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53 Cards in this Set
- Front
- Back
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Search & Seizure 6 steps
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Gov't action
Reasonable expectation privacy Valid Warrant executed Search w/i scope of warrant Good Faith Doctrine Exceptions |
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No Reasonable expectation of Privacy
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Go Away Speedily Or Suffer Plenty Of Pain
Garbage Account records held by bank Sound of your voice Open Fields Style of your handwriting Public airspace Odors Paint scrapings on outside of the car |
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People who have REoP
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Owners of the premises searched
Residents of the premises searched Overnight guests |
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People who do not have REoP & NY distinction
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Passengers in cars who do not own the items searched
Individuals who are using someone else’s premises solely for business purposes NY:passengers in cars do have standing to challenge possession of weapons if the possession is attributed to them |
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3 reqs for valid warrant
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Probable Cause
Particularity Neutral & detached magistrate |
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CL Probable Cause
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a fair probability that contraband or evidence of the crime will be found in the area searched
permissible to use hearsay to have probable cause; can also used info gathered from informant’s tip; if most of the info comes from tip, the police must corroborate enough for the magistrate to make a common sense practice determination that prob cause exists |
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NY Probable Cause distinction
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State demonstrates veracity or reliability of the source of tipster AND
Basis of informants of knowledge If police don’t know the basis of knowledge, they can satisfy it by their own observation confirming the details provided by the tipster |
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Knock & announce rule
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police must knock and announce the place to be searched
UNLESS: officer reasonably believes that doing so would: Be futile; Be Dangerous; Otherwise inhibit investigation |
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Knock & announce burden of proof and admissibility of evidence
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police have burden to prove but evidence seized upon violation of the knock and announce rule is still admissible
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Good Faith Doctrine (gen rule)
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A victim of a search or a confession obtained in violation of federal statutory or constitutional provision can have the product of the illegality excluded from the prosecutor’s case in chief at criminal trial but there is no exclusion at grand jury, parole, or civil proceedings
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Fruit of the poisonous tree can be used:
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grand jury, parole, or civil proceedings
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Good Faith Exception
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If officer reasonably believed that he had a valid warrant and was executing the warrant within the scope then the evidence gathered is admissible
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Good Faith not available when:
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Affidavit that supports warrant application is so egregiously lacking in probable cause that no reasonable officer could have relied on it
Affidavit that supports warrant application Is so egregiously lacking in particularity that no reasonable officer could have relied on it If officer or DA lied to or mislead the magistrate in obtaining the warrant If magistrate is biased |
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NY Good faith doctrine
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None! NY rejects it.
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Exceptions to warrant req
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ESCAPIST
Exigent circs Search incident to arrest Consent Automobile Plain view Inventory Special needs Terry stop & frisk |
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Exception to search incident to lawful arrest exception; CL & NY
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Exception:search must be contemporaneous in time and place with the arrest
CL: okay to search automobile after D is already arrested, cuffed and put in police car provided that D is recent occupant of vehicle NY: once occupant is outside vehicle, police cannot search closed containers or bags inside vehicle |
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Scope of search allowed incident to lawful arrest
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Body: officer can search body w/I wingspan; can search containers on body
Auto – can search interior cabin, including closed (but not locked) containers but not the trunk remember: no warrant needed! |
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Consent reqs
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voluntary (free from police coercion)
& intelligent |
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Rules to search auto w/o warrant
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Need probable cause to believe that contraband or evidence of crime is in vehicle
Probable cause must arise before the search but not before the car is pulled over Can search the interior cabin & and the trunk (b/c there’s prob cause) Can search any package, luggage or container that can reasonably obtain the item you’re searching for |
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Plain View reqs:
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Lawful access to the place from which the item can be plainly seen
Lawful access to the item itself Criminality of item seized needs to be immediately apparent |
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NY Plain view distinction
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plain view seizure of obscene material requires prior judicial authorization
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Req for Terry stop
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reasonable suspicion of criminal conduct
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Police pursuit as seizure
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NY – it IS a seizure
Under 4th: pursuit is only a seizure if pursuit results in phycial application of force or the person being pursued submits to police officer’s authority |
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Plain Feel Doctrine
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Applies in Terry stop
If feel a weapon, can seize. Feels other contraband: CL: can seize if immediately recognizeable NY: cannot seize |
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Terry Stop Auto rule
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If officer believes that individual is dangerous can frisk the individual and frisk the car – interior cabin of car and closed containers. Can seize items other what they’re looking for in plain view
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Harmless Error Rule
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introduction of illegally obtained evidence can still stand if introduction was harmless
Never applied to denying right to counsel |
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A valid wiretapping warrant requires
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Probable cause
Persons (must be named) Conversation (particularly describe conversations to be overheard) Time (strictly limited time periods) |
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Rules of Arrest
