must do BOTH |
custodial interrogation
custody interrogation |
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custody
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not free to leave at time of interrogation
police car, jail, hospital bed, home OBJECTIVE STANDARD |
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when can cops ask u questions without M warnings?
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probation interviews and
routine traffic stops |
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Interrogation
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5th M doctrine:
interrogation defined any conduct where the police knew or should have known they might elicit an incriminating response from the suspect More than just asking questions |
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Spontaneous Statements (look for words like "blurted out")
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M warnings not required before spontaneous statements
they will be admissible! |
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M waiver
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knowing, voluntary and intelligent
totality of the circumstances test |
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what does NOT constitute waiver
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silence or a shoulder shrug
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invoking M rights
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invoking right to silence must be UNAMBIGUOUS!
MUST SPEAK! |
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when can police reinitiate questioning after D invokes M right to silence?
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1. they wait a significant amount of time
2.D is re-mirandized and 3.The questions are limited to a crime that was NOT the subject of the earlier questioning |
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invoking right to counsel
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request for counsel can be invoked only by an UNAMBIGUOUS request
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if D invokes right to counsel...
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all question must cease until
-The accused is given an attorney or -The accused initiates further questioning Note -The police may not even question about a totally unrelated crime as they might be able to do so where the accused merely invokes the right to remain silent |
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when are statements made in violation of Miranda still allowed in court?
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to impeach D on credibility
only if D takes that stand not allowed during prosecutors case in cheif |
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5th amendment right to counsel
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1.When D says I want a lawyer
2.The suspect needs the help of a lawyer with the process of custodial police interrogation and therefore police may not reinitiate the interrogation on ANY TOPIC without lawyer present NOT OFFENSE SPECIFIC |
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6th amendment right to counsel
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1. 6th amendment right IS OFFENSE SPECIFIC
2. attorney only has to be present at interrogation if d is being asks about that attorneys case |
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2 Substantive bases to attack Pre-Trial Identification
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1. denial of right to counsel
2. denial of due process |
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denial of right to counsel for pretrial id
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post charge lineups and showups give rise to right to counsel
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no right to counsel for pretrial id when...
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police go out to show W or V photos
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no right to counsel for...
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1. taking of blood samples
2. taking of hand writing samples 3. pre charge lineups 4. preliminary hearings to determine probable cause to detain 5. brief recess during Ds testimony at trial 6. parole and probation revocation proceedings |
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denial of due process for pre trial id (think tattoo barbara)
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pretrial id techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law
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remedy for denial of due procss for pre trial id ...
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victim or witness will not be allowed to id person in court
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note on denial or counsel or due process for pre trial id issues...
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WILL NOT AUTOMATICALLY get the remedy of excluding the in court id.
The state can defeat suspects claim for that remedy by showing an adequate independent source for that in court id- independent of that bad line up Ample opportunity to observe: P will say yeah bad lineup but the witness had an ample opportunity to observe the D at the time of the crime |
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Bail
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Bail issues are immediately appealable
Preventative detention is constitutional (when someone is a flight risk etc) |
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Grand Juries
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Exclusion does not apply to the conduct of grand juries
Accordingly a grand jury may be compelled to testify based on illegally seized evidence The proceedings of grand juries are secret D has no right to appear and no right to send in witnesses |
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prosecutors duty to disclose exculpatory info...
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failure to disclose evidence whether willful or inadvertent violates the due process clause and may be grounds for reversal of conviction
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Prosecutors failure to disclose exculpatory info will consitute grounds for reversing a conviction if...
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The evidence is favorable to the D AND
Prejudice has resulted meaning there is a reasonable probability the result would have been different had the info been disclosed |
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Trial rights
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1. right to unbiased judge
2. right to jury trial 3. right to counsel 4. right to confront witness |
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right to unbiased judge
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if judge says "next time ur in ct im gonna throw the book at u" not biased!
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when is a judge bias?
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Bias means having a financial interest in the outcome of the case or some actual malice against the defendant
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right to jury
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Q right attaches anytime the d is tried for an offense for which the max authorized sentence exceeds 6 months! Up to or including 6 months no Q right to jury
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how many jury members?
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The minimum number is 6
If the court uses this number verdict must be unanimous There is no Q right to a unanimous 12 juror verdict SC has approved 10-2 and 9-3 |
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cross sectional requirement
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jury pool must reflect fair cross section of community but jury doesnt
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preemptory challenges to juror
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for any reason except race/gender
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right to counsel applies to all
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critical stages of a prosecution, including trial
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inaffective assistance of counsel
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there must be deficient performance by counsel and but for such deficiency the result of the proceeding would have been different
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when can claim for ineffective counsel be made?
