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105 Cards in this Set

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What are the two categories of government agents for the purposes of 4th Amendment searches and seizures?
1) Publicly paid police, on or off duty
2) Private citizens, if acting at the direction of the police
What four types of things does the 4th Amendment protect re: searches and seizures?
1) Person
2) Houses
3) Papers
4) Effects
What things are not protected by the 4th Amendment's search and seizure rules?
1) Paint scrapings on the outside of a care
2) Account records held by a bank
3) Airspace
4) Garbage
5) Voice
6) Odors
7) Handwriting
8) Open fields
What is required for a person to have standing to challenge the lawfulness of a search or seizure?
An individual’s personal privacy rights must be invaded, not those of a third party
When does the owner of seized property have standing to challenge the seizure?
If there was a reasonable expectation of privacy in the area from which the property was seized
Under federal law, when does a passenger in a car have standing to challenge a search or seizure? What is the NY exception to this rule?
Reasonable expectation of privacy in the item or area searched or seized

NY exception: Passengers in car have standing to challenge the possession of weapons, if possession is attributed to them
What is probable cause?
Probable cause requires proof of a fair probability that contraband will be found in the area searched
What is required under federal law in order for an informant's tip to constitute probable cause?
Need: sufficient corroboration by the police to allow the magistrate to make a common sense, practical determination that probable cause exists
What is required under NY law in order for an informant's tip to constitute probable cause?
1) Informant’s basis of knowledge, AND
2) Informant’s veracity/reliability
What is required in order for a warrant to satisfy the particularity requirement?
Search warrant must specify:
1) Place to be searched, and
2) Items to be seized
How may a warrant be saved if there is an absence of probable cause or particularity? What is the NY rule on this?
The officer relied upon it in good faith

This rule does not apply in NY
What are the four exceptions in which an officer's good faith reliance on a defective warrant does not "save" the warrant?
1. Affidavit supporting the warrant is so egregiously lacking in probable cause that no reasonable officer would have relied on it
2. Warrant is so facially deficient in particularity that officers cannot reasonably presume it to be valid
3. Affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding
4. Magistrate is biased in favor of prosecution
What is the knock and announce rule? What are the exceptions to the knock and announce rule?
Police must knock and announce their presence AND their purpose before forcibly entering the place to be searched, unless officer reasonably believes that doing so would be:
1) Futile
2) Dangerous
3) Would inhibit the investigation
What are the 8 exceptions to the warrant requirement?
1) Exigent circumstances
2) Search incident to arrest
3) Consent
4) Automobile
5) Plain view
6) Inventory
7) Special needs
8) Terry stop and frisk
In what two kinds of circumstances does the exigent circumstances exception to the warrant requirement apply?
1) evanescent evidence
2) hot pursuit of a fleeing felon
What is the required timing for a search incident to arrest?
Search must be contemporaneous w/ the arrest in:
1) Time
2) Place
What is the geographic scope of a search incident to arrest?
Arrestee's wingspan, which includes:
1) body
2) clothing
3) any container’s w/in the arrestee’s immediate control

w/o regard to the offense for which the arrest was made
In NY, what is required before an officer can search containers w/in the arrestee's wingspan, during a search incident to arrest?
In order to search containers w/in the wingspan, police must suspect that the arrestee is armed
What is the scope of a search of an automobile pursuant to a search incident to arrest?
Interior cabin, including closed (but not locked) containers

NOT the trunk
Under federal law, when may an officer search a car incident to arrest after the officer has secured the arrestee?
Only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made
What is required in order for a consent to search to be valid?
Consent must be:
1) Voluntary
2) Intelligent
What is apparent authority w/r/t 4th Amendment search/seizure?
If police obtains consent to search someone who lacks actual authority to grant it, the consent is still valid under the 4th Am, provided the officer reasonably believed the consenting party had actual authority
Who prevails when two co-tenants disagree w/r/t to whether to allow a search of a shared living space?
The objecting co-tenant
When may an officer conduct a warrantless search of an automobile (absent consent or search incident to arrest)
Police need probable cause to believe that contraband or evidence of crime will be found in the vehicle
What is the permissible scope of a warrantless search of an automobile (absent consent or search incident to arrest)?
Police may search the entire vehicle, including the trunk

