Crim law and procedure Chapter 4-6

judge made law

a rule crafted by judges, not provided for in the constitution can be eliminated by the SC

an arrest warrant definition

a writ issued by a authorized person that instructs a law enforcement officer to bring the person to a magistrate or judge in connection with an offense with which he or she has been charged

who is the decider?

judge in a hearing, jury in a trial reasonable man check

constructive seizure

occurs without any physical touching, grabbing, holding, or use of force when the individual peacefully submits to the officer's will and control

4th amendment

protection from unreasonable search and seizures

who decides the sentence after a conviction

the judge

A search with no particular items in mind in the hopes of finding something seizable is called a fishing expedition.

true

deadly force ?

-Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force. -Never use deadly force, except if absolutely necessary for self-defense or the defense of the life of a third person. The use of deadly force in other circumstances in misdemeanor cases exposes the officer to possible criminal and civil liabilities. -It is constitutionally reasonable for a police officer to use deadly force when the officer has probable cause to believe the suspect poses a threat of serious physical harm, either to the officer or to others.

The Court in US v. Mendenhall suggested the following circumstances could cause a reasonable person to believe they were not free to leave:

-the threatening presence of several officers, -the display of a weapon by an officer, -some physical touching of the person, and -the use of language or tone of voice indicating that compliance with the officer's request was required

Constitution laws

The SC can not eliminate it Congress can not modify it

What are the two types of seizure?

actual and constructive

Stop and frisk

- Fourth amendment protection because it is a type of search and seizure - Types of searches and seizures but less intrusive than arrests - Police need reasonable suspicion not probable cause - objective facts are needed, can't be a hunch - Varies from state to state - Two separate acts - don't need a warrant

terry v. ohio

- Landmark case that declared stop and frisk unconstitutional - Police have the authority to detain a persona briefly for questioning even thought probable cause to believe that the person has committed a crime

Reasonable Suspicion

- Need reasonable suspicion for stop and frisk to be valid - Reasonable suspicion vs. probable cause - Reasonable suspicion ranks lower than probable cause but higher than mere suspicion - States can have a higher standard than reasonable suspicion - Cannot be based on a mere hunch (0% certainty) or suspicion (10% certainty) - Must be specific, objective, and logical US v. Arvizu - Test is totality of the circumstances - Can you search what is on the person "In order to stop and detain someone under the Fourth Amendment, the U.S.

can stopped suspects be forced to answer questions

A suspect who is stopped cannot be forced by the officer to reply to questions. In one case, the Court implied that, although the police have a right to approach any person and ask questions, the person asked does not have any obligation to respond. this may give the officer justification to frisk and can contribute to establish reasonable suspicion or probable cause, so long as other circumstances exist

factors of arrest

-Deprives a person of liberty by legal authority -Mere words are not enough to constitute arrest, there must be restraint -Looks at the totality of the circumstances judged by a reasonable person

terry v. ohio- the frisk

-If circumstances and initial police action are satisfied the officer may conduct a limited search (pat down) 1.Observe. 2.Approach and identify. 3.Ask questions. -If the answers do not dispel the officers' concern for safety, they then follow this procedure: 1.Conduct a pat-down of the outer clothing. 2.If a weapon is felt, confiscate it and arrest the suspect (optional). 3.Conduct a full body search after the arrest (optional).

a warrant is needed if

-If the crime is not committed in the officer's presence -If the suspect is in a private residence and there is no reason for an immediate arrest -In home entries for minor offenses

stationhouse fingerprinting

-Might be permissible even without probable cause to arrest -Narrowly circumscribed procedures are required: ■Need at least some objective basis for suspecting the person of a crime ■A legitimate investigatory purpose for the detention ■Detention at a time not inconvenient for the subject ■Court order stating that adequate evidence existed to justify the detention -Reasonable suspicion alone is not enough ■Must have consent, probable cause, or judicial authorization

investigatory stop

-Police may act without a warrant to stop and briefly detain a person they know is wanted for investigation by a police department in another city. ■An investigatory stop must be temporary and not last any longer than necessary under the circumstances to achieve its purpose. Must be the least intrusive for stop to be valid

stationhouse interrogation

-Probable cause is necessary for a stationhouse detention accompanied by interrogation (as opposed to just fingerprinting) even if no arrest is made. Dunaway v. New York Transporting to police station is distinguishable from questioning on the street

the use of force is governed by

-The Constitution of the United States, particularly the due process clause of the Fourteenth Amendment; •State law, usually the Penal Code or Code of Criminal Procedure, which defines when an officer may or may not legally use force; •Judicial decisions, if any, specifying what type of force can be used and when; and, most important, •Departmental or agency rules.

