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68 Cards in this Set

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Administrative or Reg Searches Border Check-points
NO DISCRETION TO POLICE AND RATIONALLY RELATED TO THE ROADS – checkpoints at borders -
Administrative Searches Probable Cause Standard
Non-criminal investigative search, PC is established if it is reasonable under the circumstances
Anonymous tips
Can establish probable cause if they correctly predict future behavior (events.)
Arrested or just detained test
Totality of Circumstances determines based on objective standard
Attenuated
Evidence obtained by means sufficiently distinguishable from the original illegality is purged of the primary taint and therefore is admissible
Attenuated ---consider as poisenous fruit
"T im c annot f ind b rass n uckles". T=Temporal (violation vs. evidence), C=causal, F=free will -I=intervening, B=bad faith-more likely more time needed, N=nature of secondary incident-allow witness vs phys evidnc.
Automobile – Containers in Car req Probable Cause
NO.As long as the cops have PC to search the inside of a car, and any containers that might contain what they are looking for, they can search any containers regardless of who owns them
Automobile detained for 20 minutes
police were diligently trying to dispel the suspicion that aroused the stop
Automobile Inventory Search
Once a person's car is seized it can be inventoried as long as the police follow standard procedures and the search passes a general reasonableness test
Automobile Passenger Compartment
Safety Concerns and concerns regarding destruction
Automobile Search – no arrest no warrant
B/c of the highly mobile nature, police are allowed to search a car w/o an arrest or a warr as long as there is PC. (Cops stop a car that they reas suspect is carrying booze, and search it turning up contraband.)
Automobile Search of Passengers
Ct held that b/c the passengers in a car did not hv complete dominion over the car ( no keys, no exclusivity) they did not have a legitimate expectation of privacy
Automobile Search w/o warrant or arrest
If they have probable cause to believe that the search will turn up evidence of a crime then the police can search a car without an arrest or a warrant
Blockburger Test
Test is not tied to the incident, but to the elements of the crime i. As long as all of the elements do not overlap, the police can still ? you about the new charge
Blood draws by police
Cops can draw blood if it is conducted in a reasonable manner and it is important
Car – Mobility Rational
OK to search car at station after burglary – (after arrest). rationale of mobility of car...
Check point - drugs
police can not set up drug check points because the transport of illegal drugs is not rationally related enough to driving on the highway
Communication 4th Amendment protects people not places
However, communication of criminals that is voluntary can always be used if third party notifies the police.
Consent
Pull over car and get consent to search, doesn't matter that suspect thought he had to consent.
Consent - 3rd pty
Would the facts available at the moment of entry warr a man of reas caution believe that the consenting pty had auth over the premises
Consent Standard
Totality of Circumstances
Containers Probable Cause
Container Continued – if probable cause, may seize the container, but still need a warrant to search it.
Containers Prob Cause (cont)
Except when a container is found within in an auto, people have a reasonable expectation of privacy in the contents of a closed container.
Contraband
Police can not manipulate items in order to determine if they are contraband ( cop moves stereo to read the serial numbers with only a vague suspicion that they might be stolen
Curtilage - common law
At common law it was defined as the area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life”
Custody
Reasonable belief that they are not free to leave.
Sophisticated Cameras
Sophisticated cameras are ok to search outside the curtilage
Electronic Surveilance
The use of a device not used by the general public to obtain evidence from the interior of a residence that cannot otherwise be obtained without physical intrusion constitutes a search
Exclusionary Rule Exception
The rule does not bar use by the prosecution of evid seized in reas reliance on a search warr issued by a detached and neutral magistrate subseq found to be unsupported by prob cause
Fleeing suspect
running away is not conducive to guilt, but is reason for police to stop
Arrest in the Home
Absent exigency or consent, an officer may not enter the home of a suspect in order to arrest unless they i.Have a warrant AND ii.Believe the suspect is within the building
Hot pursuit - enter house
Cops in hot pursuit can enter a house to look for a person as long as is reasonable. All search and seizure standards apply
House seized until warrant obtained
A temporary seizure of premises supported by PC and designed to prevent the loss of evidence while the police diligently obtain a warrant in a reasonable time is permissible
Interrogation
Words or actions from police that would reasonably be understood to elicit an incriminating response from the Suspect.
Katz
4th Amendment Protects People and Not Places (speech is protected if person not knowingly exposed communication to the public)
Knock and Announce Rule
K & A rule, Exceptions: 1.Posing a threat of physical violence 2. prisoner escapes and retreats to his home 3.reason to believe that evidence would be destroyed
Line-up versus In-court identification
Court remands the case for a determination of whether or not the lineup that occurred out of the presence of counsel sufficiently tainted the in court identification
Miranda requires
Requires 1)Custody and 2)Interrogation (Some states have 3rd requirement = testimonial) Side Note:
Physical Evidence is admissible even if miranda violated b/c it is not testimonial.
