Criminal Procedure - Fourth Amendment

Front 1

Where 4th Amendment applies

Back 1

to government action only

Silver Platter Doctrine

Search and seizure subject to 4th amendment

REASONABLENESS

Front 2

Silver Platter Doctrine

Back 2

private party, acting on their own, gets evidence that government wants to introduce in criminal case--no 4th Amendment

Exception: when private party acts at discretion of gov't agent or pursuant to official policy

Front 3

Seizure

Back 3

Reasonableness Requirement:
--for any government seizure of person or property

Front 4

Seizure of Persons - Generally

Back 4

RPP in this position would not feel free to leave or otherwise terminate the police encounter

occurs when police use physical force to restrain suspect or when make a show of authority followed by submission

if suspect located in naturally defined location (e.g., bus): whether RPP would feel free to terminate encounter

Difference between seizures and arrests: purpose and duration

Front 5

Terry Stop
(Seizure of Persons)

Back 5

A “brief investigatory seizure” because police require the suspect to interact with them, therefore triggering the Fourth Amendment.

deals with investigating reasonable suspicion

permissible duration: what is necessary to confirm or deny suspicion
--if confirmed: the suspicion blossoms Into probable cause which justifies arrest
--if denied: seizure must be terminated

for reasonable suspicion, informant's prediction is sufficient (dont need insider access)

can request person's name if related to purpose of stop

Front 6

Seizure of Property

Back 6

police take action that results in some meaningful interference with possessory interest.
--if control: seized
--if put something on property that doesn't interfere: not seized

Front 7

Search

Back 7

government intrusion a reasonable expectation of privacy (REP)

The defendant manifests: a subjective expectation of privacy by making an effort to shield the place, thing, or activity from the public.

The expectation is objectionably reasonable because It is an expectation society is willing to recognize.

No REP: if object held out to the public
--if the person knowingly exposes something to the public, the police seeing it, hearing it, or smelling it is not a search.
--false friend doctrine (recorded)--assume risk that other person will expose

Front 8

Challenging S & S

Back 8

If warrant to S or S creates reasonableness presumption.

Defendant has burden of proof to rebutt:
1. warrant was not based on probable cause
2. magistrate not detached and neutral
3. warrant failed to describe with particularity the thing to be searched or seized.

Front 9

Good Faith Exception
(Search & Seizure)

Back 9

If police execute warrant in good faith, even if warrant is invalid, then evidence still admissible.

Front 10

Warrants (Issuing)

Back 10

Valid warrant =
1. neutral and detached magistrate
2. probable cause
3. describe with particularity the thing to be searched and seized

information (affidavit) must provide relevant facts that conclude that more probable than not (1) person committed crime; or (2) evidence will be found in particular place
--info can't be stale

--method of intrusion must be reasonable (e.g., cannot get warrant to remove bullet from a live body)

Front 11

Warrant (Execution)

Back 11

Must knock and announce
--Exception: when reasonable suspicion to believe that it will endanger them, lead to destruction of evidence, or suspect could flee

If violate then violates 4th Amendment BUT DOES NOT trigger exclusionary rule

Front 12

Probable Cause

Back 12

"fair probability" - facts and circumstances that warrants to a reasonable person the individual in question committed the crime to support arrest or specific items regarding criminal activity will be found at a certain place

objective (subjective intentions of police doesn't matter)

always required to engage in a full scare intrusion or an arrest

often established based on police observation, eye-witness accounts, forensic evidence or test, or suspect's own admissions or conduct, or tip.

Front 13

Tip from Informant
(Probable Cause)

Back 13

totality of circumstances test to determine the reliability of the tipper

Three factors:
1. informant veracity
2. basis of knowledge/foundation for tip
3. police investigation that corroborates facts in tip and accuracy of informant's prediction

informant ID bolsters reliability

informant provided predicted info only a person with inside access would know

Front 14

Reasonable Suspicion

Back 14

Belief based on articulable information, that is more than mere hunch, used by RPP or officer indicating suspect has or will engage in criminal activity.

level of certainty that will justify only brief investigatory seizure or cursory protected frisk--never arrest of full blown evidentiary search

reasonable suspicion is OBJECTIVE, not subjective (no hunch, instinct)--so must have verifiable, objective fact to support suspicion

