Sp Crim Pro Final

Front 1

4TH AM

Back 1

The 4th Am provides that people should be free in their persons from UNREASONABLE searches and seizures.

Front 2

SEARCH

Back 2

A search is defined as a governmental intrusion into an area where a person has a REASONABLE and JUSTIFIABLE expectation of privacy.

Front 3

SEIZURE

Back 3

A seizure can be defined as the exercise of control by the government over a person or thing.

Front 4

Search/Seizure: Reasonableness

Back 4

What is reasonable under the 4th Am depends on the circumstances.

Katz: REP (not something D knowingly exposes to public view); 4th A protects people, not places.

Front 5

ARREST

Back 5

An arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation.

An arrest must be based on probable cause (PC).

Front 6

PROBABLE CAUSE (PC) to Arrest

Back 6

PC to arrest is present when, at the time of arrest the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed a crime.

Front 7

Arrest Warrant (AW) Requirement

Back 7

Police generally need not obtain a warrant before arresting a person in a public place, even if they have time to get a warrant.

FELONY: A PO may arrest a person without a warrant when she as REASONABLE GROUNDS TO BELIEVE that a felony has been committed and that the person before her committed it.

Front 8

STOP & FRISK ("Terry Stop")

Back 8

Police have the authority to briefly detain a person for investigative purposes even if they lack PC to arrest. To make such a stop, police must have a REASONABLE SUSPICION supported by ARTICULABLE FACTS of criminal activity or involvement in a completed crime.

To be valid under Terry, the investigatory stop must be relatively brief and in any event no longer than is necessary to conduct a limited investigation to verify the officer's suspicions.

They may require the person to identify himself, and may arrest him for failure to comply.

Front 9

PROBABLE CAUSE (PC) to Search

Back 9

Based on present location of certain objects.

Info can become “stale.”

Front 10

Automobile Stops

Back 10

Stopping a car is a seizure for 4th Am purposes. Thus, generally police may not stop a car unless they have at least REASONABLE SUSPICION to believe that a law has been violated.

Front 11

Search Incident to Arrest (SITA)

Back 11

A SITA is an exception to the warrant requirement.

The police may conduct a warrantless search incident to an arrest as long as it was made on probable cause.

The police need not actually fear for their safety of believe that they will find evidence of a crime as long as the suspect is placed under arrest.

SITA must be contemporaneous (time and place) with arrest.

Front 12

Search Incident to Arrest (SITA): Scope

Back 12

Incident to a constitutional arrest, the police may search the person and areas into which he might reach to obtain weapons or destroy evidence (his "wingspan") (Chimel); may search area within D’s possession or under his control.

The police may also make a PROTECTIVE SWEEP of the area beyond the D's wingspan if they believe accomplices may be present (Buie).

Front 13

Pat Search -- Dickerson

Back 13

If the officer can immediately recognize that as evidence of a crime or contraband, without any further manipulation, then the officer can reach in and retrieve that item without first obtaining a search warrant.

Front 14

Automobile Exception to Warrant Req't

Back 14

If the police have PC to believe that an automobile contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the vehicle without a warrant.

Define PC with respect to locating evidence. Can refer back to analysis re: Anonymous tip.

Front 15

Ordering D out of Vehicle

Back 15

Officer is permitted to order either the driver or the passengers out of the vehicle for the officer’s safety.

D may argue that it was a prolonged detention.

Front 16

Automobile Exception to Warrant Requirement: SCOPE

Back 16

If the police have full PC to search a vehicle, they can search the ENTIRE VEHICLE (including the trunk) and all containers within the vehicle that MIGHT CONTAIN THE OBJECT for which they are searching.

Front 17

Prolonged Detention

Back 17

Q: Did it become a de facto arrest?

If it became a de facto arrest, it can no longer be supported by reasonable suspicion alone; officer would have to have PC

Analysis: things that can happen on the scene that can justify the officer to prolong the detention for longer than originally allowed.

Front 18

Warrantless Search

Back 18

Warrantless search is presumptively unreasonable under the 4th Am. unless a SW exception may apply. Exceptions:

1) SITA

2) Auto Exception

3) Inventory/Impound Search (Inevitable Discovery)

4) "Pat Search" of Car

Front 19

SITA: Test under GANT

Back 19

Gant says that an officer can search the vehicle of a recent occupant if:

i. The arrestee was not secured and still had access to the car (at time of search); OR

ii. If it is reasonable to believe that the car contains evidence relating to the crime of arrest.

Front 20

Inventory/Impound Search (Inevitable Discovery)

Back 20

Prosecutor may argue that even if none of the previously discussed exceptions would apply, the police would have found the evidence within the vehicle after an impound search (inevitable discovery)

Front 21

Stop & Frisk: SCOPE

Back 21

The scope of the frisk is generally limited to a pat-down of the outer clothing for concealed instruments of assault.

An officer may reach directly into an area of the suspect's clothing, such as his picket, without a preliminary frisk, when she has specific information that a weapon is hidden there, even if the information comes from an informant's tip lacking sufficient reliability to support a warrant.

Front 22

Stop & Frisk: "Pat Search" of Automobile

Back 22

A PO may order persons out of a car if the officer reasonably believes the driver or any passenger is armed and dangerous.

