Combo Crim pro

Confessions should be analyzed for two separate violations

1. Whether there's a Miranda violation (5th and/or 6th amendment) 2. Whether there's voluntariness (5th amendment)

Warrantless Thermal Imaging Is A Violation of 4th Amendment Rights

A search warrent is necessary for thermal imaging b/c = a search that penetrates the inside of a house. (Kyllo)

Searches When There Are Special Needs

A special category of searches where warrants do not need to be obtained and often where less than PC is required because of a significantly reduced expectation of privacy: 1. Admin. Searches 2. Border crossing 3. Checkpoints 4. Schools 5. Government ee's 6. Drug testing 7. DNA testing 8. Searches of jails and prisons 9. Searches of those on parole and probation

Warrants and Probable Cause:

A warrant must be based on a police officer's sworn affidavit, presenting adequate facts, to support a finding of probable cause. Situations to look out for: The affidavit must state adequate facts that lead the magistrate to conclude that probable cause exists. An officer's conclusions do not constitute "adequate facts."

Warrants and Specificity:

A warrant must be reasonably specific. Note: The key is reasonableness. If one street number is listed for several apartments, the warrant is not reasonably specific. However, a description of the "type" of documents to be searched for is "reasonably specific."

Public Place Arrest Rule

A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer's presence, is allowed as long as there is sufficient probable cause (Maryland v. Pringle and Atwater)

Define "Capias"

A writ issued by court or clerk, directed "to any peace officer of the State of Texas" commanding the arrest of the accused before the court immediately, or on stated date.

Define "Summons"

A writ notifying a defendant that an action has been commenced against him and that requires the defendant to appear before a magistrate at time and place specified

Define "Warrant of Arrest"

A written Order from a magistrate directed to peace officer or some other person specifically named, commanding him to take the body of the person accused of an offense to be dealt with according to the law

Elstad

ADMITTING FRUITS OF A MIRANDA VIOLATION The second confession will not be deemed tainted as long as it was voluntarily made and the court will usually presume it was. NOT deemed tainted if the failure to warn prior to the first confession was the result of an inadvertent mistake by the police. o Elstad governs for all cases that don't use the "Missouri-two-step" of Seibert. EXCEPTION TO MIRANDA -28

Watson

ARRESTS IN PUBLIC public arrests in the absence of a warrant permitted; probable cause still required. ARREST - 6

Warrantless Searchs Are Reasonable Under These 6 Exceptions:

ASPICE A = Automobiles S = Search and Frisk P = Plain View I = Incident To Lawful Arrest C = Consent E = Exigent Circumstances

Warrantless Home Entry To Arrest Suspect On P/C

Absent exigent circumstances, police cannot arrest suspect in home w/out warrant unless p/c arises in home after police are lawfully in the home (ie to execute search warrant). i. Different from Watson (public place) and Payton (in home).

Right To Transcripts

Accused has a right to court transcripts because they cannot appeal without a transcript of what happened in lower courts. (Griffin)

Administrative Agencies and Exceptions to the Warrant Requirement:

Administrative agencies do not require a warrant for searches regarding the following: 1. students 2. airline passengers 3. probationers' homes 4. government employees' desks and files 5. contaminated food 6. highly regulated industries 7. general and neutral enforcement plans

Warrantless Searches and General and Neutral Enforcement Plans

Administrative agencies may hold inspections without a warrant pursuant to a general and neutral enforcement plan. Situations to look out for: The administrative agency must be able to demonstrate that there is a reasonable suspicion that some buildings in the target area are out of compliance. The agency may then institute a general plan of "spot checking." However, the plan must be such that it does not give rise to selective enforcement.

To Be "Seized" Person Must Submit To Authority

In order for there to be a seizure, the person must submit to authority. i. A mere police chase does not amount to a seizure.

Determinations of Probable Cause to Prosecute:

In some states and in the federal system, grand jury hands down an indictment, while in others, charges are filed by the prosecutor.

County Court

Original Jurisdiction of all misdemeanors when: -Justice court does not have exclusive jurisdiction; and -Fine imposed exceeds $500 *Appellate jurisdiction in cases appealed from justice courts and other inferior cases

Mapp

Overruled Wolf. Extended ER to the State and Federal government.

Oliver

OPEN FIELDS - NOT A SEARCH - no 4th amend. protection in open field because no legitimate expectation of privacy in an open field 4TH AMENDMENT SEARCHES - 2

Standard for PC

Objective; focuses on what the REASOANBLE officer could have done in the circumstances. D's argued that the officer's asserted grounds for approaching his vehicle to give a traffic warning were PRETEXTUAL or pretense or contrived. The argument was irrelevant because the subjective intent of the police officer was irrelevant.

Safety or Emergency Aid

Officer may enter home without warrant when he has an OBJECTIVELY REASONABLE BASIS to believe that an occupant is seriously injured or IMMINENTLY threatened with such injury.

Securing Premises While Warrant Is Obtained

Officers may secure the premises from within, while others in good faith are in the process of obtaining a search warrant, and with probable cause may arrest the occupants who have a legitimate possessory interest in the contents. (Segura)

Can Police Use Drug Detecting Dog On Routine Traffic Stop?

On a lawfully detained stop based on reasonable suspicion, the police may use drug-sniffing dogs. (Caballes)

Permissible Scope of Search "Incident To Arrest"

Once a person is lawfully in custody pursuant to a lawful arrest, the police may do a FULL exploratory search over that person for ANYTHING they can find. (Robinson)

Bodily Fluid Extraction After In Custody

Once a person is lawfully in custody, police can take bodily fluids from them and it is not a violation of 4th amendment rights.

When One is Entitled to a Speedy Trial:

Once an individual is arrested or charged, he is entitled to a speedy trial.

Government's Burden and Tainted Identifications:

Once the defendant establishes a prima facia case, the burden is on the government to demonstrate that the in-court identification was based on a source independent of the pre-trial identification. Situations to look out for: The fact that an attorney was present or that the right to an attorney was waived, may defeat a constitutional challenge. However, in order for evidence to be admitted, it must be reliable. The fact that an attorney was present or the right to an attorney was waived, would not make an unreliable identification admissible. Note: When taking an exam, students should identify the fact that, while placing one in a lineup, taking one's handwriting sample, or taking one's blood could be construed to be forcing one to testify against one's self, courts have held that these acts are not testimonial in nature and, consequently, the privilege against self incrimination does not apply.

When Has One Been Subjected to Trial:

One has been subjected to trial when the jury is sworn or the first witness is sworn.

District Court

Original Jurisdiction in Criminal Case -with the grade of felony -All Misdemeanors involving official misconduct; -Misdemeanor cases transferred to the district court under the CCP

Justice Court

Original Jurisdiction in criminal cases: -when punishable by fine only; - Punishable by fine and sanction authorized by statute (no confinement or imprisonment) -Arising under Ch. 106, Alcoholic Beverage Code (ABC)

Warrantless searches and the Immigration and Naturalization Service:

The Immigration and Naturalization Service may check all the employees of a business to determine citizenships without a warrant. Note: Even though a warrant is not needed, the I.N.S. may not abuse its discretion.

