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29 Cards in this Set
- Front
- Back
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NY's indelible right to counsel attaches when…?
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whenever there is significant pre-charging judicial activity such that the suspect can benefit from the presence of a lawyer.
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Knock-and-Announce requirement:
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when executing a warrant, the police must knock and announce their presence and purpose before entering. However, this requirement is excused if a reasonable officer would consider doing so to be dangerous, futile, or would inhibit the investigation.
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Evanescant evidence:
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evidence that would disappear or dissipate in the time it would take to get a warrant
Exception to warrant requirement |
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Search Incident to Lawful Arrest's Scope
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Wingspan if at same time and place of the lawful arrest
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NY exception to SITA
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can only search containers within wingspan if police believe suspect is armed
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NY exception to Automobile SITA
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cannot search containers in car once the suspect is out of the car
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Standard for Validity of Consent
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voluntary and intelligent. Doesn't have to be knowing
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NY Plain View Exception for Obscene Material
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Can seize only if you have prior judicial authorization
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Terry Stop standard
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Officer has articulable facts giving rise to a reasonable suspicion that criminal activity is present
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Terry Frisk standard
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specific and articulable facts give rise to reasonable suspicion that person is armed and dangerous
Allows pat-down of body and outer-clothing for weapons OUT OF A CONCERN FOR OFFICER SAFETY |
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NY exception for Terry Frisk Seizure
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Can only seize weapons. Nothing else.
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When does Terry Kick IN (free to leave)
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Once is not free to leave when a reasonable person would not feel free to leave or refuse questions asked.
Factors: (1) officer's tone and demeanor; (2) whether officer brandished a weapon; (3) whether told he could leave |
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NY Seizure for Chase
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Chase alone = seizure.
Under Fed Const., must submit to officer's authority or be physically restrained before you are seized |
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Is an officer's reasonable mistake when executin g asearch warrant = exclusionary rule?
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No.
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Nullfying Causal Link for Fruit of the Poisonous Tree
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(1) Independent source (found it separately through lawful means);
(2) inevitable discovery (police would've necessarily found it); (3) Attenuation (free will is restored through the passage of time and intervening events) |
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How can waivers of indelible right to counsel be made?
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Only in the lawyer's PRESENCE
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When is indelible right to counsel violated?
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If in custody and (1) police know you're represented by a lawyer ON THAT PARTICULAR CHARGE, then
Can't question you about that charge or any other charge W/O LAWYER BEING PRESENT |
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Miranda applies to?
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In Custody Interrogation
IN CUSTODY = environment of POLICE domination and coercion such that a reasonable person would believe his freedom of action is limited in a significant way INTERROGATION = conduct police know or should reasonably know will illicit an incriminating response |
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what happens if parent Is kept from a child in NY
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use of deception or concealment to keep a parent from a child < 16 whos' being interrogated = Miranda waiver may be deemed invalid.
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Standard for Waiver of Miranda
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Right to silent: Police must scrupulously honor the first request and get a valid waiver before initiating questioning
Right to lawyer: waiver is invalid unless the suspect initiated the conversation |
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Are physical fruits of invalid Miranda confession admissable?
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Yes if voluntary
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What is the standard for Due Process Violation?
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Involuntariness from police coercion
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When is Due Process violated for pre-charging lineups?
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It's so UNNECESSARILY SUGGESTIVE so as to result in a SUBSTANTIAL RISK OF MIS-IDENTIFICATION
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How long do you have to assert insanity defense
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Within 30 days from entering not guilty plea
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Proper Plea Taking Conversation
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(1) advise D of the nature of the charge;
(2) Advise him of his right to proceed to trial with a jury; (3) Advise him that by pleading guilty he is waiving his right to trial by jury; (4) max authorized sentence and any mandatory minimum |
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Is there a right to confront witnesses?
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Yes, 6th Amendment. BUT WAIVED IF to do so would contravene an important public policy
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NY Double Jeopardy
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Attaches to all crimes in the same transaction UNLESSXX(1) crimes have substantially different elements;
(2) each crime has an element different from the other and they vindicate different harms; (3) different victims; (4) one is for possession and the other is for use |
