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79 Cards in this Set
- Front
- Back
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Attack Sequence for 4th amendment
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"1) Was there a search? 2) Was there PC? 3) Was a warrant issued? If so were the warrant rules regarding content and execution complied with? 4) If no warrant, was a warrant required or was there an exception? 4) If a warrant was required, were the prerequisites for a valid warrant complied with? 5) If a violation occurred, does the exclusionary rule apply? 6) Is there any other theory under which the evidence could be admitted? "
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Katz
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(Phone Booth) Two prong test to determine if a search has occurred. 1) Did the person have a subjective expectation of privacy? (2) Is that expectation one that society is prepared to recognize as objectively reasonable?
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Categories involving threshold issue of search
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"(TIPCO) Technology, Informants,Physical Manipulation, Curtilage, Overflight"
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Is it a search? (Informants)
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White: Assumption of the risk. No expectation of privacy.
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Is it a search? (Technology)
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"Technology that reveals information that someone has disclosed to the general public or a third party is okay (Pen register, tracking device). Technology that is not available to the general public and reveals information that would not otherwise be knowable is not okay (Kyllo)"
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Is it a search? (Physical Manipulation)
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"Bond Factors - Look at TIP (Type of Contact (visual v. tactile), Intent of Contact (obsevational vs. exploratory, proximity of item to person (have they relenquished control)."
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Is it a search (Curtilage)
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"Curtilage is subject to the same protections as the home. Weigh the following factors: PEPE (Proximity, Enclosure, Purpose, Exclusions)"
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Ciraolo
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Overflight case: no reasonalbe expectation of privacy for things that can be seen from the public perspective.
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Probable Cause
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*facts and circumstances *within the officer knowledge OR *reasonably trustworthy information *warrant a fair probability that 1) SEARCH = an item subject to seizure will be found in the place to be search when the search is to take place 2) ARREST = an offense has been or is being committed by the person to be arrested
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Pretextual arrests
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"Officer’s Subjective intent does not matter, only what the officer knows for PC purposes (Whren)"
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Informants as a Source of PC
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"TEST [Augillar/Spinelli/Gates] Totality of Circumstances: Basis of Knowledge = How the informant knows, extent of detail. Veracity/Reliability = Past tips from informant or corroboration of info, self-incrimination, anon vs. known. Appellate Review = did the magistrate have a substantial basis for finding PC?"
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Arrest in Public
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No warrant required. Warantless arrests based on PC for felonies are always valid when made in a public place. [Watson credit card] Warantless arrest for misd committed in his presence. [Atwater seatbelt]. Rationale = You get hearing 48 hrs after arrest (Gerstein hearing)
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In-Home Arrest
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"[Payton] To enter into a suspect’s home and make an arrest, w/o an exception you need a warrant + PC that D is at home at time of execution. Exceptions: (HIPR) Hot pursuit, Imminent destruction of evidence, Prevent escape, Risk of danger to police or ppl"
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Third Party's Home for arrest warrant
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"[Stegald] – Cannot enter 3rd party home to execute arrest warrant w/o warrant for that home, or exigency or consent, or have knowledge it is D’s home or temporary residence."
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Warrant issuance
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"A neutral/detached magistrate must determine that there is PC that evidence will be on the premises described when the warrant is executed. Warrant must describe the place to be searched, person or thing to be seized with particularity."
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Mistakes in warrant application.
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"Mistake may be okay as long as its rsnbl, Garrison, 3rd floor apartment. However, if a warrant is obtained in bath faith (that is the officer recklessly or intentionally gives false information to the magistrate then evidence can be suppressed. (Franks) "
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Franks Hearing
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"D makes substantial preliminary showing of knowing or reckless disregard. If the statement was necessary to finding PC a franks hearing is held. If perjury est. by POE, and w/o the false ev the affidavit would lack PC, evidence is suppressed."
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Particularity requirement & Purpose
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"Desinged to prohibit general warrants/writs of assistance. [Anderson office docs] A warrant must be read in its entire context to avoid general application Nothing about what is to be taken can be left to discretion of officer. Omissions [Groh] – warrant must include things to be searched OR incorporate them by reference to affidavits, etc. "
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Anticipatory Warrants
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"[Grubbs, child porn case] There must be PC to believe trig condition will occur and PC that if the trig condition occurs, there is a probability that contraband or evidence of the crime will be found in that place. But, do not have to list trig condition in warrant."
