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159 Cards in this Set

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POINTS TO REMEMBER: The federal Bill of Rights does not apply to the states in and of itself. Most Bill of Rights protections have been "selectively incorporated" through the Fourteenth Amendment Due Process Clause to apply to the states.
POINTS TO REMEMBER: The Supreme Court is not required to apply a new constitutional ruling retroactively or prospectively, but looks on a case-by-case basis at the merits and demerits in each case to determine retroactivity or from what point it will apply.
POINTS TO REMEMBER: A Supreme Court decision construing the 4th or 5th amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.
POINTS TO REMEMBER: Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.
POINTS TO REMEMBER: Indigent defendants in federal and state cases have a right under the 6th amendment to appointed defense counsel at critical stages of the prosecution.
POINTS TO REMEMBER: Indigent defendants cannot receive even a day in jail whether or not their sentence is suspended, if they did not receive or waive their right to counsel.
POINTS TO REMEMBER: Waivers of the right to counsel must be knowing and intelligent but need not follow a formula or script in order to be effective.
POINTS TO REMEMBER: Competent defendants may waive their right to counsel and proceed pro se.
POINTS TO REMEMBER: Defendants have a right to the effective assistance of counsel.
POINTS TO REMEMBER: To establish ineffective assistance of counsel, a defendant must establish ordinarily that counsel committed actual, specific errors.
POINTS TO REMEMBER: Ineffective assistance of counsel is established by using a two-part test that assesses the reasonableness of counsel's performance and whether or not defendant was prejudiced by that performance.
POINTS TO REMEMBER: For a federal habeas corpus petitioner to establish ineffective assistance of counsel arising out of a state conviction after 1996, the state courts must not only have applied the 6th amendment incorrectly or erroneously, but unreasonably as well.
POINTS TO REMEMBER: Where counsel's alleged ineffectiveness is based on a conflict of interest, prejudice does not have to be demonstrated.
POINTS TO REMEMBER: Indigent defendants must receive at government expense the basic tools necessary to assure that they have meaningful access to justice at trial and on appeal.
POINTS TO REMEMBER: The police are required to use a warrant to search unless an exception applies (which is much of the time)
POINTS TO REMEMBER: To search, police officers must establish probable cause, a fair probability, that evidence of a crime is presently at the place to be searched.
What are the 5 ways you can Interpret the Constitution?
1. Constitutional Structure (Federalism and Separation of Powers)

2. History (Intent of the Framers)

3. Precedent

4. Theories of Constitutional Interpretation (Originalist, Living Constitution)

5. Policy/Law
All limitations of the Bill of Rights have been incorporated into the 14th amendment except:
1. 8th Amendment Excessive Bail

2. 5th Amendment Grand Jury.
Is the Bill of Rights a limitation on the power of the states?
No.
What are the Limitations on the Federal Criminal Justice System?
1. Article 1, Section 9: Habeas Corpus not to be suspended & No bills of attainder or ex post facto.

2. Bill of Rights: 1st, 4th, 5th, 6th, and 8th amendments
Does the 14th amendment require a unanimous verdict from the jury?
Apodaca v. Oregon

No: Justice Powell held 6th amendment requires a unanimous verdict, but the 14th amendment does not
Crawford v. Washington overruled Ohio v. Roberts and said what?
Evidence of "testimonial" out-of-court declarations violate the Confrontation Clause, except where the declarant is:
1. unavailable, and
2. has been subject to cross examination
What are the considerations for whether a decision is a new rule or an old rule?
1. Law/Policy: law-should apply to all persons similarly situated; policy- change can include other considerations.

2. Fairness to convicted persons

3. Fairness to state courts and law enforcement

4. Efficiency

*Who benefits from whether it is a new rule or old rule? Generally a defendant benefits if it is the defendant that took the case to the Supreme Court OR it is a defendant who has been convicted and has the case. Those convicted who have exhausted appeals and have filed PCR generally don't get the new rule applied.
The Right to Counsel
In all criminal prosecutions, the accused shall enjoy the right and to have the assistance of counsel for his defense.
Johnson v. Zerbst stated what about the right to counsel and the Sixth Amendment?
The 6th amendment requires court appointed counsel for indigent defendants in federal criminal prosecutions. The rationale for this is that Constitutionally mandated due process is meaningless unless the defendant has a lawyer.
What is the "Due Process of Law" limitation?
Due process may require counsel in some cases.

Consider the TOTALITY OF FACTS in each case.

The Standard is "natural, inherent and fundamental principles of fairness."
What did Gideon v. Wainwright say about due process of law and counsel?
That the right to counsel is "fundamental and essential to a fair trial."