The Juvenile Justice System:

The Juvenile Justice system is designed to rehabilitate rather than to punish minors.

For non english speakers how must the police give the miranda waiver ?

The Miranda warning must be given in a language the suspect can understand.

Define "Arraignment"

The Process whereby the accused is warned of his constitutional rights, bond is set, his identity is established, and his plea is heard.

Preference For Warrants

The Supreme Court has long expressed a strong preference for searches made pursuant to a search warrant. And, on occasion has even asserted that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures. (Ventresca)

Define "Complaint"

The affidavit that charges the commission of an offense

What Constitutes a Significant Restraint on One's Liberty:

The following are examples of significant restraints on one's liberty: 1. incarceration 2. imposing bail 3. pretrial restrictions Situations to look out for: Being released on one's own recognizance is not usually considered to be a significant restraint on one's liberty. However, be prepared to argue if other restrictions are imposed.

S/W Impacting 5th Amend. Rights

The lawful seizure of a person's business records, or other documents which contain incriminating information, does not undermine the protections of the Fifth Amendment. Compelled self-incriminating testimony is protected by the Fifth Amendment. (Anderson)

Limited Area of Permissible Scope of Search "Incident To Arrest"

The limit of an arrest search is the search of a person's body, clothing , and the area within his immediate control (think "arms reach" & area where person is arrested. Cops can't arrest and then bring person over to a place and search them in the new area). (Chimel)

What is search incident to arrest .

following a lawful custodial rest a full search of search of the person is an exception to the warrant requirement.

What is the purpose of the knock and announce Rule

protect life, destruction of property protect privacy and dignity.

verdict

the prnouncement of defendants guilt or innocence. a third pronouncement relating to mental health can occur in some states

discovery

the procedure used in a case to obtain information from the other party.

criminal procedure

the process followed by the police and the courts in the apprehension and punishment of criminals.

release on recognizance (ROR)

the release of a person without monetary bail.

jury nullification

when a jury decides a case contrary to the weight of the evidence presented during trial.

Incident To Arrest Search Extended To Autos

when a person is a recent occupant of a motor vehicle and lawfully arrested, police can do a search "incident to arrest" in automobile by only searching the passenger areas of the vehicle (not trunk) (Belton)

What must the prosecution prove to demonstrate that consent was voluntarily given.

when the subject of a search is not in custody the state must show that consent was voluntary given and not the result of duress or coerces expressed or implied. Voluntariness is a question of fact to be determined from all the circumstances and while the subjects knowledge of a right to refuse is a factor to be taken into account the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent.

Seibert

where police intentionally question a suspect and get a confession, give the Miranda warnings and get another confession, the post-warning statements are inadmissible (as are the first statements because no Miranda warnings given). - MISSOURI TWO STEP EXCEPTION TO MIRANDA -28

Define "Search Warrant"

written order by magistrate to peace officer commanding him to SEARCH FOR AND SEIZE any property or thing, or search for and photograph a child and to deliver exposed film to the magistrate.

Exclusionary Rule To Quasi-Criminal (Non-Criminal) Proceedings

• Like the 6th amendment right to counsel, courts are reluctant to extend ER beyond criminal trials.

Automobiles and Warrantless Searches: Situations to look out for:

• Motor homes generally are treated as cars because of their mobility, however if they are "fixed" to a place (i.e., on blocks) an argument can be made that the auto-exception should not apply. • Be prepared to argue that there is a greater expectation of privacy in a motor home than an automobile

What case establishes the Wing Span test

Chimel v. Ca

In executing the warrant, the officer may call to his aid ________

Citizens

Confessions and "Fruit of the Poisonous Tree:

" While it is unsettled, courts have held that physical evidence discovered from an invalidly obtained confession is admissible, even though the confession is not. Situations to look out for: It should be noted that this is in sharp contrast to the Exclusionary Rule, whereby anything discovered as a result of illegally obtained evidence is inadmissible.

Consensual Encounters Not Amounting To Seizures

(1) If reasonable person would feel he is not free to leave, this will be deemed a "seizure" within the meaning of the 4th Amendment. (2) If police treat person as if he is under arrest (ie "lets go to the security office") then this is tantamount to an arrest and must be supported by p/c, (3) if otherwise voluntary and consent is obtained during unlawful detention/arrest then consent is invalid. (Royer)

What are the parts of a warrant

(2) the affidavit: Sworn Statement Order: Where the judge signs.

Arizona v. Hicks

- Bullet fired through an apt. floor, police enter looking for shooter/victims/weapons, they seize weapons and then notice stereo equipment, wrote down serial numbers - Exigent circumstances ended when weapons were seized, so stereo equipment is out (needed a warrant and independent PC)

Define "waiver"

An intentional relinquishment or abandonment of a known right or privilege

Governmental Searches Outside the Scope of General Law Enforcement

- "Special Needs" searches and seizures - Health and safety searches - Probation officer searches - Administrative searches - Inventory searches - Roadblocks

To Whom does the 4th Amend. Apply

- (As a limitation on illegal S&S) Applies to state actors at ALL levels - (As a right that can be asserted) Applies to "the people": Legal aliens, US citizens (even outside the US), Illegal aliens in the US

Non-police Searches

- 4th Amendment only applies to STATE ACTORS - Private orgs/school/hospital/employer searches do not allow a 4th amendment challenge

Right to Counsel

- 6th amendment right is triggered by the formal bringing of charges (Massiah v. U.S.) - 5th amendment protection requires the right to counsel to ensure no self-incrimination; is triggered as soon as in custody

Judicial Review of Probable Cause

- A magistrate's finding of PC should be given GREAT deference - However, PC is reviewed de novo on appeal (however historical facts should only be checked for clear error, great weight should be given to rational inferences)

Bystander's Rules

- A person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person (Ybarra v. Illinois) - A search and seizure of an individual must be supported by PC particularized w/ respect to that person (Ybarra v. Illinois) - Any inference that everyone on the scene of a crime is a party to it must disappear if the Gov't informer singles out the guilty party (U.S. v. Di Re)

Search Incident to Arrest

- A state actor may search a subject, incident to their arrest - If arrest is invalid, so is the subsequent search - May create pretext for search (set the suspect up for a traffic violation in order to search for drugs) - Search may extend to the area within the immediate control of the arrestee - No such thing as search incident to citation

State Statute Effects on a Terry Stop

- A state statute MAY require suspect to ID himself during a VALID Terry stop - A Terry stop MAY NOT be justified (solely) by a statute requiring a suspect to ID himself

Knock and Announce Rule

- Absent some law enforcement interest in an unannounced intrusion, the 4th Amendment requires police to knock and announce their presence (Wilson v. Arkansas) - Police may forego the knock and announce if they have a reasonable suspicion that announcing would be "dangerous or futile" or that it would inhibit the investigation (i.e. "destruction of evidence") (Richards v. Wisconsin)

"Oath or Affirmation" Warrant Requirement

- Affidavits used to prove PC for warrant must not be perjured or made with reckless disregard for the truth - "Negligent" or "innocent" falsehoods will not invalidate a warrant