Front 15

Arrests

Back 15

Probable cause always required.

can use informant tip that satisfies probable cause for arrest (if meets totality of circumstances)

Arrest warrant required for police to arrest someone in own home:
--Exceptions:
1. consent
2. exigent circumstances to enter

Front 16

Exigent Circumstances re: Arrest in Home

Back 16

--arrest outside the home is thwarted because suspect retreats into home

--insufficient time to secure warrant--delay lets suspect flee or destroy evidence

--arresting officer in hot pursuit and probable cause for valid arrest

--The officer did not: deliberately create the exigency just to avoid obtaining a warrant

Front 17

Seizure of Property

Back 17

Warrant always required unless property is in plain view

Front 18

Plain View
(Seizure of Property)

Back 18

1. Police in lawful vantage point to observe the item.

2. incriminating of item immediately apparent and establishes probable cause to seize

3. lawful access to point of seizure--can reach out to take without searching

This rule is an exception to the warrant requirement for a seizure--never justifies warrantless search for contraband

Front 19

Searches

Back 19

Limited to what is described in warrant.

Plain view applies

A search warrant for a premises carries with it the right to detain persons in the home during the search but not the right to search those persons unless they are listed in the warrant

Front 20

Searches Incident to a Lawful Arrest (SITLA)

Back 20

A warrantless search of the arrestee and the area within his immediate control (the wing-span) is automatically permitted following a lawful arrest.

Cannot conduct search incident to citation (even if citation would allow arrest)

there is no requirement to individually justify each SITLA

SITLA: automatic!

Front 21

If suspect arrested in home
(SITLA)

Back 21

SITLA limited to area within lunging distance (not entire house)
Exception:
--police have reasonable basis to fear ambush--may do cursory protective sweep (Terry Sweep)
--> evidence in plain view is good

Front 22

If suspect arrested in car
(SITLA)

Back 22

Can automatically search the person

If arrestee has genuine access to interior or car after arrest, then scope of SITLA includes interior and containers within.

If no access after arrest: can only search interior if reasonable belief that evidence related to arrest is in the car.

Front 23

Automobile Exception
(Warrant)

Back 23

Police can search any auto (broad) without warrant if:
1. in a location where can be moved or proximate to public road
2. and have probable cause

Applies to all containers within vehicle

Can seize, bring to impound, and search later

Front 24

Special Needs Doctrine

Back 24

Police permitted to use checkpoint to do brief seizures and limited searches with no individualized suspicion or warrant in response to public safety danger that cannot be addressed by complying with normal individualized suspicion and warrant requirement.

Must be based on fixed formula (not discretion of police)

Must be conducted in a location and manner minimizing citizen anxiety.

Can seize any contraband that comes into plain view

Cannot randomly stop vehicles to check registration (except at border)

Ex: sobriety, recently escaped prison inmates, terrorism, searching for suspects of a recent crime

Front 25

Consent
(Warrant & Probable Cause)

Back 25

Exception to warrant and probable cause requirements

Reasonable even if officer asks for consent based on pure hunch

must be knowing and voluntary based on totality of circumstances.

invalid if fake warrant, duress, fraudulent, or pursuant to unlawful police threat.

not required to inform person of right to decline consent

valid consent can be implied--e.g. TSA or engaging in regulated business

Scope: usually implied by request or item officer indicates he is looking for

absolute right to refuse to consent or to withdraw once granted, or to limit scope--must clearly express

if get consent after unlawful seizure then fruit of poison tree

Front 26

Third Party Consent
(Warrant & Probable Cause)

Back 26

Anyone who has joint control of a shared premises may consent to valid search--any evidence seized in plain view may be used against other occupants.

