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120 Cards in this Set
- Front
- Back
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The eight steps for Fourth Amendment analyses:
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1. Is there government conduct? 2. Did the search or seizure invade an individual's reasonable expectation of privacy? 3. Was the search authorized by a facially valid warrant? 4. Does an officer's "good faith" save the defective search warrant? 5. Was the search warrant properly executed by the police? 6. Is the search valid under any of the eight exceptions to the warrant requirement? 7. Can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant in court? 8. Is any of the evidence introduced by the prosecution "fruit of the poisonous tree" and, if so, is the evidence admissible?
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4th am: Is there government conduct - three categories of govt actors:
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1. publicly paid police, on or off duty
2. private citizens, but only if acting at the direction of police 3. privately paid police, but only if deputized w/power to arrest |
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4th am: Protected areas - the 4th am protects individuals from unreasonable searches and seizures of their:
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-persons (bodies)
-houses (including hotel rooms) -papers (personal correspondence) -effects (purses, backpacks) *home-based privacy includes curtilage |
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4th am: unprotected areas - categories of items sufficiently public that they have NO reasonable expectation of privacy:
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-paint scrapings on outside of your car *account records held by a bank *air space - anything that can be seen below while flying in public airspace, if flying at airspace allowed for commercial plane *garbage left at curb for collection *voice - sound of your voice *open fields - anything that can be seen in or across the open fields *handwriting style *odors emanating from your car or your luggage
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4th am. To have standing to challenge a search and seizure, an individual...
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must have had their personal privacy rights invaded, not those of a third party.
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4th Am. Individuals always have standing if...
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-they are owner of premises searched
-residents of premises searched -overnight guests in the premises searched, as to areas guest can be expected to access |
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4th Am. Individuals never have standing if:
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-using someone else's private residence solely for business purposes
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4th Am. To have standing if you are the owner of property seized...
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you must have had a reasonable expectation of privacy in the area from which property was seized.
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4th Am. Only have standing, if you are the passenger of a searched car...
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if the passenger has a reasonable expectation of privacy in the item searched or seized - ex, woman's privacy interest in her purse
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If a government search and seizure has violated a reasonable expectation of privacy, must next ask...
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whether the search and seizure was the product of a validly issued and properly executed warrant.
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For a search to be executed pursuant to a facially valid warrant, the warrant must be... (two, with definitions)
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1. based on probable cause - fair probability that contraband or evidence of a crime will be found in area searched and
2. particularity - the search must specify the place to be searched and the items to be seized |
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Two items on which police can rely in establishing probable cause:
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-hearsay
-tips from confidential and anonymous informants (if the police corroborate enough of the tipster's info to allow the magistrate to make a common sense, practical determination that probable cause exists) |
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For the particularized description in an affidavit to support a warrant...
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the affidavit must be incorporated explicitly into the warrant itself.
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A warrant that is invalid due to absence of PC or particularity can be saved if...
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the officer relied on it in good faith.
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4th Am. An officer's "good faith" cannot overcome a deficient warrant if: (four exceptions)
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1. the affidavit supporting the warrant application is so egregiously lacking in probable cause that no reasonable officer would have relied on it 2. the warrant application is so egregiously lacking in particularity that no reasonable officer would have relied on it 3. the officer or DA lied to or misled the magistrate who issued the warrant 4. the magistrate who issued the warrant was biased, meaning he or she wholly abandoned neutrality
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A search warrant is NOT properly executed by the police if:
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1. the officers exceed the scope of the warrant - includes any areas not listed in warrant, and any containers too small to hold item for which warrant was issued
2. the officers fail to comply with the knock and announce rule - must knock and announce presence and purpose |
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Officers executing a search warrant need not comply with the knock and announce rule if: (three options)
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the officer reasonably believes that doing so would be:
1. futile 2. dangerous 3. would inhibit the investigation |
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A search executed without a warrant, or with a defective warrant, may be valid if it occurs under one of eight exceptions to the warrant requirement:
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1. exigent circumstances 2. search incident to arrest 3. consent 4. automobile exception 5. plain view 6. inventory (after arrest or compound) 7. special needs 8. Terry stop and frisk
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The exigent circumstances exception to the warrant requirement under the 4th amendment applies:
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1. where evidence would dissipate or disappear in time it would take to get a warrant
2. where police are in hot pursuit of a fleeing suspect - can enter home of suspect or that of third party into which he has fled |
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Under the exigent circumstances exception to the warrant requirement under the 4th Amendment, if police follow a suspect into a home in hot pursuit, any evidence of a crime in _____ _____ while searching for the suspect is admissible.