what is not admissible

1. Illegally seized evidence (the primary evidence) -Contraband, stolen property, crime instruments mere evidence, confession without Miranda (where applicable) 2. Fruit of the poisonous tree (the secondary evidence) -Once primary evidence (tree) is shown to be unlawfully obtained, any secondary evidence (fruit) derived from it is also admissible, subject to a number of exceptions

4 elements of an arrest

1. actual seizure 2. intention to arrest 3. arrest authority 4. the understanding of the individual that he or she is being arrested

types of seizures

1. arrest 2. stop and frisk 3. roadblocks 4. border search

exceptions to the rule

1. good faith 2. inevitable discovery 3. purged tain exception 4. the independent source exception

Court has identified seven situations, based on actual cases, that constitute exceptions under the good faith exception:

1. the error was committed by the judge or magistrate - A judge issuing a warrant against someone without a charge 2. error was committed by a court employee 3. when the police erred accidentally 4. the police reasonably believed that authority to enter was valid 5. when police action was based on a law later declared unconstitutional 6. When the evidence was obtained police officers who relied on mistakes by other officers, as long as these errors were merely negligent and isolated and not systemic, recurring, or deliberate 7. When the police conduct a search in good faith based on established legal precedent, even if the search is later found to be unconstitutiona

if answers do not dispel the officers concern for safety they then follow this procedure:

1.Conduct a pat-down of the outer clothing. 2.If a weapon is felt, confiscate it and arrest the suspect (optional). 3.Conduct a full body search after the arrest (optional).

a frisk must be limited to

A frisk must be limited initially to a pat-down of a person's outer clothing, and only an object that feels like a weapon may properly be seized. -If the object does not feel like a weapon, it cannot be seized. -Plain touch doctrine

the use of force continuum

An escalating series of actions an officer may take to resolve a situation

knock and announce

An officer making an arrest or executing a search warrant must announce his or her purpose and authority before entering the dwelling. The idea is to enable voluntary compliance and avoid violence.

Terry v. ohio- Requirements for the stop

CIRCUMSTANCES. The police officer must observe unusual conduct that leads him or her to reasonably to conclude, in the light of his or her experience, that: - Criminal activity is about to take place or has just taken place and the person with whom he or she is dealing may be armed and presently dangerous INITIAL POLICE ACTION While investigating such behavior, the officer must: - Identify himself or herself as a police officer and make reasonable inquiries

The Inevitable Discovery Exception

Evidence is admissible if the police can prove that they would inevitably have discovered it anyway by lawful means, regardless of the illegal action. -Not could have or might have been discovered - only where it would inevitably be discovered -"Christian burial" case

Good faith exception

The evidence obtained by the police is admissible in court even if there was an error or mistake as long as the error or mistake was not committed by the police. if it was committed by the police the error was honest and reasonable

Arguments for the rule

The exclusionary rule deters violations of constitutional rights by police and prosecutors. 1. It deters violations of constitutional rights by police and prosecutors. 2. It manifests society's refusal to convict lawbreakers by relying on official lawlessness—a clear demonstration of our commitment to the rule of law, which states that no person, not even a law enforcement official, is above the law. 3. It results in the freeing of the guilty in only a relatively small proportion of cases. 4. It has led to more professionalism among the police and increased attention to training programs. Fear that evidence will be excluded has forced the police to develop greater expertise in their work. 5. It preserves the integrity of the judicial system, because the admission of illegally seized evidence would make the court a party to violations of constitutional rights. 6. It prevents the government, whose agents have violated the Constitution, from profiting from its wrongdoing. Somebody has to pay for the mistake—better it be the government than the suspect who has already been wronged. 7. It protects the constitutional right to privacy.