Moreover, the officer may search the vehicle, even if the officer has NOT ARRESTED the occupant and has ordered the occupant out of the vehicle, provided the search is LIMITED TO THOSE AREAS IN WHICH A WEAPON MAY BE PLACED or hidden and the officer possesses a reasonable belief that the occupant is dangerous.

Front 23

PC: Anonymous tips

Back 23

Under Gates: Totality of Circumstances.

--Fluid concept; turns on assessment of probabilities.

TOC—is there a fair probability that contraband or evidence of crime will (presently) be found in particular place?

Front 24

EXCLUSIONARY RULE

Back 24

The exclusionary rule prohibits the introduction, at criminal trial, of evidence obtained in violation of a D's 4th, 5th, or 6th Amendment rights.

Front 25

Fruit of the Poisonous Tree (FOTPT)

Back 25

Generally, not only must ILLEGALLY OBTAINED EVIDENCE be excluded, but also ALL EVIDENCE OBTAINED OR DERIVED from exploitation of that evidence. The courts deem such evidence the tainted fruit of the poisonous tree.

Front 26

Fruit of the Poisonous Tree (FOTPT) -- Exception -- INEVITABLE DISCOVERY

Back 26

If the prosecution can show that the police would have discovered the evidence whether or not they had acted unconstitutionally, the evidence will be admissible.

Front 27

VOLUNTARINESS (14th AM)

Back 27

For confessions to be admissible, the DPC of the 14th Am requires that they be VOLUNTARY. Voluntariness is assessed by looking at the totality of the circumstances (TOC), including the suspect's age, education, and mental and physical condition, along with the setting, duration, and manner of police interrogation.

Front 28

6th Am RIGHT TO COUNSEL

Back 28

The 6th Am provides that in all criminal prosecutions, the D has a right to the assistance of counsel. It applies at all CRITICAL STAGES of a criminal prosecution after formal proceedings have begun.

The right is violated when the police deliberately elicit an incriminating statement from a D without first obtaining a waiver of the D's right to have counsel present.

The 6th Am right has been limited to cases where ADVERSARY JUDICIAL PROCEEDINGS have begun (e.g., formal charges have been filed). Thus, the right DOES NOT APPLY TO PRE-CHARGE CUSTODIAL INTERROGATIONS.

Front 29

6th Am RIGHT TO COUNSEL: Stages when Applicable

Back 29

1) custodial police interrogation

2) post-indictment interrogation whether custodial or not

3) preliminary hearings to determine PC to prosecute

4) arraignment

5) post-charge lineups

6) guilty plea and sentencing

7) felony trials

(more)

Front 30

6th Am RIGHT TO COUNSEL: Stages when NOT Applicable

Back 30

3) pre-charge or investigative lineups

4) photo identifications

5) preliminary hearings to determine PC to detain

(more)

Front 31

6th Am RIGHT TO COUNSEL: Waiver

Back 31

The 6th Am right to counsel may be waived. The waiver must be KNOWING, VOLUNTARY, AND INTELLIGENT.

Front 32

5TH AM (MIRANDA)

Back 32

The 5th Am provides that no person shall be compelled to be a witness against himself. Interpreted to mean that a person shall not be compelled to give self-incriminating testimony

Front 33

MIRANDA: When Required

Back 33

Anyone in police CUSTODY and accused of a crime, no matter how minor a crime, must be given Miranda warnings PRIOR TO INTERROGATION by the police.

Front 34

MIRANDA: Custody

Back 34

Whether a person is in custody depends on whether the person's freedom of action is denied in a significant way.

Under Berkemer, courts use an objective test from suspect's view: Whether a reasonable person in the suspect’s position would feel that his freedom of movement was restricted to the degree associated with formal arrest.

Does not include temporary detentions

Front 35

MIRANDA: Interrogation

Back 35

"Interrogation" refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Front 36

MIRANDA: Waiver

Back 36

A suspect may waive his Miranda rights. To be valid, the gov't must show, by a preponderance of the evidence, that the waiver was KNOWING, VOLUNTARY, AND INTELLIGENT. The ct will look to the totality of the circumstances.

--Waiver not presumed by silence.
--Request for atty must be specific

Front 37

Miranda: Effect of Violation

Back 37

Generally, evidence obtained in violation of Miranda is inadmissible at trial.

However, a confession obtained in violation of the D's Miranda rights, but otherwise voluntary, may be used to IMPEACH THE D's TESTIMONY if he takes the stand at trial, even though such a confession is inadmissible in the state's case in chief as evidence of guilt.

However, a truly INVOLUNTARY confession is INADMISSIBLE for any purpose.

Front 38

FOTPT of Prior Miranda Violation

Back 38

Elstad – when you have a non-coercive Miranda violation, as far as a subsequent warned statement, it is sufficient for the original Miranda violation to suppress the unwarned statement. In Elstad, the questioning was out in the field and was very brief, so there is a substantial factual difference between Elstad or Siebert.

Based on which controls, you either have to do a FOTPT analysis or you don’t. These facts are much closer to Elstad, so you would NOT have to do the FOTPT analysis.