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130 Cards in this Set
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Test
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4th Amendment Applicability
What rights come from the 4th Amendment? |
The right to be:
-free from unreasonable searches and seizures, AND -free from warrants issued without probable cause (PC) -any warrant must particularly describe the scope of the search. |
2 distinct rights
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4th Amendment Applicability
2 schools of thought on interpretting the 4th Amendment |
-Warrant Preference: The use of "AND" means that a search sans a warrant is per se unreasonable
-Reasonableness Preference (modernly accepted view): The clauses are read separately. The reasonableness of a search does not turn on whether there was a warrant. |
Warrant Preference
Reasonableness Preference |
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4th Amendment Applicability
When does the 4th Amendment apply? |
1)The conduct in question is a Governmental Action (not private actors)
2)The conduct must constitute a "search" |
2 requirements must be met
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4th Amendment Applicability
Rule Statement for 4th Amendment applicability |
The 4th Amendment is implicated only when a public actor intrudes into an area deemed one in which a person may reasonably expect privacy.
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4th Amendment Applicability
What can constitute "Government Action" re: 4th Amendment applicability? |
1) an agent of the government (police)
2) private individual acting at the direction of a governmental agent |
Government and private individuals when...
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4th Amendment Applicability
What is a search? |
1) the person has a subjective expectation of privacy
2) society would deem that expectation to be reasonable |
Katz Test
individual and society |
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4th Amendment Applicability
The 4th Amendment protects... |
People not Places
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Supreme Court holding in Katz
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4th Amendment Applicability
4th Amendment and Recording Conversations |
Situation A: Neither person (participating in the conversation) knows they are being recorded. SEARCH per Katz
Situation B: At least one person knows the conversation is being recorded. NO SEARCH per Hoffa |
The bad friend concept
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4th Amendment Applicability
Hoffa/White |
When you disclose info to a third party you are taking on the risk that they may tell another person (or the authorities). Misplaced reliance on loyalty is not entitled to constitutional protection.
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Snitch
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4th Amendment Applicability
Disclosure of Info to a 3rd party |
Besides the situation in Hoffa/White, when you disclose information to a 3rd party (bank, telephone company, trash man, etc) you have no reasonable expectation of privacy .
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Utilities
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4th Amendment Applicability
What is not protected by the 4th Amendment? |
voice exemplars
handwriting fingerprints |
external physical characteristics
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4th Amendment Applicability
Expectation of Privacy (EOP) in the Home |
The court has drawn a bright line at the home. The protection "emanating" from the home extends to the curtilage, and lessens from there.
-Oliver: open fields are not subject to the protections provided to the home -Riley/Ciraolo: naked-eye observation from a helicopter/aircraft is okay |
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4th Amendment Applicability
Factors when Evaluating a [possible search of the Curtilage |
Where the police:
1) legally allowed to be where they were (IE obeying FAA guidelines) 2) observed with the naked eye |
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4th Amendment Applicability
Sensory enhancing devices |
Where the device merely enhances sensory perception and facilitates surveillance that otherwise would be possible with the enhancement, there is no search.
Includes: -flashlight -aerial camera -photographic or video recording -drug-detection dog **BUT see Kyllo |
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4th Amendment Applicability
Electronic Tracking Devices |
Situation A: when you monitor an object on public roads there is no search because the movements could have been observed by the naked eye. NO SEARCH per Knotts
Situation B: continued monitoring after the object is taken into a home is a search because the beeper revealed information that could not have been obtained through unaided surveillance. SEARCH per Karo |
Beepers
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4th Amendment Applicability
Kyllo |
When the police use a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and presumptively unreasonable without a warrant.
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MJ grow lights
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4th Amendment Applicability
Approach for "Search" problems |
1) Privacy Expectations of the person (Katz)
2) The place observed 3) The vantage point of the police |
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Requirements of 4th Amendment
Basic Premise |
The police must have justification (or cause) before they conduct a search or seizure
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Requirements of 4th Amendment
When must the justification exist |
The Probable Cause (PC)/Reasonable Suspicion (RS)/etc. MUST exist before the serach.
