Pa Conlaw Distinctions 2013: Askesqlaw

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Answering Bar Exam Questions Re: PA Con Law

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Note USC floor/minimum standard and that PA goes beyond the floor to give citizens more rights (w/o violating Supremacy clause)

Note Edmunds Factors = attorney M/brief and argue in cases raising constitutional issues:
- Text of applicable state constitution provision
- history of provision and relevant case law
- related case law from other states AND
- policy considerations including unique issues of state and local concern

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PA Search Warrants

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M/include adequate description and be based on PC, supported by oath or affirmation, subscribed to by affiant

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PA - Con Law - Bank Records

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Authorities c/n access w/ less than PC u/l statements and materials are submitted to insurance company, or it involves non-financial information given to the bank (i.e. name/address)

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PA - Con Law - Standing to Challenge S & S

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Automatic standing for possessory offenses to challenge FPT E admissibility

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PA - BAC Data

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Police c/obtain results when procured pursuant to statute

Violated when hospital gives officers results of BAT taken for MEDICAL purposes w/o warrant and not pursuant to statute

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PA Canine Sniffs

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Not a search under USC - but for PA:
- PC to sniff a person = search
- RS to sniff a place

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PA - Exclusionary Rule Exception

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Not valid in PA

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PA Automobile Searches

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USC = d/n matter/can conduct full search if officer has PC

PA = police c/n conduct warrantless car search u/l EC pursuant to arrest - and not after occupants are out of the car and in custody
- EC = loaded gun in running car, regardless of occupants in the car

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PA - Stops and Fleeing Suspects: TERRY STOP

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If police lack PC to arrest - or RS to stop and Terry Frisk, then any contraband discarded by fleeing suspect is inadmissible E as FPT

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PA - Bus Stops

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Prohibits random bus stops for purposes of conducting drug investigation - M/h PC or RS

BUT police c/board an already stopped bus to investigate

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PA Police Radio Broadcasts

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Cannot be used to justify a stop and frisk UNLESS officer can establish that the information obtained over the broadcast was reliable OR had an independent basis for establishing RS of criminal activity

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PA School Locker Searches

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Students have limited REP

Public HS officials c/use drug sniffing dogs for "surprise safety checks" of lockers

Police c/use hand-held metal detectors to search students for weapons upon entry of the building

Drug and alcohol testing of HS students c/n/b imposed as a condition of extra-curricular activities and driving privileges

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PA Anticipatory Search Warrants

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Warrants based on affidavit indicating E w/b found in place to be searched some time in the future are permissible

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PA Knock and Announce

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Police M/knock and announce their presence before executing a search warrant, unless EC

E obtained in violation of KAA likely inadmissible

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PA Investigative Stops

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Unprovoked flight at police approach is a permissible factor in deciding if RS existed to justify an investigative stop

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PA - Particularity of Warrants

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More specificity required than USC

Actual and reasonable particularity is required sufficient to limit gov't discretion in executing warrant

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PA Electronic Surveillance

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Conversations recorded by wired informant or officer using electronic equipment are admissible - including recorded phone calls and patients' recordings during doctor visit

Police CANNOT send informant to a person's home to record conversations and relay them

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PA Miranda Warnings

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Waiver M/b Explicit

Cannot use silence at time of arrest to impeach D at trial

Juvenile/Interested Adult Rule
- evaluate a juvenile's ability to competently waive constitutional rights under totality of circumstances
- opportunity to consult w/ an interested adult is one factor

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PA Rights of Accused in Criminal Proceedings

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Right to confront Ws; child testimony permitted by CCT/video

Right to counsel - violated by admission of statements made by D to a fellow inmate who turns out to be jailhouse informant

Trial by Jury = guaranteed; 12 people if so requested
- right to poll jury after verdict in criminal case

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PA Double Jeopardy

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Prohibits retrial when P misconduct was intended to provoke D into moving for mistrial AND

When conduct of P is intentionally undertaken to prejudice D to point of denial of fair trial

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PA NON CRIMINAL CON LAW RIGHTS

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PA Constitution provides certain non-criminal protections and recognizes:
• Right to protect privacy and reputation when temp PFA is dismissed as null and void the subject of the PFA is entitled to an expungement.
• Right to engage in a common occupation: If law imposes a limitation it cannot be unreasonable, unduly oppressive, or patently beyond the necessities of the case and the means the state employs must have a real and substantial relationship to the object sought to be achieved.

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PA FREE SPEECH DISTINCTION

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• If a private college holds an event open to the public then free speech is allowed.
• Nude dancing is considered expressive conduct so suppression of nude dancing is considered a content-based restriction so the restriction is subject to strict scrutiny which is compelling state interest and least restrictive means.

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GENERAL PA RESTRICTIONS ON LOCAL/SPECIAL LAWS; BLUE LAWS AND SPECIAL LEGISLATION

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NO LOCAL OR SPECIAL LAWS: General Assembly cannot pass a local or special law that has been or can be provided by general law

NO BLUE LAWS

NO SPECIAL LEGISLATION exempting a single school district from general rules for all schools

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SEARCH INCIDENT TO ARREST

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No general auto exception in PA : As it stands, the law in Pennsylvania is that there is no per se exception to the warrant requirement for searches of automobiles like there is under Federal Law. The PA Constitution requires the existence of probable cause to search as well as exigent circumstances to allow the warrantless search of an automobile. PO must have PC.