May open any package, luggage, or other container that may reasonably contain the items for which there was probable cause to search
What is required in order for an officer to legally seize items in plain view?
1. Lawful access to the place from which the item can be plainly seen
2. Lawful access to the item
3. Criminality of the item immediately apparent
When is an inventory search constitutional?
1. Regulations governing them are reasonable in scope, and
2. Search complies w regulations
In what three situations is suspicionless drug testing constitutional under the special needs exception
1) Railroad employees following an accident
2) Customs agents who are responsible for drug interdiction
3) Public schoolchildren who participate in extracurricular activities
In general, when is suspicionless drug testing not permitted under the special needs exception?
Where the primary purpose is to gather criminal evidence for use by law enforcement
When does a "seizure" occur for the purposes of a Terry stop? What factors are relevant?
Individual seized when, based on totality of circumstances, reasonable person would not feel free to leave or to decline request to answer questions

Factors
1) Officer brandishes a weapon
2) Officer’s tone and demeanor
3) Whether individual was told she had a right to refuse consent
When is an individual being pursued by the police "seized" for the purposes of a Terry stop, under federal law?
When being pursued by police, individual is “seized” only if the officer physically restrains him
When is an individual being pursued by the police "seized" for the purposes of a Terry stop, under NY law?
Police pursuit is a seizure
When is a dog sniff permitted at a traffic stop?
Permissible, provided that sniff does not prolong the seizure unreasonably
What can be seized in a Terry frisk under federal law?
1) If officer finds a weapon, can be seized
2) If officer finds contraband, w/o manipulating the object → can be seized
What can be seized in a Terry frisk under NY law?
Can seize item only if it feels like a weapon
When can an officer search a car while conducting a traffic stop (Terry stop)? What is the permissible scope of the search?
When conducting a traffic stop, if an officer reasonably believes that suspect is dangerous, he may search the passenger cabin

Limited to those areas in which a weapon may be placed
What is the general evidentiary standard required to support a Terry stop and frisk?
Reasonable suspicion
What is required in order for a Terry stop to be valid?
1) Specific and articulable facts that inform an officer’s
2) Reasonable belief that criminal activity is present
What is required in order for a Terry frisk to be valid?
Specific and articulable facts that suggest that a suspect is armed and dangerous
What is the exclusionary rule?
Evidence, whether physical or testimonial, that is obtained in violation of a fed statutory or constitutional provision, is inadmissible in ct against the individual whose rights were violated
What are the 4 limitations on the exclusionary rule?
1) May be used on cross-examination to impeach D's testimony

2) Does not apply to knock and announce rule

3) Officer's reasonable mistake

4) Fruit of the poisonous tree
What is the fruit of the poisonous tree doctrine?
Secondary evidence obtained by exploiting prior unconstitutional conduct is inadmissible in the prosecutor’s case-in-chief
What are the three ways to break the link between original illegality and other criminal evidence, under the fruit of the poisonous tree doctrine?
1) independent source
2) inevitable discovery
3) attenuation
What is "attenuation", as an exception to the fruit of the poisonous tree doctrine?
Defendant’s free will has been restored through the passage of time and an intervening event
What are the 4 requirements for a valid wiretap?
1) Warrant must name the suspected persons whose conversations are to be overheard
2) Must be probably cause that a specific crime has been committed
3) Warrant must describe w particularity the conversations that can be overheard
4) Wiretap must be strictly limited in time
What are a person's 4th Am protections when they speak w someone who has agreed to wiretap?
NO 4th Amendment claim. You have assumed the risk that the other party will not keep your conversations private
When does an arrest occur?
Arrest occurs when the police take someone into custody against her will for prosecution or interrogation