The 14th amendment DOES require a state to provide court appointed counsel for indigent defendants in all criminal cases.
What was the holding of Argersinger v. Hamlin and the right to counsel ?
Absent a waiver, no person may be imprisoned for any offense, unless he was represented by counsel at his trial. The right to counsel fully recognized in 12 of the 13 colonies, so there was a history of the right to counsel. Counsel may be necessary for a fair trial.

So: Argersinger requires counsel whenever the potential penalty includes imprisonment.
What is the standard for waiver of counsel?
Knowing, intelligent act (the waiver) done with sufficient awareness of the relevant circumstances.

The waiver is valid when the trial court informs the accused of: the nature of the charges against him, the right to be counseled regarding the plea, the range of allowable punishments.
Can a state force a defendant to have a lawyer, or is there a constitutional right to represent yourself?
The Constitution forbids a state from forcing a lawyer on a defendant in a criminal case. (14th/6th amendment). The structure of the 6th amendment is that the right to present a defense is a personal right.

Waiver- the relevance of the defendant's competence is that technical knowledge of the law is not relevant. The defendant should be made aware of the dangers and disadvantages of self-representation. Self-representation may be denied if there is disruptive behavior or the request is not timely. However, there are no ineffective assistance of counsel claims.
What is the constitutional standard for competency at trial?
Understanding of the proceedings against you and the ability to assist counsel in your defense.
What is the constitutional standard for competence to waive counsel?
Not the same standard for competency in general. Lack of capacity may undercut a fair trial and the perception of a fair trial may be damaged.
Discuss standby counsel.
McKaskle v. Wiggins: Self-representation and standby counsel

the Pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. Participation by standby counsel should not be allowed to destroy the jury's perception that the defendant is representing himself. He is entitled to a fair chance to present his case in his own way. The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow presentation of what may, at least occasionally, be the best possible defense.
What is the constitutional standard for determining "effectiveness"?
The bare minimum required to satisfy the 6th amendment.

The "benchmark" is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
What is the specific standard for determining counsel effectiveness?
Was counsel's performance deficient, meaning that error were so serious that counsel was not functioning as "counsel".

Did the deficient performance prejudice the defense, and were the errors so serious as to deprive the defendant of a fair trial?
How do you determine if counsel was "deficient?"
1. Standard for attorney performance is:
-reasonably effective assistance
-objective standard
-prevailing professional norms

2. Defendant must identify errors

3. Defense lawyers basic duties are:
-loyalty
-avoid conflicts of interest
-advocate the defendant's cause
-keep defendant informed
-render the trial a reliable adversarial process
What is the standard for judicial review on an ineffective assistance of counsel?
Highly deferential.
-wide range of reasonable assistance
-strong presumption of effectiveness
-judgment tainted by result
-discourage lawyers from taking criminal cases
-dampen ardor and impair independence
-undermine trust relationship
-FINALITY
Does the defendant have the burden of proving ineffective assistance of counsel?
Yes. The burden is on the defendant.
What is the standard for a defendant trying to prove ineffective assistance of counsel?
A reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A reasonable probability that absent the errors, the factfinder would have had a reasonable doubt about guilt [or the death sentence]
How does the court apply the test to determine if defendant had ineffective assistance of counsel?
The court determines if there was prejudice. If prejudice is not shown, then it is unnecessary to determine deficiency of the lawyer.

The lawyer's strategic decisions must be within the range of professional reasonable judgments. Decisions of the lawyer are upheld if reasonable lawyers could disagree.
What does Stickland say about the effective assistance guarantee of the Sixth Amendment?
The purpose of the effective assistance guarantee of the 6th amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.
Do extrinsic factors establish ineffective assistance of counsel?
NO. Extrinsic factors do not establish IAC. There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.

The exceptions to the Stickland rule are:

-complete denial of counsel
-counsel entirely fails to subject prosecution's case to adversarial testing
Florida v. Nixon: Was it wrong that counsel's strategy was the functional equivalent of entering a guilty plea for the defendant?
No. Counsel's decision to focus on the penalty was a reasonable strategy.
Is failure to read a case file of prior offenses deficient representation?
Yes. Relying on the ABA standard,that was a deficiency.
What is the Stickland test for prejudice?
Reasonable probablity that, but for the deficiency, the result would have been different.

Three steps:
1. the social history investigation would have produced powerful evidence.

2. Reasonable probability a competent attorney would have used it.

3. Reasonable probability the sentence would have been different if the jury heard the evidence.
If a court accidentally sentences a defendant to more jail time then allowed by statute, is that deficiency on the lawyers part to not appeal the sentence?
The SC never said, but the increase in sentence was significant enough that the SC reversed because any amount of added jail time is significant.
Waiver/Forfeiture of an issue on appeal
The general rule is that an issue not raised in the district court cannot be raised on appeal and an issue not raised on appeal cannot be raised in a post conviction proceeding.