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Warrant Execution Issues (List)
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"(MKSMS) Mistake, Knock and Announce, Scope, Method, Staleness"
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Warrant Execution – Mistake
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"if officers realize a mistake in the warrant when they get there, have to stop [Garrison]"
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Knock & Announce
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[Wilson] Common Law requires knock and announce as part of reasonableness inquiry. Banks – an interval of 15-20 seconds was reasonable given the possibility of destruction of narcotics evidence. Reasonableness is governed by how long it would take to destroy evidence sought.
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Scope of Warrant Execution
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Police can only look in places large enough to contain evidence sought after. Cannot let the media or 3rd party come.
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Staleness of Warrants
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"If you wait too long, PC may dissipate"
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Exclusionary Rule
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Any evidence obtained or seizures committed as a result of an unrsnbl search or seizure must be suppressed [Mapp]
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List the EXCEPTIONS TO THE WARRANT REQUIREMENT
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"(ICECAPSCaPS), Iventory Search, Consent, Exigency, Checkpoints, Automobile, Plain View, SILA, Consensual Encounters, Protective Sweep, Stop and Frisk"
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Search Incident to Arrest
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"Given a lawful arrest, an officer can search the person arrested (Robinson) and the area within that person’s control (Chimel). Rationale is preservation of evidence, officer safety. Then use plain view for the accompanying seizure."
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SILA - Monitoring Power
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[Chrismen]. Police can go with a defendant once he placed under arrest to place the defendant wants to go.
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SILA & Vehicle Searches
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"[Gant] Test = PC to arrest + Reason to believe the interior of the car harbors evidence of the crime for which the person is being arrested, Scope = Limited to crime of arrest and places harboring evidence or weapons within D’s reach. Rationale = Preservation of evidence, officer safety"
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Exigent Circumstances
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"PC to enter + Exigency (circs made conduct imperative, Scope = As broad as rsnbly necessary to prevent danger that suspect in house may resist, escape, destroy evidence, Any space that could harbor a person, Use w/SILA. Rationale = Safety + Preservation of Evidence - Types = fights [Brigham], public + police safety, hot pursuit, prevent escape"
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Vehicle & Container Searches
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"[Acevedo] Test = Warrantless search of the entire car and containers limited by size and nature of items for which there is PC. Rationale = Cars are mobile, cannot get a warrant, less privacy expectation in vehicle. If PC is for a container, can’t search whole car. Can search a passenger’s belongings but not her person."
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Inventory Searches
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"Police must (1) acting in GF (2) according to police regulations concerning inventory procedures, inspection of an impounded vehicle is rsnbl. Scope = Limited to procedures, cannot be so broad as to give officer unlimited discretion [Wells] – nothing in procedures covered locked suitcases in trunk, so officer could not inventory the locked suitcase in D’s trunk Rationale = Protects owner’s property, protect police/impound from claims of theft/loss, officer safety"
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Consent Searches
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" [Shneckloth]Test = State must show consent was voluntary and not the result of duress/coercion, Totality of circumstances test.. Does not have to be knowing waiver. Whether suspect knows he can refuse is one factor to consider. Limited to what a rsnbl officer would have understood about the exchange btw the officer + suspect regarding the scope"
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Third party consent searches
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"One who has Common Authority, which is either mutual use, or joint access or control, can consent to a search. Level of common authority informs scope of 3rd party’s ability to consent and your expectation of privacy. However, where a physically present inhabitant makes express refusal of a search, it is dispositive regardless of consent of fellow occupant."
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Apparent Authority/Mistaken Third Party Consent
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"As long as the police are objectively rsnbl in thinking the person had common authority, a warrantless entry into the home is valid"
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Plain View Doctrine
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Police must be present lawfully & have lawful access & Incriminating nature of item must be immediately apparent. Valid for police to get a warrant as a pretext and rely on PVD once they enter the area. Rationale = getting a warrant is a needless inconvenience and would not serve privacy interest of suspect b/c item is already discovered.
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Stop & Frisk
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" “Terry Stop” - An officer can conduct a search for weapons if he has a rsnbl suspicion that the suspect is armed and dangerous. Officers have to ID themselves. Must have rsnbl suspicion that criminal activity was afoot for the stop. Search must be related to the stop. Scope = Surface of clothing, anywhere that might hold a weapon. Rationale Balance = Officer/public safety vs. Intrusive w/o PC"
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What is Rsnbl Suspicion?
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"rsnblness determined using totality of circs, rsnbl suspicion is less stringent than PC, more than a hunch, less than PC. Not a circumstance that applies to a large number of people. Believing someone is wanted for a felony qualifies as reasonable suspicion."