Reasonable Suspicion Standard

- An amount of information less than probable cause, that is based on "specific articulable facts", taken together with "rational inferences" - Anonymous tips must be reliable in their assertion of criminality to get to RS - Reasonable Suspicion of a crime = justification for Terry Stop - Reasonable Suspicion of a weapon = Terry Pat-Down

Reasonableness Standard

- An open-ended standard that permits the court to consider factors not normally taken into account in the traditional warrant/warrant exception and PC formula

Searching Automobile Incident to Arrest

- Area of immediate control is judged at the time of arrest - Can search a car if the arrestee is a recent occupant (glove box must have been accessible at the time of arrest and must be reasonably believed that the vehicle contains evidence of the offense)

Rule Regarding Right to Silence Invocation

- Once suspect invokes right to silence, the police may return to question, but must be done in a way that illustrates the suspect's rights were "scrupulously honored"

Exigent Circumstances Rules

- Can be danger to officers/third parties/public/evidence that makes delay of entry unreasonable - Must balance the state's interest against the individual's privacy interest - Burden is on the government to demonstrate need for warrantless entry - Important factor is the gravity of the underlying offense - Warrantless search must end when the exigency ends

Consent Searches

- Consent can waive an individual's rights to almost anything - Consent must be valid to be effective (must be voluntarily given) - Consent must not be coerced - ANALYZE HERE

Ohio v. Mapp

- Created the Exclusionary Rule - Held that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in state court"

Special Needs that Justify a Roadblock

- DUI Checkpoint - Drivers License/Insurance Checkpoint - Immigration Checkpoints near border - Roadblock designed to illicit information (check vehicles for damage to find a hit and run suspect) - Roadblock designed to find a victim

Impeachment Exception

- Exclusionary Rule exception - Illegally obtained evidence is NOT admissible in court but MAY be used to impeach defendant's testimony

"Fruit of the Poisonous Tree" Doctrine

- Extends the limits of exclusionary rule to reach and exclude ALL evidence derived from an illegal search/seizure

Rule for Electronic Tracking Devices

- From U.S. v. Karo - 4th Am. violation when the gov't surreptitiously employs an electronic device to obtain information that it could not have attained by observation from outside the curtilage of the house

When does seizure occur during a suspect's fleeing?

- Happens when suspect submits to show of authority OR when police apply physical force - Anything a suspect throws during flight is considered abandonment and therefore allowed to be seized by police

Bond v. United States

- Held the officer's physical manipulation of the exterior of a bag so as to determine it's contents is a search - Expects others to feel the bag, but not in an "exploratory manner" (this is the intrusion)

Rule for Technology not Generally Available to the Public

- Highly sophisticated surveillance equipment is subject to 4th amendment scrutiny (Dow Chemical v. U.S.) - The use of "sense-enhancing" technology that gathers information regarding the interior of the home that could not have otherwise been gathered without a physical intrusion constitutes a search (Kyllo v. U.S.) - Really heavily analyze "Generally Available to the Public" (make both sides)

Factors in Custody Considerations

- How long questioning lasts - Where the statement is given - If D initiated contact - How many officers are present - Physical restraints present - Presence of weapons by officers - How suspect got to station - Guard at the door/door locked - Officer's state of mind irrelevant (unless conveyed to suspect)

Pre Authorized Non-Compliance With Knock Notice

- If the police are aware that they will have non-compliance with knock notice ahead of time, then it must be in the warrant and signed by the judge (preauthorized).(Banks)

Katz v. United States

- Listening in on a conversation inside a phone booth is a "search" - By closing the booth door, Katz took steps to create a "reasonable expectation of privacy" - Harlon's concurrence created the 2-prong "search" test

Inventory Search

- May inventory the contents of a car or the belongings of an arrestee for administrative purposes, without probable cause or an arrest warrant or even a suspicion that evidence of criminality will be found - There is a good faith requirement

What is required for a seizure?

- May not be detained for even a second without "objective reasonable suspicion" - Must be intentional on behalf of the police (no such thing as unintentional seizure) (police "desire" does not matter if seizure is still accidental)

Roadblocks Requirements

- Must be for a special interest that is not general law enforcement - If it is just a random roadblock to catch random criminals, not reasonable

Requirements and Scope of Terry Stops/Pat-Downs

- Must have a reasonable suspicion of criminal activity for stop - Must have reasonable suspicion of the presence of a weapon for a pat-down - Pat-down must be EXTERIOR of clothes only and may not manipulate objects in pockets - No rigid time limitation but must be reasonable (20 minutes or less is probably reasonable, more than 20 minutes puts burden on police to show diligence) - Allowed to ask passengers in a stopped car to exit to conduct pat-down

Does police pretext negate PC and reasonableness?

- No, with most things, the officer's subjective intent is irrelevant - Exception is the good-faith requirement for an inventory/administrative search

The Rule for "Seizure"

- Occurs when an officer, by means of physical force OR show of authority, in some way restrains the liberty of a citizen (Terry) - Requires that a reasonable person would not feel free to disregard the police and leave (must not be a consensual encounter) (Florida v. Bostick) - Police means must be "means intentionally applied" (Brower v. Inyo)

Terry v. Ohio

- Officer patrolling around shopping center, sees 2 guys looking into windows, etc, then they meet up with 3rd guy. Officer approaches, they mumble something, so he pats them down and finds guns on two of them - Even absent PC of evidence of criminality, search and seizure was still held as reasonable for officer safety - Created Terry Stop rule

Rule for Searching Automobile Passenger's Belongings

- Officers with PC to search a car may search passengers' belongings in the car that may be capable of concealing the object of the search - Does not justify body search of the passengers (analyze here: pockets are off limits, so is the purse a part of the body?)

Rule Regarding Right to Counsel Invocation

- Once a suspect invokes his right to counsel, he cannot be questioned again unless he initiates or counsel is present - Unless the right to counsel in invoked in unambiguous language, police may ignore - Invocation lapses after 14 days of suspect returning to normal life

Who has standing to invoke Exclusionary Rule?

- Only the individual defendant whose reasonable expectation of privacy was infringed upon - Almost all social guests have standing to object - Business guests likely do not have standing - Passenger in car has standing to object to search of purse but not glove compartment

Who has authority to be present in the execution of a warrant?