Claim of ineffective assistance of counsel is not subject to waiver/forfeiture rules.
Is a trial judge required to inquire into the propriety of multiple representation where no party has objected?
Holloway v. Arkansas: Multiple representations do not violate the 6th amendment unless it creates a conflict of interest. The defendant must have an opportunity to show conflict of interest. Failure to provide opportunity to show conflict is a violation of right to counsel. No consideration of whether actual conflict existed.
Police may violate a Miranda by impermissible “interrogation” in three contexts; what are they?
1. First, they may interrogate a person in custody without giving Miranda warning

2. Second, they may interrogate improperly after warnings without obtaining a valid waiver of rights;

3. Third: They may violate the duty to cut off questioning and interrogate in violation of Miranda after the person in custody invokes the right to remain silent.
When do Miranda safeguards come into play?
the Miranda safeguards came into play "whenever a person in custody is subjected to either express questioning or its functional equivalent," noting that the term "interrogation" under Miranda included "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject."
Do routine traffic stops create custody situations?
No.

First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief.

Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police.

In short, the atmosphere surrounding an ordinary traffic stop is substantially less "police dominated" than that surrounding the kinds of interrogation at isue in Miranda itself, and in the subsequent cases in which we have applied Miranda.
Are volunteered statements barred by the 5th amendment?
No. The special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.
When an undercover agent questions a suspect in custody, is such questioning qualify as an interrogation under Miranda?
No. Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda.
What is the standard for determining custody?
The Standard for Determining Custody: A formal arrest or restraint on freedom of movement of the degree associated with a formal arrest

This is an Objective standard. Look at objective circumstances. How would a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action?
The duty to give Miranda warnings arises when?
The duty to give Miranda warnings arises only when police interrogation a person while in custody.

Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.
What does the prosecution have to prove in regards to Miranda?
Whenever a custodial interrogation takes place, the prosecution must prove that the Miranda warnings were given before interrogation occurred.

Warnings may be held to be inadequate if they are phrased so as to provide incomplete or misleading information about a defendant's rights.
What does the prosecution have to prove if a defendant waived his Miranda rights?
Even when the required Miranda warnings are given, the prosecution must prove by a preponderance of the evidence that the suspect:
1. voluntarily;
2. knowingly; and
3. intelligently
waived his Miranda rights.
What does the Fourth Amendment say?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.
What are the threshold questions to ask as to whether a 4th amendment LIMITATION is applicable to the case?
1. Was there a state actor?

2. Was there a search or seizure?
(did the individual have a protected interest?)

3. If the 4th amend. is a limitation, was it violated?

4. If so, is there a remedy?
What questions do you ask to know whether the 4th amendment impose a limitation on a police officer?
1. Only if there is a "search" or a "seizure"

2. What method does the Court use to determine whether there was a search or seizure?
method for defining "Search" and "Seizure"
These terms are defined by identifying the interests of the "people", which are protected by the 4th amendment.
Is a seizure limited to tangible items?
No, it can include things like oral conversations.
Is search limited to trespass?
No, for instance, a spike mass has physical penetration of wall, but it is not a trespass, but use of a spike mass is a search.
What 4th amendment interests were recognized pre-1967?
Property interests
What is the decision that came out of Katz v. U.S. about privacy interests?
Privacy interests are now recognized under the 4th amendment. The Fourth Amendment protects people, not places.
What is the method for defining "protected interests"?
Harlan:

My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement:

1. First, that a person have exhibited an actual, subjective expectation of privacy, and

2. that the expectation be one that society is prepared to recognize as reasonable.

Justice Black did not like this because he did not believes that it was proper to change the meaning of the amendment with the times (living constitution)
In Oliver v. United States, did the SC recognize a privacy interest in open fields?
No. Open fields are not protected because it is not an expectation of privacy that society recognizes as reasonable.
Does one have an expectation of privacy to their home and curtilage?
Yes, bright line rule that there is a privacy interest in one's home and curtilage.
In California v. Greenwood, was it a violation of the 4th amendment when the police went through someones trash on the curb and found evidence of a crime? Was this a violation of "search" under the 4th amendment?
No. The respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.

No real clear answer if there was a reasonable expectation of privacy..the opinion could be read either way.
Is it subjective or objective that you believe there is an expectation of privacy?
Subjective- it is your internal belief.

Therefore, the SC looks at whether there is a reasonable expectation of privacy. (Did you think you had privacy, and was it reasonable to think you had privacy)
Is it subjective or objective that there is a reasonable expectation?
Reasonable is objective, because it would be what the reasonable person believes.

