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44 Cards in this Set

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  • Back
What is the 4th Amendment?
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures ( reasonableness clause) shall not be violated, and no warrant shall issue, but upon probable cause, supported oath and affirmation, and particularily describing the place to be searched, and the persons or things to be seized.
what so Liberlists and Non liberalist say?
Liberalist-Reasonableness Clause and Warrant Clause are connected.
Non-liberal Rehnquist- consider Reasonableness Clause and Warrant Clause are separate.
What economic class do 4th Amnd issues ussully occur?
Lower social economic classes.
What is the exclusionary Rule?
Evidence obtained in violation of defensants right may not be used in trial.
How do you determine whether a person has Standing to raise a 4th Amendment challenge?
A. If a government agent invades privacy.
B. Right is personal.
What is the rule for Standing
In order to have Standing one must claim a possessory or legitimate privacy interest in area that is searched or seized.
What must be looked at for privacy/
Totality of the circumstances.
What is Curtilage?
area closely associated with the home that extends social activity at the home.
what are examples oc Curtikage?
A. proximity
B.whether it is included in an enclosure
c. Nature of the use(garage)
Steps taken to protect land.(fence)
What was a result of the Katz v. U.S case
Zone of privacy Test
What is the rule for Search?
-Defendant must exibit an atual expectation of privacy.
-It must be what society deems reasonable.
What are some example of things not proteceted/ protected?
notpro-electronic tracing device, becuase everyone can see you
-dog smell search-smell
exibits out in the open.
Protected- searching with infrared light(not allowed to pull heat out of home.)
What is the rule for reasonable search?
-All warrantless searches are unreasonable except for a few distinct exceptions
-Based on the totality of the circumstances we determine if reasonable/
What are the exception of a reasonable search without a warrant?
1)Extingent circumstances
2)Plain veiw/smell/feel
4)4th waiver
5)Automobile exception
6) Incident to Lawful Arrest
7)Inventory Search
What sre th rules for the Plain veiw/fell/smell exception?
-Officer must have a legal right to be there in protected area.
-evidence must actully be in plain view w/o manipulation
-it is evidence apparent on its face of legality. criminalioty is immediately apparent.
What are the rules for plain feel?
a. right to feel
b. must be immediately apparent
c. must be done without manipulation
What are the rules for Emergency/Exigent Circumstances
a.evidence will be immediately destroyed
b.suspect is trying to escape
c.potential injury to another
What are the rules for Entry into a home:
a.when police in pursuit of fleeing felon
b.imminent destruction of evidence
c.prevent suspects escape
d.risk of harm to police or others
What are the rules for Incident to a lawful arrest
a.individual person
b.lunging area; to protect police to safely arrest, must describe why needed; articulate facts
What are the rules for Automobile Exceptions
-can search car and containers if there exists p.c., not r.s.
-if have p.c., than can search subject to scope
What is the Rule for Invetory Search?
Inventory Search = plain view
What are the rules for a consent search?
-have a right to refuse, exercising constitutional right is not p.c.
a.Implied consent – if call police, implied consent to search, related to the routine investigation of the offense
b.3rd party consent – valid only when there is mutual use of the property by persons generally having joint access or control; “of dominion & control”, “subject auth/belief it is under control”, “reasonable possession, common authority”
c.Landlord/ tenant – no consent
d.Hotel/guest –no consent
How many types of seizures are there and what are they?
There are two types- property and people searches.
What are the rules for a property seizure?
-when there is a meaningful interference with a defendant or person right to that property
-reasonable suspicion
What are the types of seizure of a person?
a.Arrest – a reasonable person does not feel free to leave
b.Detention – (stop) need reasonable suspicion that a crime has taken place and you have knowledge of or guilty; limited in scope; short in duration
What are thr rules for a consentual encounter?
There is no rule
What are the rules for a detnetion?
1.Officers need rs that a crime has taken place in scope
3.short in duration
4.depending on investigation
What occures if the search goes beyond the scope?
1.unlawful, illegal detention
3.anything discovered can be suppressed
a.unless detention leads to an arrest
b.just b/c cuffed doesn’t mean arrested
What are the grounds for a detention?
must have rs, pc based on totality of circumstances
What are the rules for a Pat Down?
Terry v. Ohio
-only pat for weapons
-not to look for evidence
-Rule: rs that the person is armed and dangerous, NOT officer safety!
Sub rule – there must be articulable facts
-A pat down is both a search and seizure
If felt a bulge = plain feel
Profiling – fact to consider is tot of circ
what case decided what the pretext has to be in order to stop a person?
Whren v. U.S.
Minor or technical vehicle infractions as a pretext for stopping a vehicle and conducting and investigatory detention, has to be an objective to the stop.
PC to believe a minor violation has taken place
What is the 5th Amendment?
Right Against Self-Incrimination (affects interrogations and confessions)
What are th rules regarding confessions?
Right Against Self-Incrimination (affects interrogations and confessions)
Confessions- there are circumstances where people confess when didn’t do it
Rule: it must be voluntary and it must be done with knowledge of its consequences
Voluntary – when made with knowledge and nature and consiq and without duress or inducement
When in a confession not voluntary?
Not Voluntary if:
a.threatened or actual force
b.psychological pressure
i.age, day/night q’s, good cop/bad cop, mental functioning
c.promises of leniency (only da and judge can do)
d.threats of harsh legal treatment
e.deception; can lie to get confession gc/bc
What is an interrogation?
expressed questions, functional
What is the rules regarding Interrogations?
-any stmt made by a suspect as a result of a custodial interrogation may not be used unless given safeguards
Interrogation – occurs when one person is expressly questioned or when the functional = of questioning occurs
What is custody?
Custody – when one is deprived of his freedom in a significant way
What does Functional = mean?
words or actions that the police should know are reasonable likely to illicit an incriminating response
If there is a violation of the 4th or 5th Amendments what can be done?
Motion to suppress eveidence
What are the two policy considerations?
1.Inevitable Discovery – if inevitably you would have found the evidence, then it could not be suppressed
Located on independent and lawfully attained info it may be admissible
2.Attenuated circumstances – question a certain point when the illegality has become attenuated form other lawful reasons; too remote too far apart from one another
What are the types of evecution?
1.electric chair
2.firing squad
4.lethal injection
5.gas chamber
What occurs in an appeal?
Get your trial, jury convicts, as soon as make appeal standard decreases substantially. Look for particular amt of error in record; find prejudice as a result of error in record, and not harmless
-not harmless
What are the two types of probation?
1.Formal – offender released to custody of po, under certain conditions; 4th waiver, curfew, surprise visits, fines, classes)
2.Informal – probation to court; (m); letting offender go, only see again if violate, may/may not have to have court appearances, no po, no curfew
What are the three types of sentencing/punishment.
-Death penalty