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61 Cards in this Set

  • Front
  • Back
4th Amendment
Protection against unreasonable searches, seizures and arrests
5th Amendment
Prohibition against double jeopardy and compelled self incrmination
6th Amendment
1)The right to a speedy and public trial by jury,
2) right to confront and subpoena witnesses (compulsory process)
3)the right to assistance of councel
4) right to notice of nature and cause of the accusation
8th Amendment
Prohibition against excessive bail and cruel and unusual punishment.
Under the 10th Amendment the states can do what?
Under the 10th Amendment a state under it own constitution can give greater protection then federally mandated
4th Amendment - Search and Seizure (complete def)
4th amendment applicable to the states via the 14th amendment "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, support by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized
What is considered as search?
Any governmental intrusion upon reasonable expectation of privacy
What do governmental agencies include?
police, private person acting at police direction, privately paid police (security guard) public school officials.
What is an expectation of privacy that must exist?
Person manifested an actual (subjective) expectation of privacy and it is an expectation society recognizes as reasonable
Does an overnight guest have an expectancy of privacy?
Minnesota v. Olson ruled that an overnight guest had a reasonable expectation of privacy in a home pursuant to the 4th amendment and upheld a finding that there were no exigent circumstances to justify a warrantless entry
What does the Bond v. US case state?
Squeexing a passenger's canvas bas is a search
The 4th amendment protects people not places
No expectation of privacy in objects held out to the public
1) bank records
2) voice exemplars
3) abandoned property
4) open fields
5) handwriting
6) telephone numbers dialed
7) cannine sniff
8) false confidence
9) visible to the naked eye
10) discarded garbage (abandoned property)
11) open fields
Valid Warrant
Searches and seizures authorized by a valid warrant are always deemed reasonable if
1) issued by neutral magistrate
2) particularly describes the things to be seized and the person or place to be searched
3) Probable cause
Administrative searches
Healthy and safety code inspections requires a warrant if consent is not given. Warrent requires a diluted form of probable cause
Electronic Surveillance
Unconsented interception or a conversation by an electronic device is a search and subject to the 4th amendment
Searches without warrants
The generally requirement of the 4th amendment is that a warrent must be obtained and the burden of exemption from the rule on the prosecution
Search without warrant exceptions
(Sam Entered Sally's Apartmebt Intending Instant Pain she cried please leave premises)
1) School child
2) Exignet circumstances
3) search incident to a lawful arrest
4) automobile
5) Plain view
6) Stop and Frisk
7) Consent
8) Public Policy
9) Licensing
10) Probationers and Parolees
School - Child
A public school official can reasonably search a student and her effects provided there is a reasonable belief the student is violating a school rule or criminal law
Exigent circumstances
where a delay would result in the destruction of the evidence, a loss of the evidence or endangerment of life or property.
1) responding to a screams
2) moving vehicle
3) blood sample
4) hot pursuit of a criminal
5) if there is probable cause illegal drugs are in the ome
Search incident to a lawful arrest
Lawful arrest required (probable cause)
1) The search-incident to arrest exception is inapplicable when the search precedes the arrest and serves as partial jurisdiction for the arrest
1) Reasonable suspicion to stop
2) probable cause to search
3) impoundment theory - police must have lawful reason to impound -inventory search
2) expectation of privacy- lower in public places technological aids (beepers) are permitted to enhance visual surveillance
Plain View
1) police lawfully on the premises
2) police see evidnce which is obviously incriminating (includes plan smell/touch)
3) evidence was in plan view
Stop and Frisk
The stop and frisk right to detain the question is based on articulable reasonable suspiction that criminal activity is afoot
2) lawful risk limited for search weapons
3) a police office pursuit of an individual constitutes a seizures only when a reasonable person would have believed that he or she was not free to leave.