Scope: common areas, not private one where defendant has exclusive control

Search ok if reasonable officer has reason to believe grantor has authority to grant search

Co-tenant: if co-tenant present and objecting, trumps consent by other co-tenant

Front 27

Hot Pursuit
(Warrant & Probable Cause)

Back 27

Exception to warrant requirement

if police in actual hot pursuit of suspect

private dwelling: can search if suspect enters when fleeing--even if not suspect's

can execute warrantless arrest in the home & can seize any contraband in plain view

Front 28

Exigent Circumstances
(Warrant & Probable Cause)

Back 28

Exception to warrant requirement

When situation indicates waiting to obtain a warrant will result in imminent:
1. evidence of destruction
2. suspect escape
3. risk to police or others in area

Limits:
--need probable cause that the kind of evidence is easily destroyable or likely to disappear before warrant obtained
--procedure for seizing is reasonable (cannot go into live body to retrieve bullet)

Front 29

The Terry Search (Frisk)

Back 29

Cursory search for weapons (or anything that creates an imminent danger to officers or others in close proximity

Justified only when reasonable suspicion that someone is armed and dangerous

Scope: strictly limited to cursory inspection of outer clothing to confirm or deny

Plain touch variant of plain view doctrine

Front 30

Plain touch variant of plain view doctrine
(Terry Search - Frisk)

Back 30

If feel something during frisk that is weapon or any other contraband--can seize

But, if have to manipulate object suspects is contraband then exceeds scope of frisk

Extended to:
--auto
--interior of home

Front 31

Administrative Search

Back 31

Exception to warrant and probable cause

no criminal cause or purpose--more like an agency compliance inspection (looking for health and safety)

Agency inspections

Front 32

Agency Inspections
(Administrative Search)

Back 32

Primary purpose is health and safety (not discovering a crime) so only need reasonable suspicion (not probable cause)

normally, must get administrative warrant to search private home or business

Exception: air port screening, border searches--> don't even need reasonable suspicion
BUT: do have to have probable cause to disassemble
--can detain until bowel movement

Front 33

Remedies

Back 33

Just because a search or seizure violates 4th amendment doesnt mean that you get exclusion

Standing: violation must be directed at defendant's rights

Get exclusion if no exception applies

Front 34

Standing

Back 34

must be personally the victim of violation of rights:
1. whether person claiming objection has REP at that place
2. cannot vicariously assert someone else's constitutional rights

guest in home:
--overnight: standing
--not overnight: no standing

Front 35

Exclusionary Rule

Back 35

If standing to complain about search or seizure then have standing to assert rule

prohibits government from introducing evidence obtained as direct or derivitive result of unreasonable s & s

Front 36

Fruit of the Poisonous Tree Doctrine

Back 36

Additional evidence from initial illegality, including oral statements and physical objects

but-for connection

violation of Miranda waiver and warning not connected to poisonous tree
--> can use confession to further investigation/case but not in trial in case-in-chief

Front 37

Exceptions to Fruit of Poisonous Tree (List)

Back 37

1. independent source
2. inevitable discovery
3. attenuation

Front 38

Independent Source
(Exception - Fruit of Poisonous Tree)

Back 38

If obtained from lawful, independent source then admissible--even if police acted illegally to confirm location of evidence

no but for link between seizure of evidence and constitutional violation

Front 39

Inevitable Discovery
(Exception - Fruit of Poisonous Tree)

Back 39

If police would have discovered evidence through independent source, then admissible.

Look to see if the gears of independent discovery had already been set in motion

Front 40

Attenuation
(Exception - Fruit of Poisonous Tree)

Back 40

Not admissible of too distant from constitutional violation.

Turns on flagrancy of violation and distance between evidence and violation.

Often assessed when police get a confession following an unlawful arrest (unless follows immediately after arrest)

1. different location
2. time passed
3. different officers
4. valid waiver

Front 41

Impeachment

Back 41

Exclusionary rule doesn't apply when using tainted evidence to impeach--cant hide behind it to lie

Front 42

Good Faith Exception

Back 42

When police act on good faith reliance on warrant that is subsequently invalid, evidence is not excluded

objective standard: reasonable officer would have relied on

Exception:
1. this exception will not apply where police lie or mislead magistrate to get warrant
-->impute misconduct to all in chain
2. warrant so facially defective no reasonable officer would rely
3. reasonable officer would know magistrate is not neutral and detached

Front 43

Voluntariness
(Statements & Confessions)

Back 43

Statement is inadmissible for any purpose if from coercion overbearing defendant's free will.

