Criminal Procedure

Front 1

What is the Exclusionary Rule?

Back 1

Remedy of constitutional procedure whereby a victim of an illegal search or coerced confession can have the product of the illegal search excluded from any subsequent criminal prosecution.

Front 2

What are the limitations on the Exclusionary Rule?

Back 2

1. Does not apply to grand jury or civil proceedings.
2. Search must violate federal constitution or statute.
3. All illegally seized real or physical evidence may be used for impeachment of D's testimony in trial testimony.
4. Not a remedy for violation of "knock and announce" if officer reasonably believes K&A would be futile, dangerous, or inhibit the investigation.
5. Does not apply if officer's actions are reasonable.

Front 3

What is the Fruit of the Poisonous Tree Doctrine?

Back 3

Expands exclusion by excluding all evidence obtained or derived from exploitation of police illegality.

Front 4

What are the 3 ways the Gov't can break the chain? (Hint: 3 I's)

Back 4

Independent Source (for evidence): can be traced to another legal source that is unconnected to the illegal source. Wholly independent, not causally connected.
Inevitable Discovery: eventual discovery through ordinary lawful means.
Intervening Act of Free Will: often combined with attenuation; so reduced in strength that the evidence should be rendered inadmissible; Courts consider amount of time passed, intervening act, flagrancy of violation, and nature of derivative evidence.

Front 5

When do the police need a warrant?

Back 5

Can arrest w/o a warrant for a felony anytime police have reasonable grounds to believe that a felony was committed and that this person did it, or for misdemeanor committed in their presence, or for arrest in public (for a felony).
Need warrant for non-emergency arrest in private home.
Need probable cause for station house detention (fingerprinting & interrogation).

Front 6

What 5 questions should you ask for search and seizure questions to determine if the person has a 4th A right?

Back 6

1. Was there governmental conduct?
2. Was there a reasonable expectation of privacy?
3. Did the police have a valid search warrant?
4. Does the good faith reliance exception for invalid warrants apply?
5. Do any of the 6 exceptions to the warrant requirement apply?

Front 7

What constitutes gov't conduct?

Back 7

Need a gov''t actor or a private individual acting at the direction of public police.

Front 8

Within the reasonable expectation of privacy, what are the 3 levels of standing and when does each apply?

Back 8

1. Automatic standing: own, live on, or spent the night on the premises searched.
2. Sometimes standing: must have reasonable expectation of privacy in the item or area searched even if you own the item or are legitimately present when search occurs.
3. Never standing: sound of voice, style of handwriting, paint on car, account records held by bank, monitoring location of car on public street or own driveway, anything that can be seen across open fields or when flying over public airspace, odors emanating from luggage, and garbage set by curb for collection.

Front 9

What is required for a valid search warrant?

Back 9

1. Probable Cause: fair probability that contraband or evidence will be found in the area searched. Majority uses totality of the circumstances test (corroboration of police of enough of the information to allow a common sense practical determination). Police can rely on hearsay and anonymous informants (but some states apply Spinelli/Aguilar which requires that police (1) explain how informant knows the information and (2) vouch for informant's reliability).
2. Particularity: warrant must state with particularity the place to be searched and the things to be seized. No generalized warrants or "fishing expeditions."

Front 10

What is the Good Faith Reliance Exception and what are the 4 exceptions?

Back 10

If officer acts with objective good faith pursuant to a warrant which turns out to be invalid, GFR overcomes defects with probable cause or particularity, but affidavit underlying warrant must not be so lacking in probable cause or particularity that a reasonable officer would not rely on it, officer must not lie to or mislead the magistrate, and magistrate must be neutral and detached.

Front 11

What are the 8 exceptions to the warrant requirement?
(Hint: ESCAPIST)

Back 11

1. Exigent Circumstances: Hot Pursuit/Evanescent Evidence/Emergency Aid (HP/EE/EA): police can enter any home after fleeing felon and any evidence of a crime observed therein is admissible; police may confiscate any evidence that might disappear if they took the time to get a warrant; reasonably necessary to provide emergency aid to injured or those threatened with injury.
2. Search Incident to Arrest (SIA): must be lawful arrest; arrest and search must be contemporaneous in place and time; can only search the person and areas into which he can either procure a weapon or destroy evidence (lunge area); includes containers; can't use SIA if D has been removed from car and arrested, unless it is reasonable to believe he could gain access to the car in order to reach a weapon or destroy evidence.
3. Consent: must be voluntary and intelligent; police don't have to warn of right to deny consent; can get consent from someone who isn't authorized if police reasonably believe they are; when two or more people have equal right to use a property, either can consent, but if either objects, consent fails.
4. Automobile Exception (AE): if police have probable cause to search prior to searching anyone or anything, they may search the entire interior and trunk of the car, including any packages or compartments therein, which could reasonably contain the item they had PC to look for. PC can arise after car is stopped but must arise before any search.
5. Plain View Exception (PV): can seize evidence or contraband that is in plain view if officer was legitimately present when items were observed; need lawful access to the place and item, and item must be illegal.
6. Inventory: when car is impounded resulting from arrest, regulations must be reasonable, search must comply with them, and search must not be pretext.
7. Special Needs: goes beyond general interest in law enforcement; no 4th A rights at the border.
8. Terry Stop and Frisk (TSF): brief detention for purpose of investigating suspicious conduct; officer only needs reasonable suspicion; seizure occurs when D does not feel free to leave, but generally need a police display of force or exercise of authority; search is pat down of outer clothing and body to search for weapons; must reasonably think that person could be armed and dangerous; weapons are always admissible; non-weapons are admissible if it looked like they could have been weapons or contraband from outside the clothing.

Front 12

What are the Miranda warnings?

Back 12

1. You have the right to remain silent.
2. Anything you say can and will be used against you.
3. You have the right to an attorney. If you can't afford one, one will be provided for you.
4. You have the right to terminate interrogation at any time.

Front 13

What triggers Miranda?

Back 13

Custodial Interrogation: custodial if at the time of the interrogation you do not feel free to leave; objective standard; probation interviews and routine traffic stops are not custodial; interrogation is any conduct where police knew or should have known that they might elicit an incriminating response ; more than just asking questions, must be incriminating; Miranda not required for spontaneous statements.

Front 14

How do you waive Miranda rights?

Back 14

Miranda waived by either signing the waiver form or saying, "I waive my rights," but must be voluntary and intelligent; shrugging shoulders is not enough.

Front 15

What is the right to counsel?

Back 15

5th A right to counsel only occurs when D asserts right to end interrogation and asks for an attorney in response to Miranda warnings. Police may not re-initiate interrogation on any topic until attorney arrives.
6th A right to counsel is offense specific and is the default.

Front 16

Explain denial of right to counsel and denial of due process in pre-trial identification?

Back 16

Post charge line-ups and show-ups give rise to tight to counsel. There is no right to counsel when D is shown photographs.
Some techniques are so unnecessarily suggestive that they deny DP b/c they are likely to produce a mis-ID (ex. 1 white guy in line-up).
Denial of right to counsel or DP does not automatically result in exclusion; may have independent source or a witnes could be allowed to testify.