- Only the police and individuals necessary to identify stolen goods - No media or other third parties in any circumstances

Oliver v. United States

- Police get anon. tip and searched his land even though there was a "No Trespassing: Violators will be shot" sign - Did not count as a "search" because they did not intrude on the curtilage

Custodial Interrogation

- Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way

Winston v. Lee

- Reasonableness case, shopkeeper wounded during attempted robbery, D found with bullet lodged in his body - Even with PC and warrant, unreasonable to "seize" the bullet because it would require an invasive surgery

United States v. White

- Recording of a conversation is not a "search" (informant wearing a wire) - You assume the risk when you tell someone that they will rat you out

"The Cruel Trilemma"

- Refers to the situation faced by a suspect during interrogation, not liked by courts - If they talk, they incriminate themselves - If they remain silent, they look guilty - If they lie, they face perjury charges

The Exclusionary Rule

- Remedy under the 4th Amend. - If search or seizure is found to be illegal, that evidence is excluded at trial

Administrative Searches

- Special search outside of the scope of law enforcement - Requires no level of suspicion - Has to do with public health and safety - Especially reasonable in "closely regulated fields"

Voluntariness Standard

- Standard regarding a confession or other statement - To be admissible, a confession or otherwise must be voluntary - A statement need not be volunteered to be voluntary - A statement is not voluntary if obtained by force or threat of force - A statement is not voluntary if obtained through unrelenting interrogation

Statements to which Mirada rights apply

- Statements made while in custody - Statements made in response to interrogation - Testimonial evidence - Any time after arrest (but not Terry stop)

Police Profiling

- Stopping and investigating someone who fits a profile is reasonable under the 4th Amend. - The more descriptive the profile and the better the suspect fits it, the more reasonable the stop becomes

Probable Cause Standard (search)

- That amount of information which would warrant a person of reasonable caution in the belief that a crime has been or is being committed AND items tending to show criminality will be found in the place of the search

Probable Cause Standard (seizure)

- That amount of information which would warrant a person of reasonable caution in the belief that a crime has been or is being committed AND that the arrestee committed the offense

Plain View Doctrine

- The right to seize evidence that is in plain view, requires 2 circumstances: 1) State's agents must have prior justification for entry into place where object was found (PC+warrant or warrant exception, or consent) 2) It is immediately apparent (probable cause standard) that the item be evidence of crime or contraband - No requirement that the evidence must be discovered inadvertently (Horton v. California)

Responsive to Interrogation Requirement

- Type of statement requiring Miranda warning - Refers to answers to "express questioning" or its "functional equivalent" - "FE" refers to a practice that police should know is reasonably likely to evoke an incriminating response

Third-Party Consent

- Valid if the third party has joint access or control for most purposes - Has held to be valid if the police reasonably believed that the third party possessed common authority to consent to the search - Scope is what a reasonable person would have understood the consent to include

"Particularity" Warrant Requirement

- Warrant must particularly describe 1) The place to be searched: must not be ambiguous, but clarifying information will fix it if they search the right place 2) The items to be seized (must contain a purpose that limits the scope of the search in both time and space) AND/OR 3) The person to be seized (in the case of an arrest)

California v. Greenwood

- Warrantless search and seizure of garbage left out at the curb is only a violation if the D manifested a "reasonable expectation of privacy" in the way they discarded their trash

The "Terry" Stop and Pat-Down Rule

- When a police officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior, he ID's himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him" - From Terry v. Ohio - No longer required to ID himself as an officer or to ask "reasonable" questions

When is Miranda not applicable?

- When inherent coercion of custodial interrogation are not present - A listening post in jail - Another prisoner or undercover agent asks questions about crime

Automobile Exception

- When police stop a vehicle on open road, or otherwise come across it in a public place, and have PC to search the vehicle, they may do so immediately, without securing a warrant, or they may take the vehicle to a police impound and search it there - When a warrantless search of a vehicle is justified, scope is the same as with a warrant (may search any container inside the automobile as long as the object of the search may be found there) - Not applicable when vehicle is parked in private driveway - Applies to mobile homes, even if parked and used as a permanent home

Custody

- Whether a reasonable person would feel that he'd been deprived of his freedom in a significant manner - Different from seizure in that it is more that a reasonable person believing he may ignore the police

Can the government grant immunity in exchange for testimony?

- Yes, it is consistent with the 5th amendment

Scope of Consent when consenting to a search

- You only consent to what a reasonable person would expect - "Searching the car" does not include dismantling the car

Quarles

- in an emergency situation, an unwarranted confession (such as where a gun is hidden in a supermarket) is admissible in the government's case in chief despite Miranda. o This case used to be important for physical evidence, but now with Patane, doesn't matter whether emergency because physical fruits of a statement admissible anyway. EXCEPTION TO MIRANDA - 28

Adjunct Police Officers

-"Campus Police" at private institutions of high education * in counties less than 200,000 population, Chief of Police or sheriff may appoint up to 50 peace officers to serve as adjunct police officers

Double Jeopardy is not barred, when?

-1st proceeding ended in mistrial declared for "manifest necessity" (ex. hung jury) -Extraordinary Event. (ex. D's Attorney dies during case) -Prejudicial Error that cannot be corrected at trial. -the case falls under a different sovereign jurisdiction -An acquittal of the Defendant exempts him from a second trial or a second prosecution for the same * If D is a acquitted by court not having jurisdiction of the offense, he may be prosecuted again in a court having jurisdiction.

Railroad Police Officers

-Aid Law Enforcement in the protection of the persons -Peace Officer Authority to protect property of railroad, passengers, and employees -NOT entitled to state benefits

Court of Appeals

-Appellate jurisdiction coextensive with the limits to their respective districts in all criminal cases except those in which the death penalty has been assessed -A case not inferior to county court, court criminal court, county court at law can only be appealed to court of appeals if: * Fine imposed exceeds $100; or * Sole issue is constitutional of the statute or ordinance

Each Sheriff shall

-Be conservator of the peace in his county -Arrest all offenders and take them before the proper court -Quell and suppress assaults, batteries, unlawful assemblies -Apprehend and commit all offenders to jail, until examination or trial

Peace Officers commissioned by the Alabama Coushatta Indian Tribe

-Enforce state law within the boundaries of the tribe's reservation. -may also make arrests outside the reservation when summoned by another law enforcement agency or when assisting

Court of Criminal Appeals

-Final appellate and review jurisdiction in criminal cases coextensive with the limits of the state. -Also appeals in Death Penalty cases

A Peace Officer who stops a motor vehicle for a traffic violation should?

-Get a physical description *Race *Gender -Cite TRAFFIC LAW VIOLATED -Cite if there was a SEARCH and if consented or not -Cite discovery of CONTRABAND -Probable Cause -Street Address or Approx. Location -Result of stop (Warning, Citation, or Arrest)

Requisites of an Arrest Warrant

-Issued in the name of "The State of Texas" -Specifies name, or reasonably definite description, of accused person -States that the person is accused of offense, and name of offense -Signed by magistrate, with his office named

A warrant of arrest issued by a MAYOR of an incorporated city CANNOT be executed in another county, unless:

-It is signed by a judge of a court of record, in which case it may be executed anywhere in the state -If it is endorsed by a magistrate in the county in which the accused is found, it may be executed in such county. Or if the endorsement is made by a judge of a court of record, then the endorsement may be "let this warrant be executed in any county in the state."

Who are Magistrates?

-Justices of Texas Supreme Court -Judges of Court of Criminal Appeals -Justices of Courts of Appeals -Judges of District Courts -Judges of the County Courts -Justice of the Peace -Municipal Judges -Judges of the statutory probate courts -Mayors and Recorders

"Dating Relationship" is determined based on consideration of:

-Length of the relationship -Nature of relationship -Frequency and type of interaction between the persons involved in the relationship

In family violence cases, officer must make written report including:

-Names of suspect and complainant -Date, time, and location -Any visible or reported injuries -Description of incident and statement of its disposition

Duties and Powers of a Peace Officer

-Preserve Peace within jurisdiction by all lawful means -Interfere without warrant to prevent or suppress crime (wherever authorized by CCP) -Execute all Lawful process issued by magistrate -Give notice to Magistrate of all offenses committed within jurisdiction, where he has good reason to believe a crime has been committed -Arrest offenders without warrant (when authorized by law) *it is the duty of every officer to take a possession of child under 69.009(g)

Duties of a Magistrate

-Preserve the peace within jurisdiction (by the use of all lawful means) -Issue all process intended to aid in preventing and suppressing crime -To cause the arrest of offenders (by the use of lawful means in order that they may be brought to punishment)

Primary function of Habeas Corpus

-Primary function -> release from unlawful imprisonment -DOES NOT determine guilt or innocence -Used to bring the Defendant before a judge or court to determine whether a due process violation has occurred.