Therefore, the SC looks at whether there is a reasonable expectation of privacy. (Did you think you had privacy, and was it reasonable to think you had privacy)
Why is it not reasonable to think that you have an expectation of privacy to your trash?
Because your trash bag is in a public place. It is available to animals, children, scavengers, shoops, and other members of the public. Basically, you are abandoning the property and the police, therefore, have the right to look through your trash for evidence. Now if the trash is on your property and not on the curb on a public street then that is a different story.
In Illinois v. Caballes, there was a routine traffic stop and the dog sniffed the car for narcotics. Would that dog sniff be a search?
No. Dog sniff reveals only the presence of contraband. Possession of contraband is not a protected privacy interest.

Controlling case is U.S. v. Place. In that case the dog sniff of luggage in a public place is not a search.
In Kyllo v. United States, a defendant was suspected of growing weed in his house so agents used a thermal-imaging device to detect heat coming from the home. Agents scanned his home from a public street. The thermal imagers detected infrared radiation, which is not visible to the naked eye. The scan showed large amounts of heat emanating from the garage. This information was used to obtain a warrant.

Was the use of the thermal-imaging device a "Search"?
YES! This was a search!

Use the Katz test- whether the individual has an expectation of privacy that society [the Court] is prepared to recognize as reasonable.

The court addressed the question of what limits there are upon this power of technology to shrink the realm of guaranteed privacy. Scalia said that sense-enhancing technology that obtains any information regarding the interior of the home that could not have otherwise been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where the technology in question is not in general public use.
What is the 4th amendment constitutional definition of probable cause?
...no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.
What is Carroll v. United States' definition of probable cause?
Facts and circumstances within their knowledge that reasonably trustworthy information would warrant a man of reasonable caution in the belief that....
In Spinelli v. United States, search warrant was issued by a judge pursuant to an affidavit signed by an FBI agent. Evidence was discovered during the execution of this search warrant. Defendant was charged with interstate gambling. The affidavit stated that the officer had reliable information from a credible person that narcotics were stored in a specific place. Was the affidavit constitutionally adequate?
No. In order for an affidavit to be constitutional adequate it must satisfy two prongs of the Aguilar test:

This affidavit was inadequate because:
1. No facts regarding how the informant got his information, and

2. No facts from which magistrate could find that the informant was credible or that his information was reliable.

For an affidavit to be constitutional, but prongs must be satisfied.
What were the problems with the informant's tips in Spinelli v. United States?
1. Veracity of Information (no facts to support)

2. Basis of Informant's Knowledge (No facts to support informant's conclusion)
The Probable Cause decision in Spinelli v. United States:
The judge must be able to find probable cause on the basis of facts in the affidavit because "the officer is engaged in the often competitive enterprise of ferreting out crime."

The conclusion that Spinelli was engaged in bookmaking was drawn by the information, and the conclusion that the information was reliable was drawn by the FBI agent.

Therefore, it did not satisfy the two prongs of the affidavit test:

1. No facts regarding how the informant got his information, and

2. No facts from which magistrate could find that the informant was credible or that his information was reliable.
In United States v. Draper, were the details provided by the informant reliable?
Yes. Corroboration provides reliability.

The agent's observations of the defendant were corroborative of the informant's description.

It satisfied the two prong test:

1. Veracity of Information (unknown)
2. Basis of Informant's Knowledge ((the basis of knowledge was spot on, the amount of detail would likely only be known by someone close to the defendant, there was corroboration of future events)

The Detail Supplied Reliability in this case, even though veracity wasn't shown. This is because a magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.
In Illinois v. Gates there was an anonymous letter sent to police about a couple purchasing drugs in FL and bringing them back to IL. The facts of the informant were close. Does the Spinelli/Aguilar test stand?
Outcome under the Aguilar/Spinelli Rule:

Basis of knowledge: Anonymous informant, so no knowledge as to he or she knew these facts.

Veracity: Crediblity of information, the police had no knowledge of this person's veracity and anonymous informants always flunk this test.

Court decides to go with a TOTALITY OF THE CIRCUMSTANCES approach because Aguilar/Spinelli is too rigid and technical. Strength on one prong should compensate for weakness of another prong. It increases the value of anonymous informants (this is because of the war on drugs and the police were losing too many cases)
When it comes to deference with magistrates and affidavits, how much deference do we give to them?
GREAT deference.
Where does probable cause fall on the certainty scale?

Absolute, Preponderance, No Knowledge
probable cause falls somewhere just below preponderance.
Is probable cause more specific then unreasonable?
Yes.
If there is a warrant, whose burden is it to prove that the warrant is invalid?
The burden is on the defendant to demonstrate the invalidity of the warrant.
Because....
a Search has to be authorized by a judge, and a search is presumed to be valid with a warrant.
IF there is no warrant, who has the burden of proving that the warrant is valid?
Burden is on the government to demonstrate a warrant exception.