The search cannot be "healed" when they actually find something after the fact |
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Requirements of 4th Amendment
What level of "cause" is required? |
There is a balancing test, you weigh "effective law enforcement" against "individual liberty"
Probable Cause (most protective of individual liberty) is on one end of the scale, and Reasonable Suspicion is on the other end of the scale (least protective of individual liberty) |
Balancing Test
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Requirements of 4th Amendment
Level of Cause for Full Scale Intrusions |
Probable Cause.
This can be with or without a warrant |
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Requirements of 4th Amendment
What is PC? |
Information that would warrant a reasonable person to conclude that the individual in question has committed a crime or that specific items relating to criminal activity will be found at the particular place.
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Requirements of 4th Amendment
Reliability of Information when determining PC |
Gates Test: Totality of the Circumstances (TOC).
This "replaced" the Aguilar/Spinelli Test. (IE, you can still use the Aguilar/Spinelli test, but it is not dispositive) |
Gates
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Requirements of 4th Amendment
Totality of Circumstances Test |
Look to the overall relability of the tip on a sliding scale basis.
IE, if you have an anonomous tip (no ability to determine credibility), you can make up for it with a very strong showing that basis for the information is eye-witness, or any other showing of reliability. |
Gates Test
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Requirements of 4th Amendment
Aguilar/Spinelli Test |
2-prong test:
1) Credibility of the informant (why should I believe you?) AND 2) Basis of the informant's knowledge (how do you know this?) |
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Requirements of 4th Amendment
Officer Motive |
Officer Motive is not important. If there was valid PC, the court does not want to go "digging into the depths of the police officer's mind"
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Requirements of 4th Amendment
Terry Stop/Frisk |
If an officer has reasonable suspicion that the individual may be involved in a crime, he may stop them
If he has reasonable suspicion that the person may be armed and dangerous, he may frisk the, |
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Requirements of 4th Amendment
What is Reasonable Suspicion? |
It is much less than preponderance of hte evidence, but more than a suspicion or hunch.
Absent some indication of reliability, an anonomous tip will not support a Terry stop Flight in a high crime area is enough for a Terry Stop |
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Requirements of 4th Amendment
What is a Stop/Seizure (per the 4th amendment)? |
When an officer, by means of physical force or show of authority, has in some way restrained the liberty of the subject.
Thus, a stop is when a resonable person would have believed that he was not free to leave. The Courts look to all the circumstances surrounding the encounter to determine if a seizure has occurred. |
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Requirements of 4th Amendment
Circumstances which would lead a reasonabel person to believe they were not free to leave |
-threatening presence of police officers
-display of a weapon by officer -physical touching of the person by the officer -language or tone of voice indicating compliance with officer is required. -actual advising the person they can refuse to comply |
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Requirements of 4th Amendment
When there is no Seizure |
-Foot pursuit
-Passenger of bus -Usual Questioning accompanying Vehicluar stops |
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Requirements of 4th Amendment
Where there is a seizure |
-Vehicle stops (must have at least RS to believe a traffic violation has occurred)
-Usual Questioning accompanying Vehicluar stops |
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Requirements of the 4th Amendment
When does a stop turn into a full-scale arrest, thus triggering the PC requirement? |
FL v. Royer: The RS stop must be temporary and last no longer than necesary. Also, the investigatory means used should be the least intrusive means available to dispel the officers suspicion in a short period of time
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Temporary, short, least intrusive means
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Requirements of the 4th Amendment
Bright-Line Rule for determining when a Stop becomes an arrest |
There is no bright line rule.
The Courts weigh the degree of intrusion and the amount of force used on the subject |
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Requirements of the 4th Amendment
Vehicular Terry Stops |
Police can stop the car if they have RS the motorist is violating the law.
-This includes -ordering the passengers out of the car -drug dog sniffing the outside of the car (if getting the dog to scene does not unreasonably prolong the stop If the officer has RS any passenger is armed and dangerous, he can frisk or do a limited search of the passenger compartment |
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Requirements of the 4th Amendment
Terry Stops and home sweeps |
An officer can do a limited protective sweep of a home where an arrest is being made when the officer has RS that the area harbors a danger
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What is a warrant
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A judicial authorization for police action, either to search a particular place, or to arrest a particular person.
