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56 Cards in this Set
- Front
- Back
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Terry Stop
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a brief detention or "seizure" for the purpose of investigating suspicious conduct
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What circumstances allow warrantless searches?
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Random drug testing
gov employees desks/files students effects in public schools border searches |
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What do Inventory searches need to be Const?
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The regulations governing them must be reasonable in scope and the search itself complies w/ those regs.
Common w. arrestees booked into jail and vehicles when they are impounded |
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What is required to seize 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 and 3) the criminality of the item must be immediately apparent |
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Automobile exception to warrant requirement
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Officers need PC to believe that contraband or evidence of crime will be found in the vehicle
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When is consent an exception to the warrant requirement?
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It is Voluntary and intelligent
by a person w/ equal right to use or operate/access to the property |
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When can a warrantless search be valid?
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8 exceptions to warrant req: ESCAPIST
Exigent circumstances Search Incident to arrest Consent Automobile Plain View Inventory Special Needs Terry Stop & Frisk |
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4th Amend
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Right of the ppl to be secure in their persons, houses, papers, and effects against unreas. searches and seizures shall not be violated, and no warrants shall issue but on PC, supported by oath or affirmation and particularity describing place to be searched and person or things to be seized
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4th amend limits Gov action
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it does not restrict the acts of private parties unless the private person is acting as an "instrument or agent" of the gov"
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Req. for 4th amend to apply
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Gov actor
reasonable expectation of privacy and either police didn't have valid warrant or they executed an invalid/warrantless search |
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Protected areas of Privacy (4th amend protects)
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Persons (bodies)
Houses (hotel room) Papers (personal correspondence) Effects (purses, backpack) Home based privacy includes area of domestic use and immediately surrounding house: curtilage |
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Certain Categories that are sufficiently public - carry no reas expect of privacy, even if searched or seized by gov agent
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Patty and A guy visit owen hen oliv
Paint scrapings on outside of car Account records held by bank Airspace Garbage Voice Odors (from car luggage) Handwriting Open Fields |
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to have standing personal privacy rights must be invaded - not those of 3rd party
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own premsies, renters have standing, overnight guests have standing to areas they'd have access to.
If own property only in area from which prop seized. If using residence for business -NEVER if passnger in car only reas in item or area searched/seized. |
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Does a search warrant satisfy 4th amend?
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supported by prob cause and particularlity,
if not did police rely on defective warrant in good faith. was the warrant properly executed by police |
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ARREST
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An unreasonable seizure of persons. Seizure is an objective test - not free to leave.
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When is a person seized by police?
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when the officer, by means of physical force or show of authority, terminates or restrains freedom of movement; there is no seizure w/o actual submission.
Reas person would believe not free to leave. Fee free to decline request/terminate the offer. |
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Stop and Frisk
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Temporary detention - not an arrest, but may const. seizure
Test - whether officer, by means of physical force or show of authority, has in some way restrained the liberty of the citizen. (physical restraint or an order to stop) |
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Proper arrest
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founded on PC - may be made w/ or w/o warant.
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Arrest warrant
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Issued by a detached and neutral mag upon a finding of PC that crim committed and it was particular def who committed crime.
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Deficient Warrant
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does not invalidate an arrest as long as the officers making the arrest had other grounds on which to base PC for arrest
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Search warrant
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issued by neutral/detached mag based on PC, supported by oath or affidavit, and must describe w/ particularlity the places to be searched and items to be seized.
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Search warrant: showing of PC
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facts can come from:
police observations info from known inform or unkown inf independent verified evi seized during stops based on reas suspicion, evi in plain view, during consensual searches |
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Search warrant:Particularity
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Places to be searched and items to be seen - describe w/ particularity
allegation prop sought is fruit, instrumentality, evi fo crime don't need to specify manner of execution |
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Knock and Announce
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Officer executing warrant must announce his purpose before entering. Failure invalidates arrest, but exclusionary rule doesn't apply
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Officer's good faith saves a defective search warrant unless:
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Affidavid egregiously lacks PC - no reas officer would rely
Warrant facially deficient in particlarlity. Knowing or rekcless falsehood in affidavid mag relied on mag biased in favor of prosecution |
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Effect of unlawful arrest
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has no bearing on subsequent crim prosecution - not a defense to crime charged
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Search
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violation of a reas. expect of privacy by gov conduct.
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Automobile: search
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Lesser expectation of privacy in auto.
Officers must articulate reas susp. of law violation. May use pretextual stops - PC of traffic law to investigate other law w/ no RS. checkpoint stops - nuetral articulable standard purpose relating to automobil issue. |
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Gov informants: assume the risk
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no reas expect in convos with informants or undercover officers. Or one call consent to wiretapping. Run risk if turn info to 3rd party may disclose to gov.