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by specifying particular errors of trial counsel.
allegations of poor trial tactics or inexperience are not enough! |
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right to self representation
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D as right to defend himself as long as waiver of trial counsel is knowing and intelligent and he is competent to proceed pro se
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competence to self represent?
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a d can be found mentally competent to stand trial but incompetent to rep himself
judge has discretion |
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right to confront witness
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the absence of face to face confrontation between the D and accuser does not violate 6th amendment when preventing such confrontation serves an important public purpose and the reliability of the witnesses testimony is otherwise assured
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important public purpose and
assuring reliability of testimony... |
Important public purpose
Keeping child in sex abuse case from going in front of accuser 2.Assuring reliability of testimony Have child in separate room then they bring tv into court so the jury can see on tv the mannerisms of child and testimony |
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when can D be removed from court room
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when he is disruptive
he then relinquishes his right to confrontation |
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the SC will not disturb guilty pleas...
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after sentencing
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if d pleads guilty the judge must specifically address the D ON THE RECORD about
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1. The nature of the charge
2. The judge must tell d the maximum authorized penalty and 3. any mandatory minimum penalty 4. the judge must tell him he has a right to not plead guilty and to demand a trial 5.all of this must be on the record |
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4 good bases for withdrawing a guilty plea after sentencing
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1. plea was involuntary/ mistake in ceremony by judge
2. lack of jx 3. ineffective assistance of counsel 4. failure of prosecutor to keep agreed upon plea bargain |
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when is death penalty statute UNQ?
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does not give the d a chance to present mitigating facts and circumstances is UNQ
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can there be an automatic category for death penalty?
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NO that would be UNQ
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can the state limit mitigating factors by statute?
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NO, all relevant mitigating evidence must be admissible or the statute is UNQ
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who can determine the aggravating factors justifying the imposition of the death penalty?
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jury not judge
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when does double jeopardy attach in a jury trial?
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jury is sworn
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when does double jeopardy attach in a bench trial?
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first witness is sworn
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what are the 6 exceptiong permitting retrial?
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1. hung jury
2.mistrials for manifest necessity ( d needs to have surgery etc) 3. retrial after a successful appeal 4.D breaches agreed upon plea bargain (doesnt matter if 10 years later) 5.crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not 6. separate soveriegn |
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if tried for greater offense can u later be tried for lesser offense?
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NO unless a person is tried and convicted on a charge of battery and victim later dies to these injuries the person can also then be prosecuted for murder
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5th amendment privilege against compelled testimony
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can be asserted by anyone in any case asked a question under oath that might incriminate them
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when is 5th amendment privilege against compelled testimony waived?
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when u dont assert the privilege the first time the question is asked
and The privilege must be claimed in civil proceedings to prevent privilege from being waived for a later criminal prosecution |
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when does the 5th privilege against compelled testimony NOT apply?
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when the gov uses physical evidence to incriminate them
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examples of non testimonial evidenc the gov can compel a person to produce
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blood, handwriting, voice and hair samples
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the 5th amendment and prosecutorial conduct
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UNQ for P to make a negative comment on Ds failure to testify or on D chosing to be silent after being given M warnings UNLESS
it is a response to Ds assertion that D was not allowed to explain his side of the story |
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When Prosecution impermissibly comments on a Ds silence the test used is
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the harmless error test
the Ps conduct may not be fatal to an otherwise sound conviction |
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the 5th amendment privilege can be eliminated in 3 ways
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1. under grant of immunity
2. no possible incrimination (if SOL runs on the crime) 3. waiver (D takes stand and waives right with regard to cross examination) |
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Hot Topics
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•Public school searches
•Search incident to arrest When the arrestee was just driving Can search only if unsecured or reasonable belief of evidence for arrest in car Car smells etc •Community caretaker exception Applies to the warrant Under guise of cars |
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Phrases
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oIndependent source
3 Is of breaking the chain Remedy for gov errors with ban lineups |
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totality of circumstances test used for
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Judging reliability if informants
Reasonable suspicion for terry stops Miranda waivers |
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harmless error test used for
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Exclusionary rule
•Improperly admitted evidence at trial Prosecutorial evidence on Ds silence |