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4th Amendment and Warrants
Why a Warrant? |
By requiring judicial approval prior to the search/arrest, the individual is protected against unilateral actions of a overzealous police officer.
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4th Amendment and Warrants
Preference for Warrants |
The Court has expressed a preference for warrants, but they have carved out numerous exceptions (based on either the impracticability of getting a warrant in exigent circumstances, OR a dimished expectation of privacy)
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4th Amendment and Warrants
A valid warrant requires... |
1) Issued by a nuetral judge
2) Adequate showing of PC supported by affidavit 3) Particular description of the item/place to be searched, or the person to be arrested. |
3 things are required
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4th Amendment and Warrants
Knock and Announce |
Knock, wait a reasonable period of time (wait time is determined by how long it would take the occupants to dispose of the evidence sought)
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4th Amendment and Warrants
No Knock |
If the police have RS there is a threat of violence or escape a "no-knock" warrant may be justified.
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4th Amendment and Warrants
Violation of the Knock and Announce |
A violation of the knock and announce rule does not trigger exclusion of the evidence found per the search warrant
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4th Amendment and Warrants
Policy behind knock and announce |
Property damage and the Individuals personal decency is weighed against Police's interest in not having evidence destroyed, people escaping
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4th Amendment and Warrants
Warrantless Arrest |
You can arrest in a public place with PC.
Even if there was time to get a warrant, none is needed You must have a warrant to arrest in a home |
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4th Amendment and Warrants
Home Arrest |
A warrant is needed to enter and effectuate a non-exigent arrest in the subjects home.
*Doorway/Porch is not considered "in home" for these purposes |
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4th Amendment and Warrants
Arrest Warrant |
Needed to arrest suspect in his own home.
Arrest warrant gives the police authority to enter the home (if they have reason to believe he is there) and search for the person in their home. If arresting in a 3rd parties home, must have a search warrant to enter and search for the suspect. |
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Exceptions to the Warrant Requirement that Require PC
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1) Exigent Circumstances
2) Seach Incident to Arrest 3) Automobile and Container Search |
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Exceptions to the Warrant Requirement that Require RS
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1) Terry Stop
2) Investigative Detentions |
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Exceptions to the Warrant Requirement that Require No Justification
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1) Consent
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Exceptions to the Warrant Requirement that Require PC
Exigent Circumstances |
Hot Pursuit
Requirements: 1) the circumstances require urgency, making resort to a warrant process impracticable and risky, AND 2) there is PC |
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Exceptions to the Warrant Requirement that Require PC
Search Incident to Arrest |
Requirements
1) Arrest is lawful (based on PC or arrest warrant) 2) Arrest must procede the search (the arrest must justify the search, not the other way around. But if it is just a formailty that the arrest is delayed until after the search, that can be okay) 3) Scope is limited to arrestee's person, their "grabable" space (you can seize and open containers) |
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Exceptions to the Warrant Requirement that Require PC
Belton |
Chimel wing-span is extended to include the entire passenger compartment and open any containers.
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Exceptions to the Warrant Requirement that Require PC
Thornton |
Belton search can be done even if the person was stopped after exiting the vehicle
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Exceptions to the Warrant Requirement that Require PC
Search Incident to Citation |
If Officer has choice, arrest or citation, and they choose citation, they cannot then perform a search, per Knowles
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Exceptions to the Warrant Requirement that Require PC
Car exception extended |
-Mobile homes (if not affixed to ground)
-Boats -Airplanes |
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Exceptions to the Warrant Requirement that Require PC
Acevedo |
Police amy search an automobile and any containers (including passengers property) within it when they PC to believe contraband or evidence of crime is present anywhere inside.
The only limitation on the scope of the search is size (drugs v. aliens) |
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Exceptions to the Warrant Requirement that Require RS
Stop and Frisk |
Terry Stops do not require a warrant
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Exceptions to the Warrant Requirement that Require no Justification
Consent |
You can waive your consitutional rights
For 4th amendment waivers you only need the waiver to be voluntary (no coercion) Advising that the subject has the right to refuse consent is a strong factor in showing it was voluntary |
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Exceptions to the Warrant Requirement that Require no Justification
Who can Consent? |
By the person whose property is being searched, or by a third party who shares the property.