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plain view
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To qualify as a search incident to arrest, as an exception to the warrant requirement, the requirements, timing, justification and geographic scope are:
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-following a lawful arrest
-justification is officer safety and need to preserve evidence -timing is must be contemporaneous in time and place with arrest -geographic scope is within person's wingspan - body, clothing, and any containers or effects |
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The permissible scope of a search of a car searched incident to an arrest (as an exception to the warrant requirement) is:
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interior cabin of the car, including closed containers, but not the trunk
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To qualify as a search based on consent, as an exception to the warrant requirement, the consent must be:
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voluntary and intelligent - the fact that police don't tell someone she has the right to refuse consent doesn't make the consent invalid.
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In executing a search based on consent, as an exception to the warrant requirement, the police can rely on the consent of someone with ...
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apparent authority, even if the person actually lacks the authority to grant consent, if the officer reasonably believes the person has actual authority.
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If a premises is shared, ________ ________ can consent to a search, such that it will be valid as an exception to the warrant requirement.
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either resident
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If co-tenants to a premises disagree regarding consent to a search (under the exception to the warrant requirement), who prevails?
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If both tenants are present, the party objecting to the search prevails, as to areas over which the tenants share dominion and control.
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To qualify under the automobile exception to the warrant requirement, the police must:
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have probable cause to believe that contraband or evidence of a crime will be found in the vehicle.
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Under the automobile exception to the warrant requirement, the police can search:
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the passenger compartment and the trunk, and may open any package, luggage or other container that may reasonably contain the items for which there was probable cause to search.
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In a traffic stop, does an officer need probable cause to search the car at the time the car is pulled over?
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No, but he needs PC before initiating the stop.
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To qualify as a valid search under the plain view exception to the warrant requirement, the police must satisfy three requirements:
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1. lawful access to place from which item can be plainly seen
2. lawful access to item itself 3. criminality of item must be immediately apparent |
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The inventory search exception to the warrant requirement most often arises in which two contexts:
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1. when arrestees are booked into jail
2. when vehicles are impounded |
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For an inventory search to be constitutional, under the warrant requirement exception:
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the regs governing the search must be reasonable in scope, and the search itself must comply with the regs.
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The five 'special needs' exceptions to the warrant requirement are:
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-random drug testing
-probationers homes -government employees' desks and files -students' effects in public schools and -crossing the border |
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Warrantless, random drug testing does not violate the warrant requirement in contexts such as:
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1. railroad employees following an impact accident
2. customs officials responsible for drug interception 3. public school children in extracurricular activities |
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Warrantless searches of probationers' homes do not violate the warrant requirement where:
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the police have reasoned grounds to believe contraband is present.
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Government employees' desks and files may be searched without a warrant, as a valid exception to the warrant requirement, where...
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the employees are being investigated for work-related misconduct.
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Public school childrens' effects may be searched without a warrant, as a valid exception to the warrant requirement, to...
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investigate violations of school rules, such as smoking on school grounds.
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Neither citizens nor non-citizens have an expectation of privacy at ___ ________, and may be searched without a warrant.
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the border
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What are Terry stops and Terry frisks?
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stop: brief detention or seizure for purpose of investigating suspected conduct
frisk: pat-down of body and outer clothing for weapons |
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Evidentiary standard for Terry stops and Terry frisks?
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stops: reasonable suspicion based on specific and articulable facts that make officer believe criminal activity is afoot
frisk: reasonable suspicion based on specific and articulable facts that suggest suspect is armed and dangerous |
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A Terry frisk is justified by:
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concern for officer safety only - not a general search for criminal activity
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What can officer seize during a Terry frisk?
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A weapon can always be seized; if, instead, officer finds something recognized as contraband without manipulating the object, she can seize it as well.
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When is an individual seized for 4th Am purposes? Three factors.
