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13 Cards in this Set
- Front
- Back
NY PC determination
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Application for a search warrant must demonstrate BOTH
- VERACITY (reliability of the source), AND - BASIS of the snitch’s knowledge |
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NY Defective warrants
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REJECTS the “good faith” reliance doctrine
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NY Auto passenger standing
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Can challenge the POSSESSION of weapons, if POSSESSION is attributed to them
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8 Exceptions to the warrant req't
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#1 Exigent circumstances
#2 Search incident to arrest #3 Consent (voluntary + intelligent) #4 Automobile (PC that contraband/evidence will be found, can search trunk) #5 Plain view (Lawful access to Place + lawful access to ITEM + IMMEDIATELY APPARENT) #6 Inventory searches #7 Special needs #8 Terry stop & frisks |
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Search incident to arrest
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- Arrest must be lawful
- Search must be contemporaneous in time & place w/ arrest - Geographic scope: Body, clothing, pockets, any containers/effects w/in wingspan -- NY: To search CONTAINERS w/in the wingspan, 50 must suspect arrestee is ARMED - Auto SitA -- Scope: Interior cabin, closed containers, but NOT trunk -- Location of suspect: Can search interior PROVIDED there was reason to believe that the car may contain evidence relating to the offense for which the arrest was made --- NY: Once occupant is out of the car, 50 CANNOT search closed containers or bags in the car |
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Terry stops
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Brief detention or seizure for the purpose of investigating conduct
- RS: Specific & articulable facts that inform 50’s belief that criminal activity is afoot |
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Terry frisks
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Pat-down of the body & outer clothing for weapons
- RS: Specific & articulable facts that suggest a suspect is armed & dangerous What can be seized: - Federal: ALWAYS weapon; contraband must be IMMEDIATELY APPARENT (w/o manipulating the object, e.g., crack pipe) - NY: Item ONLY if it feels like a weapon |
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Seizure (pursuit by 50)
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MS: Seized ONLY IF (either or)
- She submits to 50’s authority by stopping - 50 physically restrains her NY: Police pursuit is a seizure in & of itself |
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NY Indelible Right to Counsel
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- Provides GREATER protection than 6A
- ATTACHES not only at formal charging, but whenever there is significant judicial activity before the filing of an accusatory instrument, such that D may benefit from the presence of counsel - If D is taken into custody for questioning on a charge AND 50 are aware that she is represented by counsel ON THAT CHARGE, they may not question her about that charge or any other matter w/o her attorney present - If, however, the same D is released and is later taken into custody for questioning on an UNRELATED charge, the indelible right to counsel does not automatically attach to the subsequence charge - If D is represented by counsel, waiver of the indelible right to counsel must take place in the attorney’s presence |
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NY Pretrial-ID
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Right to have counsel present @ line-ups BEFORE filing formal charges IF
#1 50 aware that D have counsel, AND #2 D request counsel be present |
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NY Double Jeopardy
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“Transaction test” which requires that D be charged w/ all offenses arising from a single transaction, UNLESS (4 possibilities)
- Offenses have substantially different elements - Each offense contains a single element not in the other and they vindicate different harms - One is for criminal possession and the other, use - Each offense involved harm to a different V |
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Jeopardy attaches...
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- Jury trial: When jury is sworn
- Bench trial: When the 1st W is sworn - Guilty pleas: When the Ct accepts D’s plea unconditionally |
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Taking the 5th
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- Anyone can assert the privilege (including D, W, parties to a civil proceeding)
- It must be asserted @ the first opportunity or it is lost forever - Privilege can be asserted in ANY PROCEEDING where an individual testifies under oath -- NY: Privilege cannot be asserted in a grand jury proceeding - Privilege applies only to COMPELLED TESTIMONY, and not in state’s use of D’s body/voice - P CANNOT comment on the assertion of 5A privilege - 3 ways to eliminate the privilege -- P grant of “use & derivative use” (“use & fruits”) immunity, which means prosecution can’t use your testimony or any thing derived from it to convict you --- You can be convicted based on evidence obtained PRIOR to grant of immunity --- NY “transactional immunity” shields W from prosecution for ANY TRANSACTION they testified about in their immunized testimony -- D taking the stand: By taking the stand, D waives the ability to take the 5A as to ANYTHING properly w/in the scope of CE -- SoL: Privilege unavailable if SoL has run on the underlying crime b/c a W’s testimony could not expose her to criminal prosecution |