There is no presumptive of validity to a search without a warrant.
What does the particularity cause say?
...and particularly describing the place to be searched, and the persons or things to be seized.
What did the SC do in Franks v. Delaware concerning search warrant affidavits?
The SC in Franks v. Delaware concluded that search warrant affidavits are to be treated as presumptively valid, and that to successfully go behind an affidavit, there must be:

1. allegations of deliberate falsehood or of reckless disregard for the truth, and

2. those allegations must be accompanied by an offer of proof. Allegations of negligence or innocent mistake are insufficient.
If the issuing magistrate has a substantial basis for concluding that a search would uncover evidence of wrongdoing, does the 4th amendment require any more?
Nope.

Key words are SUBSTANTIAL BASIS
What is the probable cause test?
Establishing "probable cause" requires a showing of something more than "mere suspicion" but something less than "beyond a reasonable doubt."

More specifically, the SC has concluded that probable cause requires a showing by the government of a "fair probability" on EACH of the points that the prosecution must establish in order for a warrant to issue.
To demonstrate probable cause sufficient to obtain an arrest warrant, what must the government do?
The government must establish a fair probability that a crime has been committed, AND THAT the person to be arrested committed the crime.
To demonstrate probable cause on a search warrant, what must the government establish?
The government must establish a fair probability that the specified items sought are evidence of criminal activity AND THAT those items are presently located at the specified place described in the search warrant application.
What is the standard for issuing probable cause?
In dealing with probable cause, we deal with probabilities. These are not technical, they are the factual and practical considerations of everyday life on which REASONABLE AND PRUDENT MEN, NOT LEGAL TECHNICIANS, ACT.

Therefore, the task of the issuing magistrate is simply to make a PRACTICAL, COMMONSENSE decision whether, given ALL the circumstances set forth in the affidavit before him. there is a FAIR PROBABILITY that contraband or evidence of a crime will be found in a particular place.
United States v. Grubbs- the magistrate issued an anticipatory search warrant, which was not to be executed unless and until the parcel had been received by a person and had been physically taken into the residence.

are anticipatory search warrants categorically a violation of the 4th amendment?
No. The requirements for an anticipatory search warrant are that there is a fair probability that objects sought will be found at a particular place if the TRIGGERING condition occurs and there is probable cause to believe the triggering condition will occur.
United States v. Grubbs- the magistrate issued an anticipatory search warrant, which was not to be executed unless and until the parcel had been received by a person and had been physically taken into the residence.

Does the triggering condition have to be stated on the warrant?
NO. The particularity requirement only requires the place to be searched and the persons or things to be seized.
In Maryland v. Garrison, did it matter that officers had a valid search warrant for 2036 third floor apartment, when that third floor actually had two apartments, and the police searched the wrong apartment? Contraband drugs were found in the defendants apartment and the defendant filed a motion to suppress.

Was the warrant valid?
The warrant did not particularly describe the place to be searched.

But, you judge the warrant on the basis of information available to the officers at the time that they acted. The warrant was facially valid.

Facts learned after the warrant is issued have no bearing on the validity of the warrant.
In Maryland v. Garrison, did it matter that officers had a valid search warrant for 2036 third floor apartment, when that third floor actually had two apartments, and the police searched the wrong apartment? Contraband drugs were found in the defendants apartment and the defendant filed a motion to suppress.

Was the execution of the warrant valid?
The warrant did not authorize a search of this defendant's apartment.

The standard applied to the execution by police is that if they knew or should have known they were going into the wrong apartment, the search would be invalid.

Should have known is an OBJECTIVE standard.

Officers believed that they were in the apartment described by the search warrant. They discontinued the search when they discovered they were in the wrong apartment.
In Maryland v. Garrison, did it matter that officers had a valid search warrant for 2036 third floor apartment, when that third floor actually had two apartments, and the police searched the wrong apartment? Contraband drugs were found in the defendants apartment and the defendant filed a motion to suppress.

Was the seizure of the drugs valid?
The officers were not in a place they were authorized to be when they found the drugs.
Is knock and announce required in the reasonableness requirement of the 4th amendment?
Yes. The intent of the framers at the time the 4th amendment was adopted was that the common law requirement of knock and announce is included in the reasonableness requirement of the 4th amendment.
What are some exigent circumstances that allow police to circumvent the knock and announce requirement?
Some exigent circumstances are that the risk of danger to officials or destruction of evidence.