the purpose of a frisk is to

The only purpose of the frisk is for protection of officer or others. -Frisk does not automatically happen after a stop. -Do not need to have reasonable suspicion of danger for stop, just need reasonable suspicion that criminal activity is afoot -Looks at the totality of the circumstances

When the Rule Does not Apply- evidence is seen as admissible

There are eight situations in which the rule does not apply: 1.Violations of the knock-and-announce rule 2.Private searches 3.Grand jury investigations - Grand jury hears indictment 4.Sentencing 5.Arrests based on probable cause that violate state law 6.Violations of agency rules 7.Noncriminal proceedings, and 8.Parole revocation hearings Pennsylvania Board of Probation and Parole

where do most criminal procedural law come from

US court decisions

a stop requires

reasonable suspision

other arrest issues: Can the police detain a suspect while obtaining a warrant

Under exigent circumstances and where there is a need to preserve evidence until a warrant can be obtained, the police may temporarily restrain a suspect's movements without violating his or her Fourth Amendment right

Can the police arrest for traffic violations or petty offenses

Varies from different jurisdictions

use of force at a arrest

reasonableness of a particular use of force must be judged from the perspective of "a reasonable officer on the scene," rather than "with the 20/20 vision of hindsight."

when can you invoke the rule

● Can be raised at almost any stage of the criminal justice proceeding in pretrial motions on appeal in habeas corpus proceedings standing and illegally seized evidence

Exclusionary Rule

● Provides that any evidence obtained by the government in violation of the fourth amendment guarantee against unreasonable search and seizure is not admissible in a criminal prosecution to prove guilt -rule does not apply to the fifth, sixth, and fourteenth amendment

The Rule Now Applies to state criminal prosecutions

● Rochi n v. California 1952 said that the exclusionary rule does not apply to the states, but some searches were so shocking that evidence must be excluded under the due process clause ○ Limited to cases involving coercion, violence, or brutality ● Mapp v. Ohio (1961) is perhaps the second most important law enforcement case ever decided by the court ○ Finally overruled Wolf and held that the fourth amendment required state courts to exclude evidence obtained by unlawful search and seizures

5 situations where police have a general power to arrest without a warrant:

about 95% of all arrests are made without a warrant -Felonies committed in the presence of officers -Misdemeanors committed in the presence of officers -Crimes committed in public places -When exigent (emergency) circumstances are present -When there is danger to the arresting officer

Illegally seized evidence and the "fruit of the poisonous tree" are

admissible under certain exceptions.

intention to arrest

an arrest has taken place when a police officer indicates, by words or deeds, that he or she intends to take the suspect into custody - exists only in the mind of the police officer, but reasonable person standard apply

what begins as a stop and frisk can quickly become an arrest if police believe probable cause has been established t/f?

true

Which of the following acts by a law enforcement officer would not be a seizure of a person?

asking questions

the exclusionary rule only applies to criminal proceedings not

civil or administrative hearings

Both stop and frisk and arrests

invoke Fourth Amendment protection

bench warrant

issued when a person does not appear for a hearing

Mapp v. Ohio said what about the exclusionary rule

it is applicable to state criminal proceedings

The purpose of the rule is to

deter police misconduct ● The assumption is that if the evidence obtained illegally is not admitted in court, police misconduct cases will cease or be minimized ● Promotes judicial integrity

standing

determines whether a person can legally file a lawsuit the exclusionary rule may be used only by the person whose fourth amendment rights have been violated, and whose reasonable expectation of privacy was breached

exigent circumstances

emergency circumstances that make obtaining a warrant impractical, useless, dangerous, or unnecessary, and that justify warrantless arrests or entries into homes or premises.