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Seizure of Persons Defined
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Seizure = When by means of physical force or show of authority a rsnbl person would not feel he is free to leave [Mendenhall]. Sbj intent of officer irrelevant except as conveyed to D
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Consensual Encounter
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" [Bostick] (Bus) Would a rsnbl person feel free to disregard the police and go about his business, decline the request, or otherwise terminate the encounter. Focus on police activity, not where D has constrained his own movement."
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Pursuit as Seizure
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Hodari requires either physical contact or a show of authority +submission to that authority. Staying in a car after being pulled over would constitute submission.
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Protective Sweep
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"[Buie] Incident to LA, protective sweep of the immediate area from which an attack could be launched + adjoining rooms. Need rsnbl suspicion to search beyond adjoining room. Rationale = Police safety. Scope = Once individual is found, sweep ends"
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Checkpoints
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Must be reasonable. Look at Gravity of public concerns /public purpose & interest vs. Severity of the interference with individual liberty. Also examine Nature of the seizure [exercise of discretion]. Too much discretion would be unreasonable.
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Three things to Analyze with an interrogation/admission
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"Due Process, 5th Amendment & 6th amendment"
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Due Process
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"Focuses on voluntariness & coercion [Connelly]. Test = Totality of the Circumstances. Coercion can lead to unreliable statements that will compromise right to a fair trial. Examples, excessive deception, coercion, violence & threats or promises of protection/child killers."
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Cases under 5th amendment
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"MQM - SPIED - Miranda, Quarles, Mosley, Shatzer, Perkins, Innis, Edwards, Davis"
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Miranda
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"Protects the privilege against self-incrimination. If the person in custody is to be interrogated, must informed of his rights and waive them knowingly, intelligently and voluntarily before interrogation can occur. Person can cut off questioning at their discretion."
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What qualifies as Custody for the purposes of Miranda?
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"Inquiry: Would a rsnbl person under the circumstances believe they were under arrest? (mendenhall) Personal characteristics of individual are relevant to determine if a person thought he was in custody. Traffic stop=no Miranda b/c it is temporary and brief. If you voluntarily go to police, not custody. "
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Public Safety Exception for Miranda/QUARLES
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"Police are allowed to ask questions rsnbly prompted by a concern for public safety prior to Mirandizing the suspect (Not limited to pre-Miranda statements, could ask questions w/no waiver post Miranda if related to public safety)"
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Innis
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" express questioning or its functional equivalent. Words or actions on the part of the police, that the police should know are rsnbly likely to elicit an incriminating response from the suspect. Whether police knew it would elicit an incriminating response includes knowledge police have about suspect’s particular susceptibilities"
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Perkins
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An undercover law enforcement officer does NOT have to give Miranda warnings to an incarcerated suspect before asking questions about an unrelated crime that may elicit an incriminating response
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Mosley
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"admissibility depends on whether his right to cut off questioning was scrupulously (conscientiously) honored. Not a blanket prohibition, can be interrogated on another subject as long as rsnbl time has passed + new warning is given."
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Edwards
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"5th amendment is gateway to invoking 6th. Once the suspect requests counsel, questioning must cease unless suspect initiates questioning or counsel arrives. Still applies even when multiple/different officers seek to interrogate the same suspect about separate crimes, must cease until counsel arrives."
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Davis
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" Ambiguous request that the suspect might be invoking the right to counsel, does not require the police to cease questioning. However, Clarification of ambiguous request is highly encouraged"
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Shatzer
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{inmate]. Effect of realease. All invocations are dissipated 14 days after being released from custodial interrogation.
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6th Amendment Cases
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"(Good Food Makes Me Puke) Gideon, Patterson, Faretta, Massiah, Montejo"
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Right to Assistance of Counsel - When applies? How does it work?
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Triggered when formal proceedings are filed. It is offense specific – only attaches to those offenses for which D has been arraigned. Two offenses are the same if the statutory elements of one are included in the other.
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Gideon
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" If one cannot afford an attorney, one will be appointed "
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Patterson
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Miranda is sufficient to inform you of your 6A right [Patterson]. Waiver must be knowing/intelligent/voluntary.
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Faretta
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"In court proceedings, D must be made aware of dangers and disadvantages of self-representation. D cannot prospectively invoke your 6A right to counsel, and invocations are offense specific"
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Massiah
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"Once the right to counsel has attached, the 6A render inadmissible statements “deliberately elicited” from a defendant in the absence of counsel, unless there is an express waiver of the constitutional right - don’t want police to surreptitiously circumvent 6A RTC. Undercover Police can listen passively."