4) law enforcement officers' reasonable suspiction that an airline passenger who fit the drug courier profile was smuggling drugs support the officers stop of the passenger upon arrival at an airport
An individual may voluntarily consent to a search and thereby waive his 4th Amendment rights
1) look for an intelligent and voluntary waiver based on the totality of the circumstances
2) knowledge of the right to refuse consent is not absolutely necessary, yet may be considered in viewing the totality of the circumstances
3) scope of search limited to scope of consent
4) authority to consent
Public Policy/Adminstrative searches
1) border/airport searches
a) require no PC
b) can search gas tank at border without suspiction
2) fixed checkpoints
c) blood, urine and breath testing of railroad employees under certain conditions were reasonable searches under the 4th amendment even though the regulations did not require a warrant PC or particularized suspiction of substance abuse
Licensing/Aministrative Power
Participants in regulated activities are subject to intrusions by the government without a warrant or PC
1) firearm retailers
2) liquor retailers
3) narcotic retailer
Probatitioners and Parolee
No PC or warrant required (implied consent as part of the release)
The exercise of dominion/control by the government over a person or thing
Seizure of the person
Look to see if suspet is deprived of his/her freedom to leave (custody, actual, restraint or submission to custody)
2) police roadblock completely crossing a highway forcing a motorist to stop is a seizure
Arrest with a Warrant
1) requires PC - fats must be sufficient to warrant a reasonable person to beliee that the suspect had committed the offense
2) affidavit submitted and approved by a magistrate
3) arrest in home - warrant required unless exigent circumstances exist or an occupant of the residence has consented to policy entry
3) knock - notice requirements unless exigent circumstances exist
Arrest without a warrant`
If PC exists, and arrest may be made for any felony event if ample opportunity exists to gain the warrent
2) arrest may be made if misdemeanor committed in presence of the officer
3) If there is an arrest without a warrant, within 48 hours of that arrest a judge must conclude there is PC or a crime sufficient to allow the arrest
Seizure of evidence
1) Did PC exist for the seizure
The exclusionary Rule
No evidence seized in violation of the 4th amendment may be admitted at trial regardless of its reliability: rational deter police misconduct
Defendant must establish that he/she was directly aggrivated by the illegal conduct interest in the evidence seized or placed searched
Modernly - expectation of privacy based upon totality of circumstances
1) evidence derived from the 4th amendment constitutional violations may not be admitted in a criminal proceeding as proof of guilt
Fruits of a poisonous Tree Doctrine
Applies to evidence seized as a direct result of the illegality and also to information or secondary evidence obtained indirectly which was obtained as a result of primary police conduct
1) witness
2) statements
3) idenification
4) information
5) objects
Exceptions - Fruits of the poisonous tree
1) dissipation of the taint (time interval) There must be a causal connection between the tree and the fruit and if that connection can be meaningful severed
Independent source rule
Evidence will be admitted where it is obtained form a source independent of the 4th amendment violation
Inevitable discovery rule
Evidence would have been inevitably discovered through the normal course of police misconduct
Good faith reliance on warrant or unconditional statute. The exclusionary rule does not apply to evidence gathered by police acting in good faith who reasonably rely on a search warrant that turns out not to be based on PC
Body of the defendant
An arguable illegally seized defendant can nevertheless be prosecuted
Illegally obtained evidence can be used in?
1) grand jury
2) preliminary hearing
3) impeachment
4) sentencing
5) parole/probation
6) civil case
7) post conviction - habeas corpus proceedings
Harmless v. reversible error?
Where the illegally seized evidence is erroneously admitted the conviction may be automatically reversed unless the state can show beyond a reasonable doubnt that the verdict was not based on or prejudiced by in any way the illegal evidence
5th Amendment
Privilege against compelled self incrimination applies only to testimonal communicative evidence rather than to physical evidence (fingerprints, blood samples, handwriting, video)
Does the privilege apply to corporations?
The privilege against compelled self-incrimination does not apply to corporation, although the individual corporate officer's act of production may not be used against this individual
1) once a witness answers a question relating to a subject which admits liability this admission is a waiver
2) when the defendant takes the stand in his own defense this is an automatic waiver on the 5th
c) privilege does not apply if there is no possibility in
1) look for voluntariness of hte confession based upon the totality of the circumstances
2) beware of express/implied coercion
Admission of coerced confession
The US Supreme Court ruled that state appeals court are to determine whether coerced confession were "harmless errors" rather then simply revering them because of the constitutional violation
Miranda Warings
Deal with the defedant's 5yh Amendment right against compelled self incrimination and a implied right to counsel
A suspect must be given the Miranda warnings whenever the police deprive him of his freedom of movement in any significant way and attempt to solicit statements from him (closer to an arrest the better)
Must a statement be a response to the interrogation?
What is the Functional Equivalent Test?
Elicit incriminating response (focus: emotional, weakness of the suspect)
What happens once a suspect asserts his right to remain silent?
Once a suspect asserts his right to remain silent, the interrogation must cease immediately but can be reopened.
After the warnings are given, police may question a suspect if he voluntarily, knowingly, and intelligently waives his rights
Exclusionary Rule
Limited application: Derivative evidene of miranda violations are admissible. Prosecutors may use at Trial evidence obtained as the result of defendants' themselves.
Double Jeopardy
5th Amendment prohibition against double jeopardy (no person shall be subjected for the same offense to be twice put in jeopardy of life or limb
Areas of protection Double Jeaopardy
1) two crimes are the same offense unless each requires proof of an additional fact not contained in the other ie rape and murder. Crimes are also the same offense for double jeopardy purposes if all of the written elements of one crime are present in the other, ie larceny and robbrety are the same offense
What happens when a defendant's right have been violated regarding Miranda?
Where a defendant's right have been violated regarding Miranda there is reversal unless the state can prove a harmless error.
When does double jeopardy attach?
1) Jury Trial - swearing in of jury
2) nonjury trial - first witness sworn in
3) when presiding judge ends trial on own motion
4) commencement of juvenile proceedings
When does double jeopardy NOT attach?
1) mistrials (no intent to cause a mistrial by the prosecution
2) hung juries
3) separate sovereigns concept
Appeals re double jeopardy?
An appeal waives the bar against double jeopardy but when the defendant wins a reversal for insufficiency of evidence, double jeopardy will bar a reprosecution should the state later obtained the requisites evidence