De facto arrest if: police compel someone to come to the police station for questioning or fingerprinting
What standard of proof is required to support an arrest?
probable cause
For what offenses may a person be arrested?
Arrest permitted for all offenses, even those punishable by a monetary fine
Is a warrant required to arrest someone in a public place? In their home?
public place: no warrant required

in their home: warrant required
What is required to arrest someone in the home of a third party?
1. Arrest warrant, AND
2. Search warrant
What three federal constitutional challenges can be brought to exclude a confession?
1. 14th Amendment DPC
2. 6th Amendment right to counsel
3. 5th Amendment Miranda doctrine
What NY-specific challenge can be brought to exclude a confession?
State 6th Amendment indelible right to counsel
When may a confession be excluded under the DPC?
If it is involuntary

Involuntary = product of police coercion that overbears the suspect’s will
When does D's 6th Amendment right to counsel attach?
When the suspect is formally charged
Is the 6th Amendment right to counsel offense-specific?
Yes
When does the NY indelible right to trial attach?
Whenever there is significant judicial activity before the filing of an accusatory instrument such that defendant may benefit from the presence of counsel
What are the Miranda warnings?
1. Right to remain silent
2. Anything you say can and will be used against you in a ct of law
3. Right to an attorney
4. If you cannot afford attorney, one will be appointed for you
What is required in order for Miranda to apply?
1) custody
2) interrogation
What is "custody" for the purposes of determining whether Miranda applies?
Atmosphere, viewed objectively, is characterized by police domination and coercion, such that his or her freedom of action is limited in a significant way
What is "interrogation" for the purposes of determining whether Miranda applies?
Conduct the police knew or should have known was likely to elicit an incriminating response
What is the sole exception to the general Miranda requirement?
Not required where prompted by an immediate concern for public safety
What is required for a valid waiver of a D's Miranda rights?
1) Knowing and intelligent (i.e. suspect understands nature of rights and consequences of abandoning them)

2) Voluntary
What is the burden of proof for establishing a waiver of Miranda rights?
Prosecution bears burden of proof by a preponderance of evidence
Is silence or should-shrugging sufficient to constitute a waiver of Miranda rights?
No
After a D has invoked his right to silence under Miranda, what must an officer do before reinitiating questioning?
Must wait a significant period of time before reinitiating questioning, and must first obtain a valid Miranda waiver
What is the standard for determining whether a D's invocation of his right to counsel under Miranda is valid?
Request for counsel must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel
Is a D's 5th Amendment right to counsel offense-specific?
No. Interrogation following a request for counsel under Miranda is prohibited on all topics, outside presence of attorney
When does a request for counsel expire after a suspect is released from custody?
Request for counsel expires after 14 days after a suspect is released from custody
Are incriminating statements obtained in violations of a suspect’s Miranda rights admissible at trial?
Not in the prosecutor's case in chief. But: may be used to impeach defendant’s testimony on cross
Does failure to give Miranda warnings does require suppression of physical fruits of the incriminating statements
No, provided that the statements are voluntary
If testimonial evidence that should have been excluded as violative of Miranda was improperly admitted at trial, when should the judgment be vacated?
Gov cannot prove beyond a reasonable doubt that the error was harmless
What are a D's 5th Amendment rights to counsel during a pre-trial ID?
None
What are a D's 6th Amendment rights to counsel during a pre-trial ID?
Right to counsel exists for:
1) Line-ups
2) Show-ups
freight
When does a pre-trial ID violate the DPC?
When it is so unnecessarily suggestive that there is a substantial likelihood of misidentification
What is the proper remedy for a pre-trial ID that violates a D's 6th or 14th (DPC) Amendment rights?
Exclusion of witness’s in-court ID
When is a witness's in-court ID allowed, despite the existence of an unconstitutional pre-trial ID procedure? What factors are important in this consideration?
Prosecution can prove that it is based on observations of the suspect other than the unconstitutional ID