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Montejo
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"After RTC attaches, D must be given Miranda. If D properly waives, the police may interrogate even if the defendant invoked counsel at his first judicial appearance. However, in custodial settings, Edwards applies and invoking your 5A right means that questioning must immediately cease. Montejo = problem for Ds who invoke 6A rights in non-custodial environments. Police can approach those individuals, encourage wavier and conduct interrogation even after a D has lawyer."
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Montejo and “police badgering” for custody & non-custody
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"Montejo held that bc Miranda/Edwards protects against badgering, a waiver will typically suffice to waive rights during custodial interrogation. When a D is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering. Montejo suggests it is the D’s responsibility to avoid being badgered. What police actions would constitute badgering in 6A remains unclear."
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Attack ideas for non-custodial Montejo badgering
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1) Try and argue it is custodial interrogation 2) Argue waiver wasn’t knowing/intelligent/voluntary 3) Argue police against police badgering but balance with lack of coercion when not in custody
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When the exclusionary rule will not apply
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"(GESSS) Standing, Good Faith, Evidence from Statement, Statements outside home after warrant w/out arrest, ""self-incriminating"" statements that actually incriminate others."
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Standing
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"Lacking a possessory interest in or close connection to the place to be searched, Ds will not be allowed to make a 4A violation claim (Fleeting and insubstantial connection) Look at Connection to premises, purpose for being there, duration of stay, social guests almost always ok. 4A right is a personal right."
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Good Faith Reliance
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Exclusionary rule does not apply where officers executed search warrant in GF [Leon] (Unsure how this applies to bad arrest warrant) No GF when 1) Franks (police mislead magistrate) 2) Where magistrate abandoned neutral/detached 3) warrant lacks any reasonable PC 4) Warrant is facially deficient.
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Good Faith Cases
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"Seems to be a policy that the court doesn’t want to punish the police for court mix ups. It wouldn’t serve the deterrence purpose of the exclusionary rule. Examples, if magistrate makes mistake in warrant, if police rely on mistake in court database, if police rely on wrong info from another PD."
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Patane
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"Physical evidence obtained as a result of a Miranda violation is admissible b/c 5A protects against self-incriminating statements being introduced at trial, whereas physical evidence speaks for itself"
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Harris
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"Where police have PC to arrest, but they make arrest inside home w/o warrant, exclusionary rule does not bar statements made by D outside the home"
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Ways around fruit of the poisonous tree.
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"Inevitable discovery, independent source & attenuation"
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What are the two types of attenuation doctrines?
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Factual attenuation & Interest based Attenuation
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Independent Source
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"Look for separate facts leading to PC and a warrant. [Murray] As long as the police rely on independent evidence in obtaining warrant after warrantless search, the taint has dissipated. Magistrate can’t know about illegal entry, evidence from illegal entry can’t be used, police would have sought a warrant even w/o knowledge of evidence"
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Inevitable Discovery
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[Nix]Gov must show by POE that they would have discovered the evidence without the constitutional violation. Christian burial speech vs. search party
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Attenuation (Factual)
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" [Wong Sun] Did the evidence that D wants to suppress come about by means sufficiently distinguishable to be purged of the primary taint? Always a but for situation. Look to factors such as (FLIC) Flagrancy of violation, Length of time/closeness in time, Independent act of free will (look for coercion), Consent to a search. Also Watch for Patane/5A violation!"
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The effect of Miranda Warnings on attenuation
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"Miranda warnings by themselves do not attenuate the taint of an unconstitutional arrest, but they are a factor to weigh "
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Hudson
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Knock and Announce [Hudson] Would suppressing the evidence deter police misconduct? Attenuation is only applied where deterrence benefits outweigh substantial social costs. The cops were already there and would have access to the information anyway. D can file a civil suit against police.
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Question First Practices (not deliberate)
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" [Elstad] – To determine whether Miranda advisements delivered midstream can attenuate previous un-Mirandized statement, consider whether suspect would see it as a separate interrogation: Overlapping content of statements, Timing and setting of 1st vs. 2nd, Diff in location/police personnel, Degree to which 1st round was continuous with 2nd round, Completeness/detail of questions asked and answered in 1st round"
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Question First Practices (deliberate)
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"[Seibert] – Where police employ deliberate question-first practice, curative measures must be taken to ensure that a rsnbl person in the suspect’s situation would understand the import and effect of Miranda warning/waiver: Substantial break in time btw pre-warning statement + warning, OR Additional warning that explains the likely inadmissibility of the pre-warning custodial statement"
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