Test: totality of the circumstances
1. age, health, education, intelligence, gender, culture, etc.
2. location, duration, physical conditions
3. how many officers and how did they behave; suspect's experience with criminal justice system
4. deception and trickery

if coerced, cannot be used to impeach

no requirement to be in custody when statement is made

Front 44

Violation of 6th Amendment Right to Counsel

Back 44

Massiah Rule:
--initiating a formal adversarial process triggers 6th amendment right to counsel during all critical stages (physical line ups, prelim hearings, trial)
--if get a deliberate elicitation of a pretrial statement, that is critical stage so triggers right (express or implied questioning by police)

Exception: if attorney present or executed a knowing and voluntary waiver

Defendant does not have to know they are being questioned by government agent

False friend is permissible if pre-adversarial proceeding.

Only concerns offense charged with--police can continue questioning on other charges, even if factually related

Front 45

5th Amendment

Back 45

Don't have to testify when:
1. have a real and substantial fear that testimony will result in self-incrimination or contribute to criminal conviction in the US
2. must assert the privilege when refusing to testify

Only applies to testimonial evidence (cannot refuse to provide blood, fingerprints, etc.)

Waiver: if decide to testify

Government can grant immunity:
1. use/testimonial immunity
2. transactional immunity

Front 46

Use/Testimonial Immunity
(5th Amendment)

Back 46

Prohibits use of witness testimony or any evidence derived from testimony against witness

fully supplants PASI--permits government to have the court force the witness to testify.

does not bar subsequent prosecution of witness if evidence is unrelated to that particular immunity.

Front 47

Transactional Immunity
(5th Amendment)

Back 47

Prohibits any future prosecution of witness regarding the transaction, no matter where the evidence came from.

(broad)

Front 48

Miranda

Back 48

Because custodial interrogation is inherently coercive, cannot use statements from questioning while in custody in case-in-chief unless neutralize inherent coercion with Miranda warning.

To establish valid waiver, advise suspect of rights giving up by agreeing to answer questions

Front 49

Custody
(Miranda)

Back 49

Objective standard of what is custody - if reasonable belief by person (subjective intent of officer not controlling)--doesn't have to be formal arrest

focuses on reasonable suspect

Terry Stop is NOT custody

Front 50

Interrogation
(Miranda)

Back 50

Words and actions a reasonable officer would anticipate would be likely to elicit a criminal response--focuses on reasonable officer

If know suspect is vulnerable and exploit then unreasonable

Has to be product of questioning--if voluntary or spontaneous, not Miranda--no questioning

Front 51

Limits & Exceptions to Miranda

Back 51

Can still get other evidence from an inadmissible statement.

Miranda does not trigger fruit of the poisonous tree

Public Safety: if primary purpose of questioning is to protect the police or public, then admissible no matter what

Can use Miranda-violating statements to impeach

Front 52

Waiver of Miranda

Back 52

Must be knowing and voluntary

Must indicate suspect understood rights and engaged in course of conduct indicating voluntary waiver
--orally or in writing understand rights AND are willing to answer questions without lawyer
--prosecution must prove suspect acknowledged understanding
--can never be presumed from silence
--don't have to be warned of possible charges facing
--police can repeatedly ask for waiver

If get waiver, only strong evidence confession is voluntary--still possible to comply with Miranda but violate voluntariness

Front 53

Special Rules During Interrogations

Back 53

Need not repeat Miranda warning just because of a brief break or because switch officers.

If unequivocal request for attorney, must cease questioning.
--such request can be made at any point

If invoke right to silence: police must wait sufficient amount of time before resuming and asking for new waiver

If invoke right to counsel: cannot resume unless attorney present or defendant re-initiates interrogation

2 weeks after return to normal environment, can re-initiate questioning but need new waiver

Front 54

Miranda vs. 6th Amendment

Back 54

Miranda--not offense specific so broader protection

6th: offense specific so can be f'ed

Front 55

Effect of Miranda on Subsequent confessions

Back 55

Not fruit of poisonous tree so if made in violation of Miranda
But Miranda cannot be used as a coercive tactic

Front 56

Fruit of Poisonous Tree
(statements)

Back 56

If but-for connection between prior constitutional violation and suspect's statement, statement may be inadmissible unless meets exception:
1. attenuation
--more flagrant constitutional violation , the harder to attenuate
--if arrest is unreasonable because no valid warrant, but had probable cause, normally dissipated by valid Miranda waiver so long as statement no elicited immediately following arrest
--if arrest unreasonable because police didn't have probable cause, much more difficult to dissipate so probably need more than Miranda waiver