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Warrantless searches are
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Per se unreasonable, unless satisifes one of 7 exceptions to warant req. ESCAPIST
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Search incident to lawful arrest
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Lawful arrest justifies a warrantless contemporaneous search of the person arrested and the immediate surrounding area. (wingspan) from which a weapon may be concealed or evi destroyed. If the arrest is invalid, any search made incident to it is likewise invalid.
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Search incident to lawful arrest in home
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can search closets and other spaces immediately adjoning place of arrest from which attack could be launched.
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Scope of search incident to arrest
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right to search pockets of clothing and open containsrs found or immediatly assocated w/ person so long as containers are large enough to conceal weapon or evi of crime
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Vehicle search incident to arrest
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officers must demonstrate (i) arrestee is w/in reaching distance of passenger compt at tiem of search and may pose actual threat to officer saftey or need to preserve evi OR (ii) it is reas that evi of the offense of arrest might be found in vehicle.
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Impounded vehicles
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may be searched, including closed containers, as part of routine inventory search.
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Exigent circs.
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Warrantless entry to a house/bus is unlawful nless gov shows PC and exigent circs.
Use totality of circs test. Police may secure premises for reas time to get warrant and may detain occupants. |
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What are exigent circs?
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Hot Pursuit and Evanescent Evi
Hot pursit - PC that individ commited felony police can follow him into private building. evi - reason apprehension delay would result in danger of evi desruction, threaten saftey or suspect flee |
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What is a Terry stop justified by?
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a RS based on articulatable facts that detaines are or were involved in crim activity.
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Frisk (terry)
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pat down of outer clothing/body if has RS suspect involved in crime or frisk necessary to prevent saftey of others.
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When can an offer seize evidence from frisk?
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Plain feel - physical characteristics make identity immediately obvi
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Auto exception
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4th doesn't req warrant to search auto if PC to believe it contains contraband or evi of crim activity. Can search anywhere in car with PC. may extend to passengers.
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Plain view doctrine
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Where reas expect of privacy, officer may seize items in plain view, even if not named in warrant if: on premises for lawful purpose, and incrimnating character of evi immediately avail
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Consent
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Consent can eliminate need for police to have PC as well as to obtain warrant.
Must be voluntary - no threat of harm/compustion, TOC. Police can't assert false authority. |
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Administrative searches
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warrant usually required; but PC is less stringet - evidence of statute or violation or reasonable plan suported by public interest supports warrant. May use them to investigate crim acitivty.
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Admin searches valid w/o warrant:
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Ppl entering airplane boarding area
business in highly regulated industry - liquor gun store, junkyard oral statemet by writeap for national security Students by public school officicials if reasonable grounds special needs, inventory, routine border, vechicle, roadblock, factory, gov emploee, traveler, paroolee, |
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PC
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fair probability or substantial chance
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Wiretapping: req for warrant:
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limited to short period of time, PC that specific crime about to be committed, name person/s, describe particularity convos, include provisions for termination
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The Exclusionary Rule
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Evi obtained in violation of 4, 5, 6 amend may not be introduced at trial to prove guilt. 4th amend - unlawful search cant constitute prof against V of search - fruit of piosnous tree/derivative evidence
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Exclusionary rule applies, when can derivative evi be admissible:
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Inevitable discovery; Independent Source;Attentuation - (passage of time/internveing event); Good Faith, Isolated police neg, knock and announce, in ct. ID
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harmless error
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if trail ct. wrongfully admits illegially sezed evi, appellate ct can refuse to order new trial if error harmless BRD. denial of right to counsel never harmless
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5th Amend
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no person shall be compelled in any crim trial to be a witness against himself. Applies to states via 14th amend.
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Priviledge against compulsory self-incrim/5 amend: testimonial evidence
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Priv does not apply to non-testimonial physical evi. blood/, urine, handwriting, breathalyzer ec.
Not bus papers. Testimonial evi must be incriminating. |
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5th amend waive privilege:
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D waives by taking the witness stand and succumbing to the prosecution's questions
W waives by disclosing self-incrim info. |
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Miranda
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Any statement, obtained as the result of custodial interrogation may not be used against suspect at subsequent trial unless police provided safeguards
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Custodial interrogation
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questioning intitated by law enforcement officers after a person has been taken into custody
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When is a person in custody?
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substantial seizure - formal arrest or restraint on freedom of movement not free to leave or otherwise deprived of his freedom in any significant way.
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