The scope is limited to the consent given. |
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Exceptions to the Warrant Requirement that Require no Justification
What if one consents and one refuses? |
As long as one objects, there is no consent.
**TIP: you may be able to get PC from the consenting spouse |
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Plain View Doctrine
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The plain view doctrine permites an officer to make a warrantless seizure of incriminating items that she comes upon while otherwise engaged in a lawful arrest, entry, or search.
This does not permit a search, only a seizure. |
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Policy behind plain view doctrine
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The officer is there lawfully, once the item has been spotted, it would be a needless inconvenience to go get a warrant because the item has already been discovered.
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Requirements for Plain View Doctrine
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1) Officers original intrusion is lawful
2) The officer is within the scope of that intrusion 3) It is immediately apparent that the item is contraband or evidence of a crime |
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When the plain view doctrine does not apply
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THere must be a "lawful intrusion", so the police walking by a window will not allow them to enter and seize the contraband. The plain view doctrine is triggered only after the officers have lawfully intruded, it DOES NOT provide justification for the entry.
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Exclusionary Rule
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The exclusionary rule requires suppression of evidence obtained in violation of the defendant's constitutional rights.
This ensures police compliance with the constitution |
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The Exclusionary Rule
Fruit of the Poisonous Tree (FoPT) |
You cannot use the tainted evidence, or anything else that comes from the tainted evidence against the person whose rights were violated.
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Fruit of the Poisonous Tree
Wong Sun |
WHere the secondary evidence was discovered through exploitation of the initial illegality, it must be suppressed.
Where the secondary evidence is obtained by means sufficiently removed from the initial illegailty, it is admissible |
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Fruit of the Poisonous Tree
Has the taint been purged? |
Factors the Court looks at when determining whether the taint has been purged:
1) time period between the illegality and the acquisition of the secondary evidence 2) occurrance of intervening events (more acts of "free-will" more likely it is attentuated) 3) flagrancy of the initial illegality |
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Fruit of the Poisonous Tree
Independant Source |
If the secondary evidence was obtained through an independant source, not solely by by exploiting the original illegality, the evidence will not be suppressed.
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Fruit of the Poisonous Tree
Inevitable Discovery |
Even if the evidence in question is found to have been FoPT, suppression can be avoided if the prosecution establishes that the evidence would have ultimately been discovered anyway by lawful means.
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Nix v. Williams
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Limitations on the Exclusionary Rule
Standing |
Only those who are actual victims of the alleged violation have "standing" to challenge it.
This prevents A from complaining that B's rights were violated. |
Rakas
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Limitations on the Exclusionary Rule
Rakas |
Property rights and privacy rights are not the same.
There really is no standing doctrine anymore, it has merged into the 4th amendment doctrine (was this particular defendant's reasonable expectation of privacy intruded on?) The passengers had no property interest in the car, and therefore had no expectation of privacy |
stolen car
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Limitations on the Exclusionary Rule
Rowlings |
Even though ownership interest is asserted, if the defendant has no reasonable expectation of privacy in the PLACE searched, then they cannot challenge the violation.
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drugs in purse
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Limitations on the Exclusionary Rule
Olson |
Overnight quests have a reasonable expectation of privacy
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Overnight guest
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Limitations on the Exclusionary Rule
Carter |
No expectation of privacy when:
1) no prior connection to the apartment 2) no overnight use 3) transaction was unlawful 4) only a commericial relationship |
Cocaine
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Muniz
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Routine booking questions are not covered by the 5th amendment.
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Dionisi
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Grand Jury subpoena is not an unreasonable seizure unde rthe 4th amendment
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Mandujano
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In a grand jury, yuo msut either testify truthfully or invoke your 5th amendment privilege.
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Immunity
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2 types:
1) Transactional Immunity. This gives you immunity for every even stemming from the transaction. Very broad 2) Use and Derivitive use Immunity. You cannot use the testimony to get to another source. |
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Exclusionary Rule and other proceedings
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Does not apply to grand jury or habeas corpus actions or civil actions
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The Exclusionary Rule
The Good Faith Exception |
The reason for the exclusionary rule is to deter constitutional violations.