Officer needs a level of certainty of reasonable suspicion. Probable cause is not required. Reasonable suspicion strikes the appropriate balance between legitimate law enforcement concerns and the individual privacy interests.
Was it a violation of the knock and announce rule when police knocked, didn't hear an answer, and 15-20 seconds later busted down the door?
No. There was no 4th amendment violation. You have to consider the totality of the circumstances. The 4th amendment standard is reasonable suspicion of exigent circumstances, and the amount of time it takes for a resident to get to the door is not the significant fact, it is how long it would take someone to dispose of drugs.
Does the exclusionary rule apply to knock and announce violations?
No.
What is the legal standard for a seizure?
When the officer interferes with your freedom to walk away.
Is seizure a serious intrusion on the sanctity of a person?
Yes.
Is there a different between a stop and an arrest?
Yes
What are the two issues presented in Terry v. Ohio?
Was there a seizure of Terry?

Was there a search of Terry?
When was Terry seized?
When the officer grabbed Terry and spun him around.
What is the 4th amendment limitation on a seizure?
unreasonable seizures are prohibited. Good faith of the officer is not enough.

Use the objective standard: if the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution the belief that the action taken was appropriate.

Also, the warrant procedure has never applied and not practically be applied.
Name 4 levels of certainty, in order
Absolute Certainty

Preponderance

Probable Cause

Reasonable Suspicion

No Knowledge
When did the Officer conduct a search of Terry?
When the officer patted down Terry's outer garments.
What is the limitation on the power to frisk?
The officer is justified in believing that the individual is armed and presently dangerous. (reasonable suspicion)
Why is there a limitation upon a search?
Because it is a severe intrusion upon cherished personal security. It is annoying, frightening, and perhaps humiliating.
Why is the standard for a frisk reasonableness and not probable cause?
Because we have the balance the interests- protection of the officer vs. the limited intrusion of privacy/limited to a pat down for weapons
Does a frisk automatically accompany an investigatory stop?
No. Officer must have reasonable grounds for the frisk. "Particular facts from which he reasonably inferred that the individual was armed and dangerous."
What is the threshold 4th amendment issue?
At what point does the 4th amendment become a limitation?

In Terry, when the officer restrains the person's ability to walk away, it was a physical restraint, meaning it was a limit on Terry's 4th amendment right.
What is the standard for freedom restrained by a show of authority?
Reasonable person would have believe he was not free to leave.

Legal standard: When physical movement is restrained by means of physical force or a show of authority.
What is the limitation on the power to seize?
Limitation on the officer's power to seize: Reasonable, would the facts available to the officer warrant a man of reasonable caution in the belief that the action taken was appropriate?

Probable cause not required: An entire ruberic of police conduct which historically has not been and could not as a practical matter be subjected to the warrant procedure.

Requires specific arguable facts.

An objective standard.
What is the rule on detention?
Detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.
Do officers need a search warrant if they have an arrest warrant?
No. An arrest warrant authorized entry if they have probable cause to believe the person is at home.
Are protective sweeps permissible, or is it a 4th amendment limitation?
The Correct standard is "reasonable suspicion."

A protective sweep by an officer is permitted when the officer has a reasonable belief based on specific and articulable facts that the area swept harbors an individual posing a danger to those on the arrest scene.

This is because an officer is endangered when entering a person's home; Terry v. Ohio rationale applies; balance falls in favor of the officer's safety and officers can take reasonable steps to insure their safety.
Are road-blocks upheld when the purpose is detection of drunk drivers?
Yes
Are road-blocks upheld when the purpose was detection of illegal immigrants?
Yes
Are random stops of vehicles for license/registration check permitted?
No. There is too much potential for abuse of discretion.
Is it ok for cops to road-block small groups of cars, and stop ALL cars in the group, check for license and registration, look for signs of impairment or drugs, and then have a narcotics dog walk around the vehicle?>
No. The roadblock violated the 4th amendment. Individualized suspicion is required. The purpose here was a criminal investigation, not to provide sage highways (BIG distinction)
Was it ok when a roadblock in IL had the purpose of obtaining evidence of a hit and run accident, where the defendant was stopped, was intoxicated, and was arrested?
ROadblock was ok because it was a different purpose then the narcotics search in Edmons v. Indianapolis. The purpose was to request assistance from, not obtain evidence against, persons stopped.
POINTS TO REMEMBER:
Most arrests are permissible without warrants.
POINTS TO REMEMBER:
Defendants have the right to effective assistance of counsel.
what are the focal points for protected 4th amendment interests?
Katz: reasonable expectation of privacy test

Oliver: open fields and curtilage

Greenwood & Bond: conveyance to third parties and public access

Place: canine sniff is sui generis

Knotts and Karo: beepers substitute for visual surveillance

Kyllo: heat in the home
POINTS TO REMEMBER:

The police are required to use a warrant to search unless an exception applies
POINTS TO REMEMBER:

Whether probable cause exists is assessed by considering the totality of the circumstances
POINTS TO REMEMBER:

Probable cause to support a search can only be challenged in a Franks hearnig by showing that erroneous information was included in a supporting affidavit intentionally or recklessly and that the information was necessary to a finding of probable cause.
POINTS TO REMEMBER:

Search warrants must particularly describe the place to be searched and the evidence to be seized.
It is a violation of a person's reasonable expectation of privacy for the police to perform any of these intrusions without complying with 4th amendment requirements:
1. Squeezing luggage to determine its contents when the luggage has been placed in the overhead rack of a bus by a passenger

2. Using a thermal imaging device to determine the amount of heat emanating from the exterior walls of a home;

3. Conduct an electric intrusion that captures the substance of phone conversations, as by using a device affixed to the outside of a public phone booth to record the conversations of the person within the phone booth.

4. Place a tracking beeper in an object to use it to obtain information about the location of that object when the location is inside a person's premises.

5. Enter on to property and perform visual surveillance there when the property constitutes curtilage around a home.
It is NOT a violation of a person's reasonable expectation of privacy for the police to perform any of these intrusions without complying with 4th amendment requirements:
1. Use a dog trained to detect contraband to perform a canine sniff of luggage in a public place or the exterior of an automobile

2. Enter on to property and perform visual surveillance there when the property constitutes the open fields;

3. Obtain the substance of phone conversations from an undercover agent who records those conversations as a trusted participant;

4. Obtain trash bags from a garbage collector, which bags were placed on the curb outside a house by the homeowner, and then search the garbage insideof them;

5. Conduct ariel surveillance of the curtilage surrounding a home at the height of 400 feet, or use an aerial mapping camera to take photographs of the areas surrounding;

5. Place a tracking beeper in an object and using it to obtain information about the location of that object when the location is in the open fields.
POINTS TO REMEMBER:

When the police make a lawful arrest, they are entitled to make a search incident to arrest
POINTS TO REMEMBER:

The search extends to those areas that are within the arrestee's immediate control.
In United States v. Place, when did the officer's control of the bags become a seizure subject to the 4th amendment?
when they took the bags from the defendant in NY.
What is the level of certainty required for a vehicle search at the border?
None. Search is reasonable simply by virtue of the fact that it occurred at the border. There is the right of the sovereign to protect itself.

The search is not unlimited, however, and damage to a vehicle/search of a person/unreasonable delay might be different.
What is the Katz general principle about warrantless searches (& seizures)?
Searches conducted outside of the judicial process, without prior approval by a judge or magistrate [A WARRANT] are per se unreasonable under the 4th amendment- subject only to a few specifically established and well delineated exceptions.
What is the rationale for the plain view exception?
The inconvenience of procuring a warrant.
What is the plain view exception?
When an officer with a prior justification for an intrusion comes across a piece of evidence incriminating the accused he may seize the evidence
In the plain view exception, which items can be seized?
Only items that are subject to seizure such as contraband, fruits or instrumentalities of a crime, and evidence of a crime.
Why should inadvertence not be an element of the plain view exception?
1. constitutional standards should be based on objective standards, not the subjective state of mind of the officer.

2. the warrant's limitation on the scope of the search adequately protects privacy interests

3. plain view rule does not expand the scope of the search and therefore does not result in additional invasion of privacy.
Police moved equipment in Arizona v. Hicks and saw the serial numbers, and then seized the stereos because they were stolen. Was that a violation of the 4th amendment?
Yes. Probable cause is required to justify a search. The Officer did not have probable cause to seize the object prior to seeing the serial numbers.

moving the equipment was a search, and the officer had neither probable cause nor a warrant/exception to conduct the search.

Plain view never justifies a search.
Does the warrant requirement apply to an arrest in a public place?
No. If The officer has probable cause to believe that a crime is taking place, and does not have an arrest warrant, then the warrant requirement would hamper law enforcement.
What are some exceptions to the warrant model?
1. Plain View (Seizure ONLY, not search)- probable cause is required but not a warrant.

2. Arrest in a public place
Can an officer enter into a home and make an arrest without a warrant?
No.
What does an arrest warrant authorize in respect to someone's home?
An arrest warrant authorizes entry into the home of the suspect.
Does an arrest warrant authorize entry into the home of a third person?
No. An arrest warrant does not authorize entry into the home of a third person.
What does the evaluation of any search include?
1. Was the search lawful at its inception?

2. What is the permissible scope of the search?
What is the scope of a search defined by?
The scope of a search is defined by the rationale for allowing the search.
What does the scope of a search incident to an arrest extend to?
The scope of a search incident to arrest extends to areas in the possession of or under the control of the person arrested.