Define "Contraband"

-Property of any nature, including real, personal, tangible, or intangible -Proceeds gained from the commission of certain listed felonies or crime of violence -Acquired with proceeds gained from the commission of certain listed felonies and misdemeanors or crime of violence

Primary duties of an officer regarding family violence

-Protect any potential victim of family violence -Enforce the law -Make lawful arrests of violators

A search warrant must:

-Run in the name of "The State of Texas" -As near as may be, identify what will be seized, name or describe the person, place, or thing to be searched -Command any peace officer of proper county to search -Magistrate must date and sign

Requisites of a Commitment

-Run in the name of the "State of Texas" -Be addressed to sheriff of county to jail where defendant committed -State in plain language the offense and give the defendants's name or description -State what court and time defendant is to answer -when sent out of county where prosecution arose, warrant must state that there is no safe jail in proper county -if bail has been granted, the amount of bail must be stated in the warrant of commitment

Requisites of a Capias Warrant

-Runs in the name of "The state of Texas" -Name or describe the person to be arrested -Specify the offense against the penal laws of the State -Name the court and time to return -Dated and attested officially by the authority issuing the same

Requisites of a Complaint

-State the name of the accused or a reasonably definite description of him/her -Show that accused has committed an offense, or that affiant has good reason to believe accused has committed an offense -State time and place that the offense was committed -Signed by affiant

Each law enforcement agency in the state shall adopt a policy on racial profiling. Policy Must:

-Strictly prohibit officers employed by the agency from engaging in racial profiling -Clearly define acts constituting racial profiling -Implement a process by which an individual may file a complaint with the agency if the individual believes that an officer has engaged in racial profiling. -Provide public education relating to the agency's complaint process -Require appropriate corrective action to be taken against officer who, after an investigation, is shown to have engaged in racial profiling. -Require collection of information relating to traffic stops to gains statistics of racial profiling

If an officer does not have a copy of the warrant with him, he must inform the accused of:

-The offense charged -The fact that a warrant has been issued

Seizure of Contraband

-Under authority of a search warrant -Seizure may be made with or without a warrant if: *the owner, operator, or agent in charge of the property knowingly consents *Seizure is incident to a search to which the owner of property knowingly consents *Property subject to seizure had been the subject of a prior judgement *Seizure was incident to a lawful arrest, lawful search, or lawful search incident to arrest

Proper Precinct is:

-Where offense committed -Where defendant(s) reside(s) -Other precinct in county with written consent of state and defendant or attorney

Indigent person is entitled to counsel when?

-any adversary judicial proceeding -any other criminal proceeding if the court concludes justice require representation -Appeal to court of appeals -Appeal to Court of Criminal Appeals if appeal is from -District Court or a petition for discretionary review has been granted. -Habeas Corpus proceeding -Any other appellate proceeding if the interest of justice require representation

Ways to waive right to a jury (Non-capital case)

-in person by defendant -in writing -in open court -with consent and approval of court, entered on minutes of the court -with consent and approval of prosecutor, in writing, signed and filed in case (CAPITAL CASE) -when Capital jury is NOT seeking death penalty

A search warrant may be issued to search for and seize:

-property acquired by theft -property specially designed, made, or adapted and used in offense -Arms and ammunition -Weapons prohibited by the penal code -gambling devices -drugs

When returning a search warrant, officer shall:

-state the manner in which it was executed -deliver a copy of the inventory to the magistrate -retain custody of property until magistrate directs where it shall go -Cannot take property out of county without court order -Items (drugs) may be sent to lab

When property or person are found pursuant to a search warrant, the officer shall

-take possession of property and take it before a magistrate -take any person directed to be arrest by the search warrant before a magistrate

4 Factors To Determine Curtilage (What Is Covered):

. Proximity of the area claimed to be curtilage to the home 2. Whether the area is included w/in an enclosure surrounding the home. 3. The nature of the uses to which the area is put 4. Steps taken by the resident to protect the area from observation by people passing by (least important). *Note* Curtilage does not have absolute protection (Ex. What if your fence line is only 5ft high and neighbor sees you are growing pot, and calls cop. Cop sees pot→no 4th protection b/c has been exposed to the public.

Test to determine whether one is "in custody"

.Whether a RP in suspect's position would believe that he was or was not in custody at the moment--an objective standard.

Arrest Requirements (generally)

1) A person cannot be arrested without probable cause (seizure definition) 2) Warrant or warrant exception required (must have a warrant to arrest someone in their private home) 3) Must bring any suspect arrested without a warrant in front of a neutral magistrate within 48 hours 4) Illegal arrest does not insulate subject from being convicted of a crime 5) In order to arrest someone in the home of a 3rd party, state actor must have search warrant AND arrest warrant 6) If PC exists for even a very minor offense, officer is authorized to make a full custodial arrest

2-Pronged Test for "Search"

1) A person has exhibited an actual (subjective) expectation of privacy 2) That expectation of privacy is one that society is prepared to recognize as "reasonable" (objective) - Created in Katz v. U.S.

Exceptions to Fruit of the Poisonous Tree Doctrine

1) Attenuation (a break in the causal chain) 2) Independent Source Exception (evidence was found from a valid, independent source) 3) Inevitable Discovery Exception (police would have inevitably found it) 4) Knock and Announce Exception (a failure to K&A does not invoke the exclusionary rule)

Two Elements of PC from an Informant

1) Credibility 2) Basis of Knowledge (personal knowledge much better than hearsay)

Exceptions to Warrant Requirement (generally)

1) Exigent Circumstances 2) Plain View Doctrine 3) Automobile Exception 4) Search Incident to Arrest

Five Factors to consider if Consent was Voluntarily Given

1) Knowledge - Officer not "required" to inform person of the right not to consent, but it is a factor 2) Whether consentor is in custody 3) Show of force/threats 4) Deception 5) Personal characteristics of consentor (comfort level, fatigue, intelligence, etc)

List the critical stages:

1) Line up 2) Initial Hearing 3) Preliminary Hearing 4) Trial

Warrant Requirements (generally)

1) Particularity 2) "Neutral and detached" magistrate 3) Oath or affirmation 4) Proper Execution

4 Factors to Determine if the Area is Considered the Curtilage

1) Proximity of the area to the home 2) Whether the area is inside an enclosure 3) The nature of the use of the area 4) Steps taken by the defendant to protect the area from view of the public

Rights that must be given to a suspect being questioned (Miranda warnings)

1) Right to remain silent 2)Any statement may be used as evidence against him 3) Right to the presence of attorney 4) Right to have attorney appointed to him if he cannot afford one - These are rules of evidence, not a Constitutional right

What is the process for breaking down Search Warrants?