The Purged Taint Exception

evidence obtained is admissible if the defendant's subsequent voluntary act dissipates the taint of the initial illegality -A defendant's intervening act of free will is sufficient to break the causal chain between the tainted evidence and the illegal police conduct, so the evidence becomes admissible . -The police broke into a suspect's house illegally and obtained a confession from him, but the suspect refused to sign it. The suspect was released on his own recognizance. A few days later, he voluntarily went back to the police station and signed the confession. The Court said that the suspect's act indicated free will and therefore purged the tainted evidence of illegality. Wong Sun -Intervening event must be meaningful ■Unlawful arrest + Miranda = inadmissible ■Case by case basis

The Independent Source Exception

evidence obtained is admissible if the police can prove that it was obtained from an independent source not connected with the illegal search or seizure Example: a 14-year-old girl was found in the defendant's apartment during an illegal search. The girl's testimony that the defendant had sexual relations with her was admissible because she was an independent source that predated the search of the apartment. Prior to the search, the girl's parents had reported her missing, and a police informant had already located her in the defendant's apartment State v. O'Bremski

A citizen's arrest is authorized by the Constitution.

false

If an officer has reasonable suspicion to stop someone, they must frisk them for public safety reasons.

false

Nondeadly force can only be used if it is based on probable cause.

false

The exclusionary rule applies to grand jury investigations.

false

The perception of the person being detained determines whether a person has been arrested

false

the exclusionary rule applies to searches and seizures by civilians

false

The first question should be whether in fact a seizure under the ___ amendment has occurred

fourth

if the reasonable suspicion from the search does not go away then you can

frisk

the silver platter doctrine...

has been overruled by the supreme court

A frisk can lawfully take place after a stop

if the officer has safety concerns

when is a stop a seizure

in view of all of the circumstances -a reasonable person -not free to leave

differences between independent source exception and purge taint

independent source: evidence is obtained from a source not connected with the illegal search or seizure purged taint: the evidence was obtained as a result of an illegal act

When the prosecution can show that the police would later have found the evidence in question anyway using lawful means

inevitable discovery

In Mapp v. Ohio, the U.S. Supreme Court:

made the exclusionary rule applicable against the states.

least intrusive means

must not be more than that needed to verify or dispel the officer's suspicions

even if the officer thinks the individual has drugs can they frisk them?

no

arrest authority

off duty arrests vary from state to state

arrests are only __ form of seisure

one

silver platter doctrine

permitted federal courts to admit evidence illegally seized by state law enforcement officer and handed over to federal officers for use in federal courts ○ This was admissible because the illegal act was not committed by federal officers ○ This was in effect until 1960

arrests are seizures of

persons

in searches by private persons

prosecutors may wire tap private citizens to get evidence as long as prosecutors did not encourage, assist, or participate in the illegal private search

it is the perception of the ___based on the _____

reasonable person; totality of circumstances

If a person is taken to or kept at a police station without their consent and without an arrest warrant, for the purpose of taking fingerprints, the police must have:

reasonable suspicion

historical development in federal courts

● The exclusionary rule is of U.S origin ● The first case involving searches and seizures was heard in 1886. Boyd v. US ● The exclusionary rule was first applied to all federal prosecutions in Weeks v. Ohio (1914) -silver platter doctrine

harmless error

● prosecutor must show beyond a reasonable doubt that the evidence admitted did not contribute to the conviction

dentention must not be longer than that .___ and it must take place by the ____

required by circumstances; least intrusive means

6th amendment

right to a speedy and public trial. right to a fair jury. right to know what you are being accused of. right to see/hear witnesses against you. right to have a witness to help defend you. right to a lawyer.

5th amendment

right to grand jury protection against self incrimination

only defendants with ___ can invoke the exclusionary rule

standing

this rule applies to ___ and ___ cases

state and federal

an arrest is defined as

taking of a person into custody against his or her will for the purpose of criminal prosecution or interrogation.

actual seizure

taking the person into custody with the use of hands or firearms (denoting use of force without touching the individual) or by merely touching the individual with the use of force

if someone is voluntarily at the police station

that is not an arrest

Rochi v. California said what about the exclusionary rule

that it does not apply to the states, but some evidence were so shocking that evidence must be excluded under due process clause

the more intrusive the seizure...