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when, based on the totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer's request to answer questions (need more than just officer asking questions in public place).
Three factors: 1. whether officer brandishes a weapon 2. officer's tone and demeanor when interacting w/individual in question 3. whether individual was told he had right to refuse consent |
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An individual in flight is seized for 4th Am purposes only if:
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1. he submits to officer's authority by stopping or
2. if officer physically restrains him. |
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Who is seized, for 4th Am purposes, in a traffic stop of an automobile, so as to confer standing to challenge the stop?
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both driver and all passengers
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Is a dog sniff during a traffic stop a "search" under the 4th Am?
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No - provided the sniff does not prolong the stop unreasonably.
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Can prosecutors generally use evidence gathered in an unconstitutional search and seizure against the defendant in court? What is this rule called? State the rule.
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No. The exclusionary rule: evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated.
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What kind of evidence does the exclusionary rule (4th Am) apply to?
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testimonial and physical
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Which defendants does the exclusionary rule (4th Am) "protect"?
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Those whose rights were violated by the unlawful search or seizure.
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The exclusionary rule (4th Am) prohibits use of evidence in which part of a trial, and allows its use when?
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prohibited use in prosecutor's case in chief; may be introduced to impeach the defendant's testimony on cross examination
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The exclusionary rule (4th Am) does not apply to which proceedings? (three)
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1. grand jury proceedings
2. civil proceedings 3. parole revocation hearings |
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The exclusionary rule does not apply to which two violations of the reasonable search and seizure rule?
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1. knock and announce rule - subsequently discovered evidence need not be suppressed
2. officer's reasonable mistake in executing a search warrant, provided the mistake is reasonable |
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Evidence derived from a prior unconstitutional search or seizure is known as __________ and is inadmissible at what part in trial?
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Fruit of the Poisonous Tree; inadmissible in prosecutor's case in chief
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The fruit of the poisonous tree can be nullified by:
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showing break in causal link between original illegality and evidence later discovered
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Three doctrines used to nullify the fruit of the poisonous tree by breaking the causal connection between the fruit and later discovered evidence:
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1. independent source doctrine - where there's a source for the discovery and seizure of the evidence that is distinct from original illegality 2. inevitable discovery doctrine - when evidence would necessarily have been discovered by the police lawfully 3. attenuation doctrine - where D's free will has been restored through passage of time and intervening events (ex, release from confinement, meeting w/atty. voluntary decision to return)
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A valid wiretap warrant requires four elements:
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1. probable cause
2. persons - must name persons expected to be over heard 3. conversations - particularly describe those to be over heard 4. time - strictly limited time period |
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A warrant is not required where a party to conversation agrees to ... because...
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wear a wiretap or some other form of electronic monitoring... because you assume the risk the other person will not keep the conversation private
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When does an arrest occur?
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When police take a person into custody against their will for interrogation or prosecution.
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What standard of proof applies to arrest?
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Probable cause
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The 4th Am permits a custodial arrest for...
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any offense, even one only punishable by a monetary fun.
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A de facto arrest is deemed...
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when police compel an individual for 1. fingerprinting or 2. questioning
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A warrant is not needed to arrest an individual in:
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a public place, and, in an emergency situation, in their home.
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A warrant is needed to arrest an individual in:
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his home, absent an emergency.
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To arrest an individual in the home of a third party, the police need:
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an arrest warrant and a search warrant.
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Under the common enterprise theory, where a police officer, during a traffic stop, discovers evidence suggesting a common unlawful enterprise between the driver and passengers, may arrest:
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any or all of them, based on a reasonable inference of shared dominion and control over contraband.
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The three federal constitutional challenges that can be brought to exclude a confession are:
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1. 14th Am DPC (involuntary)
2. 6th Am right to counsel (questioned in absence of atty after proceedings begin) 3. 5th Am right against self-incrimination - Miranda (questioned after say don't want to talk or after request an atty) |
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The standard for excluding a confession under the Due Process Clause is:
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that the confession must be involuntary, using a totality of the circumstances test - involuntary only if there is official compulsion
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The 6th Am right to counsel is an express right that attaches...