Evidence should not be excluded when the officers make reasonable mistakes re the legality of their warrants. |
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The Good Faith Exception
Leon |
The warrant was obtained without an adequate showing of PC, however, the warrant appeared to be valid on it's face and the police officers relied upon the warrant in their search.
There is no way to deter "good faith" error, so what's the point of excluding the evidence. |
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The Good Faith Exception
Sheppard |
The search warrant accidently said "drugs" instead of "murder weapon".
The evidence was not excluded. |
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The Good Faith Exception
Failure to specifiy |
You can not take advantage of the good faith exception if you leave the description blank
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The Good Faith Exception
When you cannot use it |
1) where the police mislead (either deliberatley or in reckless disregard of the truth) the judge in their application for the warrant
2) the warrant was obviously invalid that no officer could have reasonably relied on it 3) the judge has abandoned his nuetral and detached posture |
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Impeachment Exception
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You can use illegally obtained evidence for impeachment purposes
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The Voluntariness Standard
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A statement obtained by police that was not eh product of voluntary choice by the suspect could not be admitted at trial.
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The Voluntariness Standard
Why must statements be voluntary? |
1) coerced confessions are unreliable
2) we don't like the methods used to get the confessions - Was the police behavior such that they overcame the suspect's will to resist? |
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The Voluntariness Standard
Was the suspect's will overcome? |
Apply a TOC test based on these factors:
-suspect's peculiar characteristics and vulnerabilities -age -level of education -mental stability -state of sobriety -familiarilty with the CJ process -manner in which the interview was conducted -length of detention -duration and intensity of questioning -use of trickery, deception, threats, promises of leniancy |
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The Voluntariness Standard
Coercive Police conduct |
Coercive police conduct is a necesary predicate to a finding that a sonfession is not voluntary within the meaning of due process
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The Voluntariness Standard
Suspects mental condition |
Suppression is only appropriate where it can be demonstrated that the police exploited that condition by mean of coercion, and the testimony resulted from that exploitation.
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The Voluntariness Standard
To challenge a confession |
Show that:
1) the police subjected the suspect to coercive behavior 2) the conduct was sufficient to overcome the will of the suspect, thus inducing an involuntary statement |
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Miranda
6th Amendment |
For a brief period the court used to deal the 6th amendment to exclude confessions
Escobedo stated that a violation of the 6th amendment occurs when: 1) When the investigation is focused on a specific person, 2) when the person asks for a lawyer and been denied, 3) and they are not advised of their rights. Escobedo is not good law anymore |
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Miranda
Miranda and the 5th Amendment |
The Court got it right and started excluding confessions based on the 5th Amendment priviledge against compelled self incrimination
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Miranda
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Must be given PRIOR to an interrogation if the suspect is in custody.
If he requests an attorney, questioning must cease immediatly. |
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Miranda
Policy |
There is a balance between solving the crime and protecting individual rights.
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Miranda
Key Elements |
custody
interrogation waiver |
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Miranda
When does a miranda violation occur? |
The violation occurs only when they seek to introduce the statement at the criminal trial.
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Miranda
Custody |
Place is not dispositive, you can be in custody in your house, but not in the police station, or visa versa.
WHen there is no formal arrest, the determinitice question is whether a reaosnable person (given the TOC) would have felt at libery to terminate the interrogation and leave. |
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Miranda
Interrogation |
Formal questioning or its functional equivalent
-any conduct which is designed to get a response. |
Innis
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Miranda
2 things required? |
Custody
Interrogation |
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Miranda
Prison Informants |
There must an obvious presence of police to trigger the "interrogation" requirement
The distinction between prison gray and police blue |
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Miranda
Muniz |
Routine Booking questions are not Interrogation
Responses to scripted field sobriety tests are not Interrogation But questions which are designed to illicite incriminating information do trigger Miranda |
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Miranda
Waiver |
If a statement is obtained during a custodial interrogation, the state must prove that the suspect knowingly, intelligently, and voluntarily waived his priviledge against self-incrimination and right to counsel.