The Search is limited to the area the defendant can research. The rationale for this is that it protects the arresting officers and protects evidence from destruction.
What is the rule in a search incident to a lawful arrest?
When a personal is lawfully arrested, it is automatically reasonable for the officer to search for weapons and evidence of the crime to protect the arresting officer and to secure evidence.
A search limited to a lawful arrest is limited to:
The Person, and
The area within the reach of the arrested person from which he could obtain a weapon or evidence of a crime.
To determine whether something is an unreasonable search or seizure, what does the court look at?
Statutes and common law of the founding era.
Should the 4th amendment mean the same thing in all states?
Yes. We want consistency.
In all cases, can officers search the passenger compartment and any containers within the passenger compartment?
YES!!! In ALL Cases, officers can search the passenger compartment and any containers within the passenger compartment.

This is a bright line rule because we want predictability for officers and all officers know what the rule of law is. Generalization regarding the reach of a person arrested in a vehicle (generally, people who are arrested in a vehicle can reach in the car to obtain a weapon or dispose of evidence)
Would the search of vehicle after it was towed to police station be authorized by the lawful arrest of the passengers?
No. Search of vehicle after it was towed to police station was NOT authorized by the lawful arrest of the passengers
What is the automobile exception?
The automobile exception is one of the oldest exceptions to the warrant requirement. It provides that, when the police have probable cause to believe that an automobile contains the fruits, instrumentalities or evidence of crime, they may search the vehicle without a warrant.

PROBABLE CAUSE is required, warrant not required.
Are motor homes subject to the vehicle exception under the warrant model?
The warrantless search of respondent's motor home did not violate the Fourth Amendment. Privacy in a motor home is different then a car.

When a vehicle is being used on the highways or is capable of such use and is found stationary in a place not regularly used for residential purposes, the two justifications for the vehicle exception come into play.

Bright line rule for vehicles: To distinguish b/w respondent's motor home and an ordinary sedan for purposes of the vehicle exception would require that we apply the exception depending on the size of the vehicle and the quality of its appointments.
IS there a diminished privacy interest in a car?
there is a diminished expectation of privacy in automobile, occupants are readily visible, used for transportation, not repository of personal effects
What is the scope of Vehicle Exception Search- Acevedo Rule?
Officer with probable cause to believe something subject to seizure is in a vehicle, or in a contained in a vehicle, can search any place she could reasonably expect to find the subject of the search.
Exceptions to the Warrant Model:
1. Plain View [seizure only]: probable cause is required but not a warrant.

2. Arrest in a public place: probable cause required but not a warrant

3. Search incident to lawful arrest: neither probable cause or warrant required

4. Vehicle exception: Probable cause required but not a warrant.
What is an exigent circumstance?
Generally speaking, "[e]xigent circumstances are situations where real, immediate and serious consequences will certainly occur if the police officer postpones action to obtain a warrant."
What bears the burden of showing that warrantless action is proper?
The government bears the burden of proving that the warrantless activity was proper.
What are three reasons why the court allows exigent circumstances in a warrantless search?
we will divide exigent circumstances into three broad categories:

(1) imminent destruction of evidence;

(2) a risk of danger to the police or to others; and

(3) the hot pursuit of a fleeing felon, or concern about a suspect's escape.
What are search warrants evaluated by?
a probable cause standard.
Do you still need probable cause in exigent circumstances?
Yes. It is worth remembering that exigent circumstances only relieve the government of the warrant requirement; there still must be probable cause if the subsequent search is to be constitutional. If there is no probable cause, there is no need to determine whether exigent circumstances are present. An emergency does not in and of itself necessarily create probable cause.
What must proceed government action in an emergency?
The exigency (and the probable cause) must precede the governmental action.
Does the seriousness of an offense create an exigent circumstance?

What about danger to a person?
No.

The seriousness of the offense does not itself create exigent circumstances.

However, if a person is in immediate and serious danger (or in need of emergency aid), there is an exigent circumstance that will justify the absence of a warrant.

The Supreme Court has specifically stated that this is an objective test. "The officer's subjective motivation is irrelevant." It is sufficient that he had an "objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury."
What are some exceptions to searches and seizures that can be conducted without a warrant?
Despite the warrant preference, the United States Supreme Court has recognized various "exceptions" when searches and seizures can be conducted without a warrant. Included are the "plain view" exception, see Horton v. California , 496 U.S. 128 (1990), the "search incident to legal arrest" exception, see Chimel v. California, 395 U.S. 752 (1969), the "automobile exception," see California v. Carney, 471 U.S. 386 (1985), and others. See Colorado v. Bertine, 479 U.S. 367 (1987) (inventory exception); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent exception); Camara v. Municipal Court, 387 U.S. 523 (1967).