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when the defendant is formally charged
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The 6th Am right to counsel is ________ specific and thus applies only to ... and o provides no protection for....
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offense; the specific charges filed against the defendant; uncounseled interrogation for other uncharged criminal activity
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The 5th Am Miranda doctrine is implied or express, and is grounded in what constitutional basis?
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implied; grounded in self-incrimination clause of 5th Am
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The four core Miranda warnings are:
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1. the right to remain silent 2. anything you say can and will be used against you in a court of law 3. the right to an attorney 4. if you cannot afford one, you have the right to have an attorney appointed for you
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Miranda warnings are necessary when:
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a suspect is in custody and is being interrogated.
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A suspect is in custody for purposes of Miranda when:
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the atmosphere is characterized by police domination and coercion such that his or her freedom of action is limited in a significant way.
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Interrogation under the Miranda doctrine is defined as:
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any conduct police know or should have known was likely to elicit incriminating response.
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Under the public safety exception, Miranda warnings are unnecessary where custodial interrogation is prompted by ...
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an immediate concern for public safety. Any incriminating statements are admissible against the suspect.
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A valid Miranda waiver must be:
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1. knowing and intelligent
2. voluntary |
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For a waiver of Miranda rights to be knowing and intelligent, the suspect must:
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-understand the nature of the rights and consequences of abandoning them
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For a waiver of Miranda rights to be voluntary, it must:
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-not be the product of police coercion
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In proving a valid waiver of Miranda rights, the prosecution must demonstrate waiver by what evidentiary standard?
Does silence or shoulder-shrugging satisfy the burden? |
preponderance of the evidence
No |
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When a suspect invokes the Miranda right to remain silent, the police can resume questioning when and if what happens:
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later within the same custodial period, provided the police scrupulously honor the earlier request not to answer questions and obtain a valid Miranda waiver before initiating questions
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Once a suspect invokes the Miranda right to counsel ...
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all interrogation must cease unless initiated by the suspect.
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The Miranda right to counsel is not _______ ________, so that interrogation following a request for counsel is prohibited as to...
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offense specific; all topics outside presence of the suspect's attorney.
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Where in the trial are incriminating statements obtained in violation of a suspect's Miranda rights admissible?
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NOT in the prosecution's case in chief, but may be used to impeach a defendant on cross but NOT testimony of third party witnesses
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Failure to give a suspect Miranda warnings does not require suppression of what kinds of fruits?
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physical fruits of unwarned but voluntary statements
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If statements are made before a Miranda warning/due to a Miranda violation, statements made AFTER the defendant makes a proper Miranda waiver are...
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not inadmissible, provided the initial Miranda violation was not obtained through the use of inherently coercive police tactics offensive to due process.
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If testimonial evidence, obtained in violation of Miranda, is improperly admitted as evidence in a trial, the guilty verdict may stand if the government can prove beyond a reasonable doubt...
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that the error was harmless because the defendant would have been convicted without the tainted evidence.
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Three kinds of pretrial identification:
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1. line-ups: witness is asked to identify the perpetrator from a group
2. show-ups: one-on-one confrontation between the witness and the suspect 3. photo arrays: witness asked to pick out the perpetrator from a series of photos |
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The two substantive challenges to pretrial identification (constitutional rights) are:
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-sixth amendment right to counsel
-fourteenth amendment right to due process |
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The fifth amendment right to counsel under Miranda applies to pretrial identifications...
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not at all.
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The sixth amendment right to counsel applies to pretrial identifications...
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at line-ups and show-ups that take place after formal charging, but not at photo arrays.
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A pretrial identification violates the 14th Am due process clause when it is...
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so unnecessarily suggestive that there is a substantial likelihood of misidentification.
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The remedy for constitutional violations in pretrial identification is:
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exclusion of W's in-court id - for both DPC and 6th Am violations
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Even if there is a constitutional violation in a pretrial identification, an incourt identification will be allowed if:
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the prosecution can prove that it is based on observations of the suspect other than the unconstitutional line-up, show-up or photo-array.
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To make a showing that a witness identification is based on observations of the suspect other than an unconstitutional pre-trial identification procedure, the prosecution can point to evidence such as...