1) Start with the 4th Amendment. 2) Look for statement that shows the experience and training of police officer. 3) If there is an informant look for Reliability 4) Look for Independent police work. 5) Affidavit 6) Oath.

Ways to show Informant's Credibility

1) Track record (proven to be reliable in the past) 2) Controlled buy 3) Predictive of future events that officers can use to corroborate story 4) Record of being an honest citizen, and if tip fabricated would subject informant to criminal liability 5) Any other indicia of reliability

Exceptions To Knock Notice

1) When the police have a good faith belief that evidence inside will be destroyed. 2) Belief that officers lives will be in jeopardy

Factors tending to show Coercive Nature of Encounter (for purposes of seizure)

1) Whether officer used his gun in a threatening way (holding it, outside of pouch) 2) Whether officer informed the citizen they were free to refuse consent 3) The ways used to limit D's movement (handcuffed, blocked exits, etc.) 4) Tone of voice/overall politeness of the officer

What are the (3) required parts of a Miranda Statement?

1) right to silence , 2) Anything you say can be used against you 3) Right to counsel attorney and one will be appointed to you if you cannot afford one.

Portions of the Bill of Rights Applied to the States:

1. 4th Amendment 2. 5th Amendment 3. 6th Amendment 4. 8th Amendment 5. applied to states

Other factors that may be considered when determining whether consent to a search was voluntary

1. Application of force 2. Intimidating movements 3. Brandishing of weapons 4. Overwhelming show of force 5. Blocking of exits 6. Threats 7. Commands 8. Authoritative tone of voice

Bail Issues:

1. Bail should be reasonable. 2. Failure to grant bail, or the amount of bail can be appealed immediately. 3. Bail should almost always be granted unless a capital offense is involved.

Those present when a search warrant is executed (non-vehicular)

1. Cannot be searched without PC particularized to that person 2. May be detained in the immediate vicinity of the premises depending on circumstances 3. May not be detained when a distance beyond the immediate vicinity of the property being searched just to ensure the safety and efficiency of search

Three levels of police interaction

1. Consensual encounter (no requirement) 2. Stop (RS); may frisk if RS to believe person armed and dangerous 3. Arrest (PC); may search incident to arrest

6 MAJOR EXCEPTIONS TO SEARCH WARRANT REQUIREMENT

1. Exigent circumstances (hot pursuit, safety or emergency aid, preventing destruction of crime) 2. Plain view (and plain touch and plain smell) 3. Automobile exception (PC that vehicle contains contraband, traffic stop, arrest) 4. Searches incident to arrest with protective sweeps 5. Inventory searches 6. Consent

Exceptions to Exclusionary Rule

1. Good faith 2. Attenuation 3. Independent source 4. Inevitable discovery

3 situations in which automobile exception to search warrant requirement applies

1. If officer has PC to believe that vehicle contains contraband or evidence of illegal activity, the officer can search the car, containers within the car, and the trunk (California v. Acevedo) and driver's and the passengers' personal belongings without a showing of individualized PC for each one 2. If officer lawfully stops someone (traffic stop), he can order the driver and passengers to exit (Pennsylvania v. Mimms), search those areas in the car where weapons might be hidden if he REASONABLY BELIEVES, BASED ON SPECIFIC AND ARTICULABLE FACTS, that the person being stopped is dangerous and may gain immediate control of weapons (Michigan v. Long). 3. If an officer arrests someone, he can do a warrantless search the car If the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or If it is reasonable to believe that the vehicle contains evidence of the offense for which the arrest was made (Arizona v. Gant).

House or car factors

1. Location? 2. Readily mobile or elevated on blocks? 3. Licensed? 4. Connected to utilities? 5. Access to roads?

Factors that determine whether the link between illegal police conduct and the evidence has been attenuated, thus purifying the taint of the poisonous fruit of the tree

1. Miranda warning 2. Temporal proximity of arrest and confession 3. Presence of intervening circumstances 4. Purpose and flagrancy of initial misconduct

Plain View Doctrine (3 parts)

1. Officer has to observe the object in question from a LAWFUL VANTAGE POINT first. 2. Then, officer must have a RIGHT OF PHYSICAL ACCESS from that lawful vantage point to the place where the object is located. 3. The officer must also have PC to believe that the object in question is something that she can seize.

What The 4th Amendment Protects:

1. People & there REOP 2. People's property (House, business) 3. People's freedom of movement (Ie. Movement of mobile home) Slodal

Required information for warrant

1. Person or property being searched, seized, or tracked; location 2. Oath of affirmation from party requesting warrant and any party upon whose testimony warrant is being based

Purposes of Inventory Searches

1. Protect owner's property 2. Protect police against claims 3. Protect police from danger

Curtilage factors

1. Proximity of area to home 2. Whether area is enclosed with home 3. Nature of uses for area 4. Steps taken to protect area from observation by passersby

Rationale: Generally the following serve as a justification for allowing administrative agencies to search without a warrant:

1. Some notice is given to those affected that they may potentially be subjected to a warrantless search. 2. It would be impractical to get warrants for all the potential searches. 3. There is an element of urgency. 4. The public's need for protection outweighs the rights of the individual to a reasonable expectation of privacy in the given circumstances. 5. Agency expectations are not as intimidating as police searches.

Warrantless administrative inspections are reasonable as long as three criteria are met (Burger)

1. Substantial gov't interest that informs the regulatory scheme pursuant to which the inspection is made. 2. Necessary to further that regulatory scheme. 3. Statute's inspection program must provide a constitutionally adequate substitute for a warrant.

What are the elements of a Critical Stage of Prosecution?

1. The accused is physically present and vulnerable to the government 2. The accused is subjected to the government's machinery that prejudices against him 3. Such that a lawyer must be present

Factors to determine whether taint from initial unwarned confession has been cleaned, making the subsequent, warned confession admissible

1. Whether the second interrogation is voluntarily made 2. Whether the second confession is not a mere continuation of the first confession (separation in time, place, interrogators) 3. Whether the police purposely did not read Miranda warnings during the first interview or whether it was inadvertent and not purposeful

Factors to determine whether seizure occured

1. Whether there was a threatening presence of several officers 2. Whether the officer displayed a weapon 3. Whether there was some physical touching of the person of the citizen 4. Whether the use of language or tone of voice indicated that compliance might be compelled

Parolees and Warrantless Searches:

1. by statute 2. parolees 3. warrantless searches: a) person b) property c) residence Rationale: Parole is part of an individual's sentence, and as such his expectation of privacy is limited. This rule has been statutorily imposed. Note: Police cannot abuse their discretion.

Warrants and Searches are subject to what exceptions?