the greater is the protection given by the courts

frisks are done only for

the officers safety and the people around

if stop and frisk gives probable cause to arrest, then

then police can do a more invasive search ■Reasonable inquiries are required before a frisk if officer already has reasonable suspicion before asking questions ■Cannot be used as a "fishing expedition"

the police may not enter a private home to make a routine warrantless arrest unless

there is consent and exigent circumstances

arrest warrant

to arrest and bring before magistrate

During a valid stop of an automobile, officers can search the passenger compartment immediately, even if the suspect refuses.

true

T/F with a seizure you are not always arresting someone

true

The purpose of the exclusionary rule is to deter police misconduct.

true

Without justification, the overt display of police weapons during a stop may convert the stop into an arrest.

true

stop and frisks are two separate acts with their own legal requirements t/f

true

true or false: the exclusionary rule is not applicable in all fourth amendment proceedings

true

does unprovoked flight constitute reasonable suspicion

unprovoked flight upon observing police officers may constitute reasonable suspicion sufficient to justify a stop. -Could be suggestive of wrongdoing

what do warrants include

vary state to state 1. which court is issuing it, 2. the name of the person to be arrested, 3. the offense charged and some specifics of the offense 4. , an order for the officer to bring the arrested person before the issuing court, 5. the date the warrant was issued, 6. and the judge's or magistrate's signature.

John Doe warrants

well described in the warrant but not identified by name

what is a seizure

when there is a governmental termination of freedom of movement

what is the appropriate test to determine whether a seizure has occurred

whether a reasonable person viewing the police conduct would have concluded that the police had in some way restrained a person's liberty so that he or she was not free to leave.

Are citizen's arrests valid

yes if crime is a felony or misdemeanor involving breach (varies) of the peace and citizen has probable cause -Issues can arise -Allowed to use reasonable force

invoking the rule- pretrial motions In pretrial motions to suppress evidence the basic procedure for excluding evidence on a claim of illegal search and seizure

■ Can be filed against during trial -If search/seizure was based on a warrant there is a presumption that its valid and must show there was no probable cause ■ If no warrant prosecution has to show probable cause or exception to the warrant requirement

invoking the rule -Standing and illegally seized evidence

■ Can only raise issues and seek remedies if the defendant has standing ■ Must have reasonable expectations or privacy

invoking the rule- on appeal

■ If the accused is convicted, can appeal the judge's decision to admit the evidence ■Interlocutory appeal - harmless error ■if acquitted, no appeal on either side

invoking the rule In Habeas Corpus Proceedings

■ When constitutional rights were violated and imprisonment is unconstitutional ■ Strict limitations

Interlocutory appeal

■ prosecutor can appeal decision to suppress immediately prior to trial

the frisk

■A frisk is a pat-down for weapons. -It can follow a stop, but only if there is nothing in the initial stages of the encounter that would dispel fears based on reasonable suspicion about the safety of the police officer or others.

the stop

■A stop is justified only if the police officer has reasonable suspicion, in light of his or her experience, that criminal activity is about to take place or has taken place. A stop for anything else (such as to search for evidence) is illegal. ■A frisk does not automatically take place after a valid stop. Office needs reasonable suspicion to fear for their safety or safety of others. ■Race and Stops -Discrimination based on race is generally prohibited because race is a highly protected category under the Constitution and in various federal and state laws. -Studies show that black drivers are three times more likely and Hispanic drivers are two times more likely to be searched than white drivers -Must have a valid reason to stop, but the Supreme Court has not directly addressed the issue as to weather it can be a factor in the totality of the circumstances

Alternatives to the Rule

■An independent review board in the executive branch. ■A civil tort action against the government. ■A hearing separate from the main criminal trial but before the same judge or jury. ■Adoption of an expanded good faith exception. Not just when the magistrate issues an invalid warrant). It is based on two conditions: -The officer must allege that he or she had probable cause for the action in question, and -the officer's apparent belief that he or she was acting legally must be a reasonable one.

what police can't do during an arrest

■Enter a third-party residence, except in exigent circumstances. ■Conduct a warrantless sweep. -Where the police look at rooms or places in the house other than where the arrest takes place. Must be limited ■Invite the media to ride along. -Reasons for doing so cannot justify invasion of privacy

are stops based on hearsay information and anonymous tips valid

■Hearsay vs Anonymous Tips -Hearsay is valid for a stop -There must be independent police work to make a stop based on an anonymous tip valid

