Criminal Pro

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Fourth amendment - search and seizure

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Evidentiary searches and seizures must be reasonable to be valid under the fourth amendment. Reasonableness requires a valid warrant, unless a warrant exception applies.

A 4th amendment violation requires a person with standing, government action, and no valid warrant or applicable warrant exception.

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Standing

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To object to the admission of illegally seized evidence: a defendants own rights must be violated, the defendant Must show ownership of, or possessory interest, of the items seized, and the defendant must have a legitimate expectation of privacy in the physical area searched.

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Government action

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The fourth amendment limits government action, not the acts of a private party, unless the private party acts as an instrument or agent of the government.

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Warrant

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A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, supported by oath or affidavit, and describe with particularity the places to be searched and the items to be seized.

Exceptions:

Good faith exception: if a police officer acts in good faith on the facially valid warrant that is later determined to be in valid than the evidence seized will not be surprised does not apply if the warrant was obtained by fraud.

Stop and Frisk

Consent: A warrantless search is valid if the police have a voluntary and intelligent consent. Lawful authority acquiescence is not consent.

Plainview: a police officer legitimately on the premises may seize an item in Plainview if the incriminating character of evidence is immediately apparent.

Search incident to lawful arrest: in a lawful arrest, the police may search the person and wingspan.

Hot pursuit: if police have probable cause to believe an individual has committed a felony, and pursues to arrest the fleeing felon, they may make a warrantless searches and seizures, and even pursue the fleeing felon into a private building.

Emergency situations: a search without a warrant is authorized when there’s reasonable apprehension the delay required to obtain a warrant will result in immediate danger of evidence destruction, the safety of the officer or public is threatened, or a suspect is likely to flee before a warrant can be obtained.

Evanescent evidence: Evidence that would disappear if the police we do to obtain a warrant may be seized without warrant.

Routine international border: fourth amendment does not apply to routine international border searches.

Automobile checkpoints: police may set up roadblocks to stop cars without reasonable suspicion if neutral stops with articulable standard and it’s designed to serve purpose regarding cars.

Administrative inventory search: if search is performed under standard procedure after being awfully taken into custody no reasonableness required under fourth amendment.

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Fifth amendment Due process clause

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The due process clause of the fifth amendment, applicable to the states through the 14th amendment, prohibits a pre-trial identification process that is unnecessarily suggestive and where there is a substantial likelihood of miss identification.

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Fifth amendment Right to counsel

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The fifth amendment right to counsel protects against the right to be free from compelled self incrimination. A pre-trial identification is not considered interrogation.

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Sixth amendment - Right to counsel

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The sixth amendment, applicable to the states through the 14th amendment, provides the accused with the right to counsel in all felony cases and misdemeanor case imposing actual incarceration, at all critical stages of a prosecution, from formal charge until sentencing, such as custodial police interrogations and arraignments unless waived.

Ineffective counsel: The sixth amendment right to counsel encompasses the right to be assisted by a reasonably competent attorney. An attorney is ineffective when representation falls below an objective standard of reasonableness and the deficient performance prejudices the defendant resulting in an unreliable or fundamentally unfair outcome in the proceeding.

Waiver: a defendant has a right to refuse counsel and proceed pro se at trial, unless the request is in timely, if a court finds the waiver knowing and intelligent.

Standby counsel: a criminal defendant who elects to proceed pro se has no constitutional right to assistance of counsel. The grant of standby counsel is at a judges sole discretion.

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Fifth amendment – Miranda

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The fifth amendment, applicable to the states through the 14th amendment, provides that No person shall be compelled in any criminal case to be a witness against himself. Any statement obtained as a result of custodial interrogation may not be used against a suspect at trial, unless the police inform the suspect of Miranda rights, and the suspect intelligently waives those rights.

Custodial: When is in custody if he does not reasonably feel free to leave.

Interrogation: Interrogation is defined as any words or conduct likely to elicit and incriminating response.

Volunteer statements: volunteer statements from a defendant are not protected by Miranda. A confession is involuntary only if the police coerce the defendant into making the confession. Whether a statement is voluntary is determined based on the totality of the circumstances. Unlawfulness of arrest may be considered.

Miranda rights: Once custodial interrogation begins, to secure the privilege against self-incrimination, anything the defendant says is in admissible until the defendant is informed of Miranda rights and the defendant intelligently waves those rights. The right to counsel is not automatic. Once the defendant invokes the right to counsel all interrogation must stop until counsel is present, unless the defendant voluntarily initiates communication with the police.

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Exclusionary rule

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Under the exclusionary rule evidence obtained in violation of the fifth or sixth amendment may not be introduced at trial to prove girl.

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Search and seizure

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A search occurs when state action violates a reasonable privacy expectation. A seizure occurs when a reasonable person believes he is not free to terminate a state encounter, or a state exercises control over property the person has ownership of or possessory interest in.

Unreasonable - stop and frisk

If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may stop a person for investigative purposes.

If the police have reasonable suspicion that the detainee is armed and dangerous, they may frisk the detainee for weapons.

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Fruit of the poisonous tree -Unconstitutional search and seizure

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Under the fruit of the poisonous tree doctrine, the exclusionary rule extends to secondary evidence obtained as a result of an unconstitutional search and seizure, unless an exception to the fruit of the poisonous tree Doctrine applied.

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Exceptions to the fruit of the poisonous tree Doctrine

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Secondary evidence may be admissible if a fruit of the poisonous tree doctrine exception applies: purged taint, inevitable discovery, or independent sources.

Purged taint: passage of time or intervening events may sufficiently attenuate the causal connection between secondary evidence and primary taint to permit use of evidence at trial

Inevitable discovery: secondary evidence may be admissible if the evidence will be inevitably discovered through lawful means.

Independent source: secondary evidence may be admissible if the evidence is discovered in part by an independent source and unrelated to the tainted evidence.

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Fifth amendment privilege against compelled self-incrimination

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Under the fifth amendment a defendant may refuse to testify at a criminal trial.

Due process: a criminal defendants right to testify on his or her own behalf is essential to due process and a fair trial but does not extend to testifying falsely. Professional responsibility prohibits an attorney from knowingly offering false evidence but does not give the attorney authority to prevent the defendant from taking the witness stand.

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Guilty pleas

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Defendant may waive constitutional rights- must be voluntary and knowingly court must advise defendant of right to trial right to not plea right to counsel critical elements maximum and minimum sentence right to appeal etc

With drawl of plea: defended me with drawl guilty plea if defendant can show failure to meet standards for taking complete.

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Kidnapping

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Unlawful confinement of a person against that persons will coupled with movement or hiding of person.