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39 Cards in this Set
- Front
- Back
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In determining whether a search and seizure is governed by the 4th amendment, what two questions must be asked?
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1. Is there government conduct?
2. Did the search/seizure invade an individual's reasonable expectation of privacy? |
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What are the 3 categories of government actors?
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a. Publicly paid police on or off duty
b. Private citizens but only if acting at the direction of the police c. Privately paid police but only if deputized with the power to arrest |
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What are the protected areas of privacy?
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1) Persons
2) Houses (including hotel rooms) 3) Papers; and 4) Effects |
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What are unprotected items?
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1) Paint scrapings
2) Account records 3) Airspace 4) Garbage a) In NC - depends on where the garbage is. 5) Voice 6) Open Fields 7) Handwriting 8) Odors |
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Who has standing to challenge a search?
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Owners of the premises searched
Residents of the premises searched Overnight guests in the premises search - always have authority as to areas the guest expected to access Owners of property seized - if you have a reasonable expectation of privacy in the area from which the property was seized |
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What are the questions to ask in determining whether a search and seizure that is governed by the 4th amendment satisfies constitutional requirements?
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1. Was the search authorized by a facially valid warrant?
2. Does an officer's good faith save the defective search warrant? 3. Was the search warrant properly executed by the police? 4. Is the search valid under any of the 8 exceptions to the warrant requirement? |
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What is required for a facially valid warrant?
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Probable cause and particularity.
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When won't an officer's good faith save a defective warrant search?
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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 egregiously lacking in particularity that no reasonable officer would have relied on it. 3. The officer or district attorney 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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What issues are necessary to focus on in determining whether the search warrant was properly executed by police?
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Did the officers exceed the scope of the warranty?
Did the police comply with the "knock and announce" rule? |
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What are the 8 exceptions to the warrant requirement?
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Exigent Circumstances
Search incident to arrest Consent Automobile Plain view Inventory Special Needs Terry "stop and frisk" |
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What are exigent circumstances?
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Evanescent evidence - evidence that would dissipate or disappear in the time it would take to get a warrant.
Hot pursuit of fleeing felon - hot pursuit allows police to enter a suspect's home or that of a 3d party into which he has fled to look for him. During hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible. |
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What are the justifications for, timing of, and geographic scope of searches incident to arrests?
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Justifications - (1) officer safety; (2) need to preserve evidence
Timing - search must be contemporaneous in time and place with the arrest. Geographic scope - wingspan of the person arrested (body, clothing, any containers/effects) |
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What is necessary for consent to a search?
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Consent must be voluntary and intelligent. The fact that the police do not tell someone that she has the right to refuse consent does not make her consent invalid.
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What is necessary in order to search an automobile?
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Police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle.
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What are the 3 requirements for seizure of an item in plain view?
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1) Lawful access to the place from which the item can be plainly seen.
2) Lawful access to the item itself. 3) The criminality of the item must be immediately apparent. |
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When are inventory searches ok? When most often used?
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Inventory searches are constitutional, if the regulations governing them are reasonable in scope and the search itself complies with those regulations.
1) When arrestees are booked into jail 2) When vehicles are impounded |
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What are some special needs that create an exception to the warrant requirement?
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Random drug testing
Probationers' homes Government employees' desks and files Students' effects in public schools Border searches |
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What is a terry stop?
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Brief detention or seizure for the purpose of investigating suspicious conduct.
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What is a terry frisk?
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A patdown of the body and outer clothing for weapons.
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What is the evidentiary standard for terry stops and frisks?
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The evidentiary standard for terry stops and frisks is reasonable suspicion which is less than probable cause.
1) In the context to terry stops, the standard requires specific and articulable facts that makes an officer believe that criminal activity is present. 2) In the context to terry frisks, the standard requires specific and articulable facts that suggest a suspect is armed and dangerous. |
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If there hasn't been a valid warrant or exception, what is the question to ask?
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can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant in court?
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What is the exclusionary rule?
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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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When can evidence from an warrantless search and seizure be introduced by the prosecution?
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To impeach the defendant's testimony on cross-exam.
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What exceptions to the exclusionary rule are there?
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a. Grand jury proceedings
b. Civil proceedings c. Parole revocation hearings |
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What is the final question to ask?
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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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What is fruit of the poisonous tree?
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evidence derived by exploiting prior unconstitutional conduct and is inadmissible in the prosecutor's case in chief.
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How can the fruit of the poisonous tree be nullified so as to admit evidence? What 3 doctrines?
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a. Independent Source doctrine - applies where there is a source for the discovery and seizure of the evidence that is distinct from the original illegality.
b. Inevitable Discovery doctrine - applies when the evidence would necessarily have been obtained by the police lawfully. c. Attenuation doctrine - this doctrine admits derivative evidence where the defendant's free will has been restored through the passage of time and intervening events |
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What are the 4 requirements for a valid wiretapping warrant?
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a. Probable cause
b. Persons - name the persons expected to be overheard c. Conversations - particularly describe conversations to be overheard d. Time - must be for a strictly limited time period. |
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Rule regarding eavesdropping?
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if you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4th amendment claim; you assume the risk that the other party will not keep your conversation private.
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what are the 3 federal constitutional challenges that can be brought to exclude a confession?
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1. Due Process Clause of the 14th Amendment
2. 6th Amendment right to counsel 3. 5th Amendment Miranda doctrine |
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What is the standard for excluding a confession under the DP clause of 14th am?
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Involuntariness - the confession is not the product of police coercion. If it isn't, it won't be excluded.
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When does the 6th am right to counsel attach and what does it apply to?
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Attaches when the defendant is formally charged, not upon arrest.
Applies only to the specific charges filed against you. |
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What are the core Miranda warnings?
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a. Right to remain silent
b. Anything you say can and will be held against you in a court of law c. Right to an attorney d. If you cannot afford one, you have the right to have an attorney appointed for you. |
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When are Miranda warnings necessary?
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1) Custody - a suspect is in custody, for Miranda purposes, if the atmosphere is characterized by police domination and coercion such that his freedom of action is limited in a significant way.
2) Interrogation - the 5th amendment Miranda doctrine defines interrogation as any conduct the police knew or should have known was likely to illicit an incriminating response. |
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What are the two core requirements for a valid Miranda waiver?
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1) Knowing and Intelligent - a Miranda waiver is knowing and intelligent if the suspect understands the nature of the rights and the consequences of abandoning them.
2) Voluntary - a Miranda waiver is voluntary if it is not the product of police coercion. |
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What are 3 types of pretrial identifications?
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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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What are the 4 requirements for a plea-taking colloquy that the judge must address to the defendant on record?
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1. Nature of the charge
2. Maximum authorized sentence and any mandatory minimum 3. Defendant has the right to plead not guilty and proceed to trial 4. By pleading guilty, defendant is waiving trial and will proceed directly to sentencing |
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When may a defendant withdraw a guilty plea after sentencing?
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1. There is a problem with the plea-taking colloquy
2. There is a jurisdictional defect 3. Defendant prevails on an ineffective assistance of counsel claim 4. Prosecutor fails to fulfill his part of the bargain |
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When does Double Jeopardy attach?
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1. Jury trial - when the jury is sworn
2. Bench trial - when the first witness is sworn 3. Guilty plea - when the court accepts the plea unconditionally |