Stationhouse Detention- not an arrest

■Lesser limitation on freedom than arrest but greater than stop and frisk on the street ■Obtaining fingerprints or photographs, ordering police lineups, administering polygraph examinations, and securing other identification or physical evidence. More intrusive

Stop and Frisk: Motor Vehicles

■Motorists are subject to stop and frisk under the same circumstances as pedestrians. -Applies to passengers as well ■Once a police officer has lawfully stopped a vehicle for a traffic violation, he or she may order the driver to get out even without suspecting any other criminal activity or threat to the officer's safety. ■Plain view can lead to seizure and arrest ■Police may also conduct a brief search of the vehicle after a stop if the officer has a reasonable suspicion that the motorist is dangerous and that there might be a weapon in the vehicle to which the motorist can quickly reach for. -Limited search

Arguments against the rule

■Opponents, including justices of the Supreme Court, have opposed the exclusionary rule. -t is wrong to make society pay for an officer's mistake—punish the officer, not society. -It excludes the most credible, probative kinds of evidence—fingerprints, guns, narcotics, dead bodies—and thereby impedes the truth-finding function of the courts.* -It discourages internal disciplinary efforts by law enforcement agencies. -It encourages police to perjure themselves in an effort to get the evidence admitted. Particularly in major cases, the police might feel that the end justifies the means—in other words, it is better to lie than to let a presumably guilty person go free. -It diminishes respect for the judicial process and generates disrespect for the law and the administration of justice.* -There is no proof that the exclusionary rule deters police misconduct. -Only the United States uses the exclusionary rule; other countries do not. Justice Scalia says, "[It] has been 'universally rejected' by other countries." -It has no effect on those large areas of police activity that do not result in criminal prosecutions. If the police make an arrest or search without any thought of subsequent prosecution (such as when they simply want to remove a person from the streets overnight or when they confiscate contraband to eliminate the supply), they do not have to worry about the exclusionary rule, because it takes effect only if the case goes to trial and the evidence is used. -The rule is not based on the Constitution; it is only an invention of the Court. -It does not punish the individual police officer whose illegal conduct led to the exclusion of the evidence.

search incident to arrest steps

■Search the arrestee, including a strip search. ■Search the area of immediate control. ■Search the passenger compartment of a motor vehicle. ■Use handcuffs. ■Monitor the arrestee's movements. ■Collect DNA sample ■Search the arrestee at the place of detention.

Stop and Frisk: Residences

■The Court has authorized the police practice of limited "protective sweeps" without a warrant while officers are conducting an in-house arrest of a suspect. Maryland v. Buie -there must be "a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene"; -the sweep must extend only to a "cursory inspection of those spaces where a person may be found"; and -the sweep must last "no longer than it takes to complete the arrest and depart the premises."

Exceptions to knock and announce occur in situations of officer or third-party safety or to preserve evidence.

■When announcing presents a significant threat of danger to the officers—for example, when the police are serving a warrant on a fugitive who is armed and dangerous. ■When there is danger that contraband or other property sought might be destroyed. Some states permit a magistrate to issue so-called "no-knock" search warrants, particularly in drug cases. They authorize entry without announcement because otherwise the evidence might be destroyed. ■When officers reasonably believe that persons within the premises are in imminent peril of bodily harm, as when the police hear a scream for help from inside a residence. When people within are reasonably believed to be escaping because they are aware of the presence of the police. ■When the person to be arrested is in the process of committing the crime.

the understanding of the individual that he or she is being arrested must be conveyed to arrestee not required if:

■the suspect is drunk or under the influence of drugs and does not understand what is going on, ■the suspect is insane, and ■the suspect is unconscious.

inventory search objectives:

■to protect the arrestee's property while he or she is in jail, ■to protect the police from groundless claims that they have not adequately safeguarded the defendant's property, ■to safeguard the detention facility by preventing the introduction of weapons or contraband, and ■to ascertain or verify the identity of the person arrested.