1. plain view 2. consent 3. automobile exception 4. incident to lawful arrest 5. investigatory detentions 6. hot pursuit 7. danger of losing evidence 8. emergency 9. border searches 10. Immigration and Naturalization Service inspections 11. unreliable listener 12. uninvited listener 13. open registers

ER Applies To:

1.) Forfeiture Proceedings 2.) Criminal Proceedings

ER Does Not Apply To:

1.) Grand Jury Proceedings 2.) Probation or parole hearings - ER does not apply to parole and probation revocation proceedings. 3.) Tax assessment proceedings 4.) Immigration deportation proceedings

Situations Where Good Faith Exception Does Not Apply

1.) If any reasonable officer can discover the error of a search warrant at face, then good faith does not apply. (Groh) 2.) If police mislead a judge while applying for a search warrant. 3.) Where the judge abandoned his neutral view that they became biased in favor of the police to grant the search warrant (judge wasn't looking a the situation from a neutral perspective)

Probable cause can be obtained by:

1.) Informants 2.) Crime Victim/Witness 3.) Direct Observations By Police 4.)Official Channels, incl. APBS (All Points Bulletin) - Officer has right to investigate stop based on reasonable suspicion.

Situations Where Good Faith Exception May Apply

1.) Mistakes made by court clerks does not override "good faith" by an officer and good faith may apply. (Evans) 2.) If an officer acts on reliance on a law that has been subsequently declared bad law, good faith may apply. (Krull) 3.) Good faith may apply if there was objectively reasonable belief that the warrant was valid (Shepard) 4.) When police mistakes leading to an unlawful search are the result of negligent reliance on their own records rather than systematic error or reckless disregard of ones constitutional rights, the good faith exception may apply. (Herring) Policy: Police should clearly monitor information transmitted through their airways. However, this law indicates that law enforcement is not under a duty to make sure their database is up to date.

No Warning Required Regarding Right To Refuse Consent

1.) No Miranda type warning ("you have the to refuse consent to search") is necessary to inform citizen of his ability to refuse his consent to a search. 2.) Prosecution must prove that the consent was voluntary. (Schneckloth)

Reasonable Expectation of Privacy (5 Principles) (REOP)

1.) No Trespass is required for 4th amendment violation (i.e. THERMAL IMAGING) 2.) The 4th Amendment protects people and NOT PLACES (i.e. Abandoned house in middle dessert is not protected. But a home with people inside IS protected) 3.) 4th protects areas and things for which a person has a REOP. (Bag/car) 4.) 4th amendment protects tangible and intangible objects (Ex. Sound waves) 5.) If Police have probable cause to search, and have sufficient time, they should first obtain warrant first.

If the county where the offense was allegedly committed does not demand the prisoner and take charge of him within ______ days from when he is committed, the prisoner must be set free.

10 days (this section was amended to say "be set free before the 11th day" , use within 10 days for test)

Terry v. Ohio

3 Rules of Terry: i. 1.) Police may temporarily detain suspect on "reasonable suspicion" if suspect engaged in or about to engage in criminal activity(facts short of probable cause to arrest, but officer must articulate reasons); and ii. 2.) Frisk the suspect's outer clothing for hard objects if the officer can articulate reasons for believing that the suspect is armed; iii. 3.) BUT if the detention is deemed unlawful, the evidence obtained is suppressed and is considered a violation of the 4th amendment because the persons freedom of movement is restricted. (Terry v. Ohio)

How many days does a peace officer have to execute a search warrant?

3 whole days

Evidence Obtained In US Prosecution

4th Amendment does not apply to searches and seizures by U.S. officials in foreign countries and involving an alien, where the alien does not have substantial connection to the United States. (Verdugo-Urguidez)

Open Fields Beyond Area of Curtiliage

4th amendment protects house or curtilage but OPEN FIELDS are not protected! (Oliver)

Soldal

4th amendment protects people's freedom of movement, their possession of property and liberty of person.

How many photos are needed to have a good photo array?

6 photos are needed.

If a person is arrested and taken before a magistrate in a county other than the county in which the arrest was made, what is the maximum time after arrest that a person can be held before being transferred to the county jail in the county where the arrest occurred?

72 hours

No later than _____ after seizure, the officer must place seized property under seal; remove property to a place ordered by the court; or require the law enforcement agency of the state/city to take custody of the property and move it to a proper location

72 hours

To Support Search Warrant Based On Info From Informant (Spinelli Rule)

: 2 Prongs in Aguilar + Corroboration Factor Rule: If you have the two prongs in Aguilar and both are weak, you can bolster by CORROBERATION of the police to make them sufficient.

Probable Cause Test

A "totality-of-the-circumstances" analysis

United States v. Place

A drug dog's "sniff test" is not a search.

Right To Effective Assistance of Counsel

A 6th amendment ineffective assistance of counsel (IAC) is met if the Defendant can show counsel was ineffective within the meaning of the Strickland Test. The Strickland Test is a two-part test to establish ineffective assistance of counsel (IAC): 1.) Representation fell below objective standard or reasonableness; and 2.) That the attorney's performance prejudiced the defense (Strickland) Prejudice: Reasonable probability that "but for" the errors, the result would have been different. If council would have done what he should, the defendant would not have been convicted. Objective Standard of Reasonableness - Strong presumption that counsel's conduct is reasonable (attorney makes a strategic choice not to interview a potential witness vs. not considering interviewing witness at all. A strategic choice does not satisfy first prong of test)

The four corners rule is used for what in crime Pro

A Judge/Magistrate can only issue a warrant based on what is on the corners of the affidavit.

Racial Profiling

A Law Enforcement initiated action based on an individual's race, ethnicity, or national origin rather than their behavior or engaging in criminal activity

Protected Areas Include Business Premises

A businessman, like the occupant of a residence has right to go about his business free from unreasonable official entries upon his private commercial property.

Confrontation and Confessions of a Co-Defendant:

A confession of a co-defendant that implicates the other defendant cannot be used unless the maker of the confession submits to be cross-examined.

Confessions and Police Action:

A confession that is not given in response to police action is admissible, as long as requirements for capacity and voluntariness are met. Rationale: The Exclusionary Rule has been established to protect the public from over zealous police activity. Consequently if police activity is not an issue, there is not a valid reason for excluding probative evidence.

Confrontation Clause:

A defendant has a right to confront witnesses. Situations to look out for: A defendant may forfeit his right of confrontation by voluntarily leaving or by disrupting the proceedings and being removed. Rationale: The concept of being able to "face one's accusers" is an integral part of our judicial system. First of all, when a person hears what his accusers say, he can assist in his defense. However, more importantly, a large part of the purpose behind a trial is to judge witness credibility, and generally individuals find it more difficult to lie when they are face to face with the one they are lying about. Before an abnormal sentence may be imposed, the accused must be allowed to "confront" and "cross examine" those whose testimony is being used against him. Generally "reliable" hearsay may be used in determining a sentence. However, sentences beyond the norm require a greater showing of reliability.

Right to an Impartial Jury:

A defendant is entitled to a change of venue or a new trial, if it can be shown that the jury had been tainted by pretrial publicity.

Illinois v. Gates -analyze R/S p342 ALvWhite FLvJLAnon. Tipster) J.L./White

A determination of PC should be made using a TOTALITY OF THE CIRCUMSTANCES analysis. In this case, which involved police receiving an anonymous letter about a couple drug use, verifying the details in the letter, and then requesting a warrant, the informant's VERACITY, RELIABILITY, AND BASIS OF KNOWLEDGE were factors taken into account.