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When police take someone into custody against their will for purposes of interrogation or prosecution
Do not need an arrest warrant in a public place Do need an arrest warrant in their home unless there is an exigent circumstance Arrest warrant is not nec if police officer has reasonable belief if felony has been or is being committed and the arrested suspect is committing it If police compel you to come to the station house for questioning or fingerprinting they need probable cause – de facto arrest |
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Miranda comes from:
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self-incrimination clause of 5th amendment
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Miranda required when:
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Custody
Interrogation Testimonial statements |
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Effective waiver of Miranda must be:
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Knowing and Intelligent: Suspect understands the nature of the rights he’s received and the consequences of abandoning them
Voluntary: Free from police coercion |
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NY Parent-child waiver rule
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if Police use deception or concealment to keep parents away from child being interrogated, waiver is likely invalid
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5th Right to Counsel
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Once suspect asserts right to counsel there can be no further interrogation of suspect by police outside presence of counsel unless suspect initiates
Applies to ANY subjects, not only to crime suspect is arrested for – 5th Amendment is not offense specific |
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Right to Silence rule
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Police can come back to question suspect after a period of time of suspect invoking his right to silence
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Exclusionary Rule
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Illegally obtained evidence that is inadmissible in case in chief can be used to impeach D’s testimony on cross examination (only on D, not testimony of 3rd party witnesses)
Physical fruits of unwarranted and un-coerced confession are admissible even thought the confession is not |
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6th amend Right to Counsel
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Refers express guarantee to the right to counsel (vs implied right in Miranda).
Right attaches at formal charging Offense specific |
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NY Indelible right to counsel
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Provides greater protection than 6th amendment
Attaches not only at formal charging but also whenever there’s substantial gov’t involvment in criminal matter before charges are filed such that D may benefit from counsel If D is taken into custody for question on a charge and police are aware that he’s represented by counsel on that charge they may not question him about that charge outside of counsel presence If D is released and later taken into custody on unrelated charge, indelible right to counsel does not automatically attach to that charge If D has an attorney the waiver must take place in presence of attorney to be valid |
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Pre-trial identification right to counsel
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For lineups and show-ups
Not for photo array If right is violated, a subsequent in court ID will not lead to mistrial if prosecutor can show by clear and convincing evidence that ID was based on witness’s observation of D at crime scene |
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NY distinction for pre-trial ID
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right to counsel at lineup before filing of formal charges if D has counsel and police is aware that you have counsel and D has requested counsel
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Due Process and pre-trial ID
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to violated DP, ID procedure needs to be so unnecessarily suggestive and condusive to irreparable mistaken identification so as to make the identification unreliable
Remedy: no in-court ID from witness |
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NY Grand Jury trials
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Indictment must establish all elements of crime
Provide reasonable cause to believe that accused committed crime If there is no grand jury indictment, Felony D can ask for prelim hearing to find if prob cause exists to bind them over to trial Both sides presents evidence at prelim hearing At grand jury proceeding only prosecutor presents evidence At grand jury, no witness has right to Miranda warnings nor do they or D have a right to counsel – different from prelim |
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Right to a jury trial if:
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if max authorized sentence exceeds 6 mos
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Burden of Proof
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Case in chief: Prosecution - beyond a reasonable doubt
Does not include defenses – D has burden of persuasion for affirmative defenses |
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Confrontation clause
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Right of D to confront adverse witnesses
Face to face confrontation not required where allowing it would contravene important public policy concerns |
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Reqs of judge if D pleads guilty
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Nature of the charge
Max authorized sentence and mandatory minimum Tell D that he has right to plead non-guilty and go to trial Tell D by pleading guilty he is waiving trial and goes directly to sentencing Note: if any of the 4 are not satisfied, can withdraw plead |
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NY Transaction Test
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determines what the same offense is: requires that D is charged with all offenses arising from a single transaction unless:
If offenses have substantially different elements Each contains at least one element that the other doesn’t and they vindicate different harms One is for a crim possession and other for crim use Each involved harm to a different victim |
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Double Jeopardy & lesser included offenses
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can’t charge D with greater offense and with lesser offense if it has the same elements as the greater offense – applies either way.
Exception: try D for criminal battery and victim later dies, can they try for homicide |
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double jeopardy & separate sovereigns
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Can charge same offense in different states
Can charge same offense on state and federal level |
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Exceptions to double jeopardy
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Hung jury
Mistrial for manifest necessity Successful appeal Breach of plea bargain by D |
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Taking the 5th in NY
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cannot take it in grand jury
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5th & testimonial privilege
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protects from giving verbal statements; can’t take the 5th when presenting physical evidence, e.g., blood
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5th & prosecution
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Cannot comment on D's taking the 5th
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Taking the 5th on cross
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can't do it! can't use 5th as a sword and a shield
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