Factors
1) Witness’s opportunity to view the D at the crime scene
2) Certainty of the witness’s ID
3) Specificity of the description given to the police
What standard of proof is required for pre-trial and during-trial detention?
Probable cause
What are the two prongs of the right to an unbiased judge?
1. Judge has no financial stake in the outcome of the case, and
2. Judge has no actual malice towards D
When does criminal Ds have a right to a jury trial?
Maximum authorized sentence > 6 mo
What is the fewest number of jurors allowed in a criminal trial under federal law?
6
What is the fewest number of jurors allowed in a criminal trial under NY law?
12
When is unanimity required for federal juries? When is it not required?
Unanimity is required when there is a jury of only 6 people. Otherwise, unanimity is not required
What is the cross-sectional requirement w/r/t juries?
Requires that the pool from which the jury is drawn represents a cross-section of the community
In what situation does a D's right to confront an adverse witness not apply?
When there are countervailing important public policy concerns

E.g. traumatizing a child witness
What is required to succeed on a claim of ineffective assistance of counsel?
Requires proof that:
1. Counsel’s performance was deficient, and
2. But for the deficiency, the outcome of the trial would have been different
What is required for a guilty plea to be valid?
For a guilty plea to be valid, judge must establish that it is:
1) Voluntary
2) Intelligent
In what 4 situations my a D withdraw a guilty plea?
1) Plea is involuntary
2) Jurisdictional defect
3) D prevails on claim of ineffective assistance of counsel
4) Prosecutor fails to fulfill his pt of the bargain
What does the 8th Am prohibition against cruel and unusual punishment generally prohibit?
8th Am prohibition against cruel and unusual punishment prohibits criminal penalties that are grossly disproportionate to the seriousness of the offense committed
When does a death penalty statute violate the death penalty (other than when it allows for death penalty of certain restricted groups)?
Death penalty statute violates 8th Am if creates an automatic category for the imposition of the death penalty
Against what groups of people is the death penalty prohibited?
8th Am prohibits death penalty against:
1) D w mental retardation
2) D who are presently insane
3) D who were under the age of 18 at the time the relevant offense occurred
When does double jeopardy attach at:

1) jury trial
2) bench trial
3) guilty plea
1) Jury trial: When the jury is sworn
2) Bench trial: When the first witness is sworn
3) Guilty plea: When the court accepts the D’s plea unconditionally
Does double jeopardy apply to civil proceedings?
No
What is the "same offense" requirement for double jeopardy, under federal law?
Two offenses are not the same offense for the purposes of double jeopardy if each contains an element the other does not
What is the transaction requirement for double jeopardy in NY?
D must be charged w all offenses arising from any single transaction, unless:
1. Offenses have substantially diff elements
2. Each offense contains an element not in the other, and they vindicate different harms
3. One of for criminal possession and the other for use
4. Each offense involved harm to a different victim
What is the rule for greater- and lesser-included offenses under double jeopardy?
1. Prosecution for a greater offense precludes later prosecution for a lesser-included offense
2. Prosecution for the lesser-included offense precludes later prosecution for the greater offense
When do two governments constitute the "same sovereign" for purposes of double jeopardy?
1) State and fed gov are NOT the same sovereign
2) Different states are NOT the same sovereign
3) States and municipalities w/in them ARE the same sovereign
What are the 4 situations in which double jeopardy does not apply?
1) Hung jury
2) Mistrial for manifest necessity
3) Successful appeal
4) Breach of plea agreement by D
Who may assert the 5th Amendment privilege against self-incrimination?
Anyone
In what proceedings may the 5th Amendment privilege against self-incrimination be invoked?
Any proceeding under oath
When must the 5th Amendment privilege against self-incrimination be invoked?
Must be asserted at the first opportunity or it is waived
What are the three ways in which the 5th Amendment privilege against self-incrimination can be eliminated?
1) immunity
2) D takes the stand
3) statute of limitations for the crime has run
What is use immunity for the purposes of the 5th Amendment privilege against self-incrimination?
Prosecutors can grant use and derivative use immunity, which bars government from using your testimony or anything derived from it to convict you
What is transaction immunity for the purposes of the 5th Amendment privilege against self-incrimination? Does it apply in federal court? NY?
Shields witnesses from prosecution for any transaction they testified about in their immunized testimony

It only applies in NY, not federal court