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-the W's opportunity to view the D
-the certainty of the identification -the specificity of the description provided to the police |
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What standard does the government need to bind a defendant over for trial and detain him in jail before trial?
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probable cause
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A hearing to determine probable cause to justify pretrial detention is unnecessary if...
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1. a grand jury has issued an indictment
2. a magistrate has issued a warrant |
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Soon after an arrest, a defendant must be brought before a magistrate who will do three things:
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1. advise her of her rights
2. set bail 3. appoint counsel if necessary *decisions regarding bail are immediately appealable |
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A prosecutor must disclose what information to a criminal defendant?
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All material exculpatory evidence
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A judge is unbiased if he...
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-has no financial stake in the outcome of the case
-and has no actual malice towards the defendant |
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A defendant has the right to a jury trial when...
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the maximum authorized sentence exceeds six months.
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The fewest number of jurors that can sit? And need the verdict be unanimous?
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6; only if 6 jurors are used - in 12 person juries, need not be unanimous
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What is the requirement for the pool from which a jury is pulled?
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Must represent a cross-section of the community.
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Peremptory challenges cannot be used to exclude jurors based on...
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race or gender.
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A defendant's constitutional right to confront adverse witnesses under the 6th Am confrontation clause does not apply where...
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face-to-face confrontation would contravene important public policy concerns.
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An ineffective assistance of counsel claim requires proof that:
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1. counsel's performance was deficient and
2. but-for deficiency, the outcome would have been different |
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An ineffective assistance of counsel will fail unless there is...
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some colorable argument that defendant is not guilty.
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The four requirements of the plea-taking colloquy that the judge must address to the defendant of the record:
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1. nature of the charge
2. maximum authorized sentence and any mandatory minimum 3. that D has right to plead not guilty and proceed to trial 4. by pleading guilty, D is waiving trial and will proceed directly to sentencing |
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A defendant may withdraw a guilty plea after sentencing if:
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1. problem with plea-taking colloquy or
2. jurisdictional defect or 3. D prevails on ineffective assistance of counsel claim or 4. prosecutor fails to fulfill his part of the bargain |
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The Eighth Amendment prohibits criminal penalties that are....
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grossly disproportionate to the seriousness of the offense committed.
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A death penalty statute violates the 8th Am if it...
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creates an automatic category for imposition of the death penalty.
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Jurors must be allowed to consider all of what kinds of evidence in deciding whether or not to impose the death penalty?
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potentially mitigating
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The 8th Amendment prohibits imposition of the death penalty against what three categories of defendants?
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1. children under 18 when the offense occurred
2. defendants who are mentally retarded 3. defendants who are presently insane |
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Jeopardy attaches when, for the following procedures:
1. jury trial 2. bench trial 3. guilty plea 4. grand jury 5. civil proceedings |
1. attaches when jury is sworn
2. when first witness is sworn 3. when court accepts plea unconditionally 4. jeopardy does not attach 5. jeopardy does not attach |
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Two offenses are NOT the same offense for purposes of double jeopardy if:
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each has an element the other does not.
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Double jeopardy does NOT by retrial for the same offense by...
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different sovereigns - different states and state vs federal are different sovereigns; municipalities are not different sovereigns from the states the are in
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Four exceptions to the double jeopardy rule that permit retrial:
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1. hung jury
2. mistrial for manifest necessity (ex, D needs to be hospitalized) 3. retrial after successful appeal 4. breach of plea bargain by D |
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The 5th Am privilege against compelled testimony/self-incrimination may be asserted by...
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anyone, in any kind of proceeding where the person testifies under oath - party, witness, defendant, civil or criminal, administrative or congressional hearings
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If the 5th Am privilege against compelled testimony is not submitted at the first opportunity...
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it is forever lost
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To what does the 5th Am privilege against self-incrimination apply?
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It applies to testimony and protects against compelled testimony; it does not apply to states' use of our bodies.
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Three ways to eliminate the 5th Am privilege against self-incrimination:
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1. prosecutorial grant of "use and derivative use" immunity, so that prosecutors cannot use your testimony or anything derived from it to convict you 2. by a defendant taking the stand, the D waives the ability to take the 5th as to anything properly within the scope of cross-examination 3. the privilege is unavailable if the statute of limitations has run on the underlying crime
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