Miranda Violation and Witness Testimony
Does not require witness testimony to be excluded (ORIGINAL PURPOSE TO ELIM THREAT OF COERCION)
Waiver of Miranda
Does not need to be explicit, can be presumed by word or action KNOWING/INTELLIGENT AND VOLUNTARY
Murder Scene Exception - no such thing
There is no murder scene excpetion to the necessity of a warrant. search to make sure no-one is inj- seize anything in plain view-must limit their inspection to this function
Passenger has ticket and luggage taken away
When a passenger's ticket is taken and he is placed in a room with his luggage, then they have been arrested and the cops need more than RAS in order to detain them
Plain Touch Doctrine
doctrine that states that police may seize contraband detected solely thru the officer’s sense of touch if he has the right to touch and the illegality or probative nature is immediately apparent
Plain View Doctrine
Police in a place they legally have right to be, Also the finding of evidence in plain view must be inadvertent. (does not eliminate weapon that is expected to be found and is found in plain view) Also,
have legal access to the object.
Plain View Doctrine #2
Lawful vantage point( warrantless search,arrest, justified warrantless search, open fields, etc) 2.Lawful access to the object. 3 Prob c to seize the item ( it must be immediately apparent that the object is crim ev)
Probable Cause Definition
Exists where the facts & circumstances are sufficient in themselves to warr a man of reason-- that an offense has been or is being committed by the person or that search will turn up evid of a crime.
Probable Cause Standard
Totality of the Circumstances..... Hearsay can be considered in the mix
Strategic choices - choice for limited investigation.
Strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments support the limitation on the investigation
Recording conversations of Defendant.
Evidence is not allowed.
Right to Counsel #1
My attorney told me not to say anthing = invocation. I might want counsel is NOT Invocation. Must be unambiguous
Right to Counsel #2
First Appeal, possibility of confinement or probation
Right to Counsel - When does it attach?
Once the state has begun adversarial judicial proceedings against the Def. (Indictment, preliminary hearing, formal charge, arraingment)
Right to Counsel - Incompetence
Deficient behavior by counsel that fails an objective reasonableness test, and the deficiency must undermine confidence in the outcome. (outcome of trial was affected)
Right to Counsel - 2nd appeal (discretionary)
Denial of appointed counsel for a discretionary appeal is not a denial of DP,b/c the SC will hv a structured argument fr the appeal as of rt,which makes the disparity between rich & poor much less
Special Needs Doctrine
Where the public interest is best served by a 4th amendment standard that falls short of probable cause the court may apply the lower reasonableness standard
Teachers - similar to Special Needs Doctrine
Teachers can search students if 1. There are reas grounds ....will turn up evid of a viol of a rule 2. is not excessively intrusive based on the age, sex of the student, & nature of infraction
General search of houses in the area - similar to special needs doctrine
D is not entitled to challenge evidence that is turned up in a routine housing search as long as the state can justify why inspections are needed in the area
Standing
A legitimate expectation of privacy (house, guest overnight, right to possession, held out to public).
Stop and Frisk - sqeeze object
In a terry stop a police officer is not allowed to squeeze an object in the D's pocket to determine if it is illegal ONCE the danger of a weapon is dispelled
Stop and Frisk
Pat Down of Outer Clothing (for weapons)
reasonable articulabel suspicion that the person is armed – OBJECTIVE STANDARD
Traffic Violation Stop
Court holds that a pretextual stop for trafic viol in order to search for drugs is ok as long aa the cops have prob cause for anything. Ct does not want to get involved in the subjective intent of police officers
Unintentional Coercion - violation by police
Court held that even an unintentional violation will cause the evidence to be excluded. Cops give an addict a drug to quell withdrawal (which also acts as a truth serum)
Can seize things not in warrant if probable cause, but...
BUT Information obtained during a search may require them to cease or narrow their search
Warrant – cannot be open-ended (Lo-Ji Porn movies)
The 4th Amendmt does not countenance open-ended warr to be completed while a search is being conducted & items seized or after the seizure has been carried out.
Warrant - illegal
If warrant is obtained based on separate evidence not related to the illegal search of warehouse, then warrant and subsequent evidence is admissible.
Warrant: Probable cause facts from affidavit of officer
Warrant that gave no basis for the informant's knowledge that was coupled with a bare accusation was insufficient to establish probable cause
When must the state provide counsel?
Whenever there is a real possibility of incarceration or probation, and for the first appeal as of right
Witnesses testimony
Witnesses testimony is not barred based on a miranda violation