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EXIGENT CIRCUMSTANCES

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Warrantless searches (1) the gravity of the offense; (2) whether there is a reasonable belief that the suspect is armed; (3) whether there is a clear showing of probable cause; (4) whether there is a strong showing that the suspect is within the premises to be searched; (5) whether there is a likelihood that the suspect will escape; (6) whether the entry was peaceable; (7) the time of the entry, i.e., day or night; (8) whether the officer was in hot pursuit of a fleeing felon; (9) whether there is a likelihood that evidence may be destroyed; and (10) whether there is a danger to police or others."

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PLAIN VIEW DOCTRINE

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Regardless of the circumstances under which it is applied, PVD not an exception to the warrant requirement it merely makes the requirement of a warrant unnecessary where circumstances demonstrate that a warrant has already been obtained or a valid exception is established because of exigent circumstances or because of consent. The PA Superior Court held that under PVD law enforcement officer may seize an item where she views the item after entering a constitutionally protected space with consent or where the view occurs before she has physically entered the constitutionally protected area

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CONSENT SEARCHES

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After a lawful vehicle stop (RS or PC) police may ask for and receive voluntary Consent to search the vehicle. Consent to search by one with access to the area searched, and either common authority over it, a substantial interest in it or permission to exercise that access, express or implied, alone validates a search. In determining whether probable cause exists, we must take into consideration all the attendant facts and circumstances, viewing such facts and circumstances as seen through the eyes of a trained police officer.

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ADMINISTRATIVE SEARCHES

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SCOTUS has upheld warrantless searches by administrative authorities in public schools, government offices, and prisons, and has upheld drug testing of public and transportation employees. In all of these instances the warrant and PC requirements are dispensed with in favor of a reasonableness standard that balances the government's regulatory interest against the individual's privacy interest; in all of these instances the government's interest has been found to outweigh the individual's.

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WARRANT

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Heightened specificity in the details of warrants. No good faith exception to invalid warrant. All evidence seized based on invalid warrant is FOTP.

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FIFTH AMENDMENT GENERALLY and MIRANDA:

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Waiver must be explicit (an outward oral, written, or physical manifestation of waiver). Silence of D prior to Miranda cannot be used to impeach D. Miranda applies to custodial interrogations (RP would not feel free to leave based on totality of circumstances).

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PRIVILEGE AGAINST COMPULSORY SELF-INCRIMINATION

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Applies to testimonial evidence.

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FIFTH AND SIXTH AMENDMENT RIGHT TO COUNSEL

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Fifth, attaches when D invokes. Sixth attaches when D is charged and requires presence of counsel at all critical stages of the proceeding.

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CRITICAL STAGES OF THE PROCEEDING

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1)Appearance in front of a judge for the purpose of issuing formal charges
2) Preliminary hearings (NOT GJ)
3) Indictments (this is where formal charges are brought against the accused in front of a grand jury)
4) Information (this is like an indictment only it is written and presented by a public official rather than a grand jury)
5) Arraignments

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JURY TRIAL

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In all civil and criminal trials, parties have right to a 12 person jury. D has a right to poll jurors individually about their verdict, both D and Commonwealth have right to demand jury in crim case, if PA has in rem proceeding to sell prop seized as instrumentality of crime then owner has right to jury.

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PROSECUTORIAL MISCONDUCT

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Double Jeopardy: Commonwealth cannot retry D whose conviction was overturned as a result of prosecutorial misconduct intentionally done to prejudice D to the point of denying a fair trial.

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SEARCH AND SEIZURE PA GENERALLY

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PA Constitution: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant

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REASONABLE EXPECTATION OF

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to establish a reasonable expectation of privacy a person must establish two things: that the individual had a subjective expectation of privacy; and that that subjective expectation of privacy is one that society is prepared to recognize as reasonable. It is the Defendant's burden to establish his or her privacy interest; after the privacy interest is established, the Commonwealth then needs to show that the subject evidence was not illegally obtained.

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DUI CHECKPOINTS

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suspicionless search & only permitted when trained officers’ conduct brief observations of stopped drivers + unnecessary surprise is avoided by either advance publicity or visibility from a reasonable distance + checkpoint location and times occur when DUI is frequent and the decision over which car to stop is objectively made (cars are allowed to turn around to avoid check point but cannot pass it). Hospital BAC (blood alcohol content) – HC provider cannot release BAC tests w/o a warrant when the tests were performed only for independent medical purposes. Officers cannot pull over a commercial passenger bus w/o reasonable suspicion or PC but they can board a bus w/o RS or PC if they get on a scheduled stop. Canine sniffs are searches in PA, need RS to conduct sniff of prop and PC to conduct sniff of person. Electronic surveillance in home by wired informant requires warrant supported by PC. Bank record seizure and pen register seizure require warrant supported by PC. D still needs to show that he had a reasonable expectation of privacy in thing seized.

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SEARCH/SEIZURE/STANDING GENERALLY

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All persons charged with possessory offenses and all people present for a search have standing. Flight from an attempted seizure where D discards contraband mid-flight is treated as coerced and non-volitional and is a seizure. Anon. tips alone are insufficient for a stop and frisk-they must be accompanied by either evidence that the police broadcast of that info was reliable or there is an independent basis for believing a crime is afoot. No automobile exception to warrantless search. All warrantless searches require both probable cause and exigent circumstances.