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Miranda
No Valid Waiver |
-Silence
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Miranda
Knowing and Intelligent |
State must show:
1) the suspect understood that he did not have to talk to the police 2) he appreciated the consequences of speaking to the police **Burbine, you do not have to be informed that an attorney is waiting to speak to you. |
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Miranda
Waiver After Right to silence has been invoked |
State must show:
1) right to silence (once invoked) was scrupulously honored 2) a knowing, intelligent, and voluntary waiver was made |
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Miranda
Waiver after Right to counsel has been invoked |
Suspect can waive it IF the suspect HIMSELF initiates further communication with the police.
If the state wants to get the statement in they must show: 1) that counsel was made available, OR 2) the suspect himself initiated further communication, AND 3) a knowing, intelligent, and voluntary waiver occurred |
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Miranda
Invoking the Right to COunsel |
"Maybe I should get a lawyer" was not a valid invocation in the right.
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Miranda
Offense Specific? |
NO, so if you invoke your Miranda rights in regard to one crime, you can be questioned about another crime.
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Miranda
Initiation of further communication |
"Well, what is going to happen to me now" was an initiation after the police said, you know that you have requested an attorney
But noraml requests for water, telephone, are not initiation of further contact. |
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Miranda
Right to Counsel |
It is the right to have counsel present at the interrogation
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Limitations on the scope of the Miranda Exclusionary Rule
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You cannot use them in case in chief, but you can use them to impeach.
Miranda is not a shield against perjury |
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Miranda
Public Safety Exception |
Where is the gun?
Where the officer's questions are reasonably prompted by a concern for public safety, he may engage in noncoercive questioning without complying with Miranda's dictates |
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Fruit of the Poisoness Tree and Miranda
Elstad |
FoPT does not apply to Miranda
The original statements made because of the Miranda violation would be kept out, but any gained from the statements, etc. would be allowed in |
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Fruit of the Poisoness Tree and Miranda
Question First |
This strategy will not be supported, and everything gained from this strategy will not be allowed in.
The court focused on the deliberateness of the police |
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Fruit of the Poisoness Tree and Miranda
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While a statement obtained in violation of Miranda is not itself admissible, evidence (testimonial as well as tangible) derived from it is admissible
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What is left of Miranda
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A statement obtained in violation of Miranda may not be admitted except in the following situations:
1) the interrogation falls within the public safety exception 2) the response is used soley to impeach the defendant at trial Evidence derived from the statement will be admissible as long as thte statement was not coerced |
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6th Amendment Right to Counsel
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Guarentees an accused the assistance of counsel for his defense
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6th Amendment Right to Counsel
Massiah |
Once judicial proceedings have commenced, government efforts to "deliberately elicit" statemetns from him inteh absence of his attorney violate the 6th amendment
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Both men pled were indicted, retained counsel, plead not guilty, released on bail.
Police wire one co-defendant |
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6th Amendment Right to Counsel
When does it attach? |
Once judicial proceedings have been initiated
-Arraignment - |
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6th Amendment Right to Counsel
Massiah Doctrine |
Requirements
1) the government deliberately elicited incriminating statements from the accused in the absence of counsel 2) that this occurred after the initiation of judicial proceedings |
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6th Amendment Right to Counsel
Deliberately Elicit |
Be careful, this is not exactely the same as "functional equivalent of questioning"
THe emphasis here is the deliberate or intentional nature of the police effort to gain information This also looks to the state of mind of the officer (as opposed to the suspects susectabilities) |
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6th Amendment Right to Counsel
Passive Listener |
An informant who is not a passive listener violates the 6th amendment right.
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6th Amendment Right to Counsel
When does the Massiah Doctrine attact? |
At the initiation of judicial proceedings
-indictment -information -arraignment -preliminary hearing |
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Offense SPecific
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The 6th Amendment is offense specific , it cannot be invoked once for all future prosecutions.
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Waiver of the 6th amendment right to counsel
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A waiver of the Miranda right to counsel can suffice
Basically, police initiated interrogations are never cool (here or inteh 5th amendment setting) |
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Statements obtained in violation of the 6th Amendment
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They cannot be used in case in chief, but they can be used to impeach,
No "public safety" exception for 6th amendment |
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