Equal Protection, Indigency and Fines:

A indigent defendant cannot be imprisoned for his inability to pay a fine. Situations to look out for: Be prepared to argue pro/con if an individual who could easily pay a fine chose not to and was subsequently incarcerated. The public policy is to prevent those without resources from suffering a loss of liberty, while those with resources do not.

Judges and Competency of a Defendant:

A judge has an obligation to raise the issue of a defendant's competency if it appears to be an issue.

U.S. v. Watson

A judge may issue a search warrant only if there is PC. Police can search and arrest in a situation where a warrant is not required only if there is PC.

Jurors and Political Views:

A juror may not be excluded because of his political views, unless they prevent him from following the court's instructions. Example: A prospective juror can feel that the death penalty should be prohibited, however unless his feelings would prevent him from convicting an individual, he should not be excused.

Right to a Jury of One's Peers:

A jury of one's peers means that the actual jurors have been chosen from a group that is representative of the area. Note: The actual jurors selected do not have to be representative of the community, however the group that they were chosen from does.

Reasonable Amount of Time Before Taking Arrested Person Before Magistrate

A person can be detained for 48 hours after arrest, not counting the day of arrest, before seeing a judge. The exception being, if over 48 hours, government must show justification. (McLaughlin) i. Decides how long is reasonable. As a practical matter, 2 days can mean 5 days if they are arrested on Friday and are scheduled to be seen in court on Tuesday.

Define "Owner"

A person who claims and equitable or legal ownership interest of property

Habeas Corpus:

A proceeding whereby a prisoner contests the constitutionality of her confinement. Note: A habeas corpus proceeding is brought in federal court and charges that a constitutional right was violated in the trial.

Does drug-detecting dog provide probable cause to search vehicle?

A properly trained drug detecting dog that alerts police of the possibility that drugs are present in a vehicle can create probable cause to search the vehicle

Prosecutor's Inability to Comment:

A prosecutor may not comment on a defendant's failure to: 1. testify, 2. raise alibis raised in discovery, 3. nor produce alibi witnesses presented in discovery. Exceptions: A prosecutor may raise contradictory statements of a defendant for purposes of impeachment.

What is a protective Sweep?

A protective sweep is a quicka nd limited search of a premises incident to an arrest and conducted to protect the safety of police officers and others. It is narrowly confounded to a cursor visual inspection of these places people may b hiding .

Warrantless Searches and Government Employees' Desks and Files:

A reasonable search of desks and files of a government employee by an administrative agency will be allowed without a warrant if any one of the following three situations exist: 1. work related, 2. job related misconduct under investigation, 3. search triggered by non-investigatory motives.

Confessions and Impeachment:

A reliable confession, that was voluntarily given before Miranda Rights were given, is admissible only for purposes of impeachment. Situations to look out for: • If the confession was given under duress it is not voluntary, and thus inadmissible for any purpose. • If the confessor lacked capacity or did not appreciate what she was saying, then the confession is not reliable and thus inadmissible for any purpose. • Remember that any evidence may be excluded if it is more prejudicial than probative. Be sure to argue that a confession given under reliable circumstances may be very prejudicial, and it may be unrealistic to expect a jury to consider it only for purposes of impeachment and not as substantive evidence.

What is the Chimel Test

A search incident to arrest may not exceed the area within the reach of the arrestee.

Plain View and Search Warrants:

A search warrant is not required for evidence in plain view. Rationale: Remember, the 4th Amendment protects one's reasonable expectation of privacy. Consequently, if evidence is in plain view, one does not have a reasonable expectation of privacy in it, and a warrant is not needed. Note: The key to determining what is in plain view is whether or not any member of the public may have access to the evidence.

Detained Persons May Be Handcuffed During Search

During a search, potentially innocent people can be handcuffed for officer's safety. (Mena)

Warrantless Searches and Contaminated Food:

Administrative agencies may seize food that is unfit for human consumption. Rationale: The overriding public policy in favor of preventing unfit food from accidentally entering the stream of commerce overrides the 4th Amendment concerns.

Michigan v. Moseley

Admissibility of statements obtained after person in custody has decided to remain silent depend under Miranda on whether his "right to cut off questioning" was SCRUPULOUSLY HONORED

Post Appeal Retrials:

After a successful appeal, one may not be retried for a more serious offense. Rationale: If the law held otherwise, it would tend to "chill" one's freedom to exercise the right to appeal.

Pre-trial Personal Identifications:

After a suspect has been charged, he is entitled to have his attorney Page 47 present if he is being subjected to a "show up" or a "line up." Note: A "show up" is when the suspect is being shown individually to a witness for purposes of identification. A "line up" is when the subject is included in a group of individuals that is being shown to a witness for purposes of identification. Note: An individual is only entitled to have counsel appointed at trial if he is ultimately sentenced to prison.

Confessions and the Right to Counsel:

After an individual has been placed under arrest, she has a right to counsel at any interrogation. Situations to look out for: Interrogation has been interpreted to mean anytime an agent of the police is trying to elicit information. Consequently, when a police informer acquires information in the prison yard, the right to counsel may have been violated if the informer took some affirmative action to get the informee to talk.

6) Taking Arrested Person Promptly Before Magistrate

After arrest supported by probable cause, the person must go promptly in front of a judge, with no unreasonable delay, to make sure there was p/c for the arrest. (Gerstein)

In a FELONY CASE, any officer may break down the door of any house to make an arrest if:

After giving notice of purpose and authority, s/he is refused admittance.

Special Investigators

All Federal Agents -FBI -Secret Service -U.S. Customs -ATF -FDEA -U.S. Postal services *have the power of arrest, search, and seizure in felony offenses only under the law of the State of Texas

2 years

All Misdemeanors: Class A, B, and C

3 years

All other felonies

14th Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reisde. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.

Traffic Stop re: Drug Trafficking "Profile" Approved

Almost any conduct can fit the profile including waving or not waiving to an officer (Arvizu)

Drug Courier Profiles APB's

An APB match of a person with the profile of a drug courier is sufficient to justify temporary detention

Family violence

An act by a member of a family or household against another member of a family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault, or that is a threat that reasonably places the member in fear of imminent you physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protective oneself.

Minn. v. Dickerson

During a protective patdown, if an officer feels something that is IMMEDIATELY APPARENT as contraband, then he may seize it. Note: He must first have RS to conduct that patdown (Terry v. Ohio).

When may an arrest be made?

An arrest may be made on any day at any time

1.) Arrest Outside Home As Creating Exigency To Search Home

An arrest of a person outside of a house does not create enough of an exigent circumstance to justify a warrantless search of a house. (Vale)

Right To Council On Appeal

An indigent defendant is entitled to appointed council (pro-bono attorney) to appeal a case at the first level of appeal. (Douglas)

Competency and Standing Trial:

An individual is incompetent to stand trial unless she understands the facts presented against her, appreciates the charges against her, understands the proceedings, and is capable of working with her attorney to prepare her defense.

Double Jeopardy:

An individual may not be subject to trial more than once for the same offense.

Open Fields Doctrine

An individual may not legitimately demand privacy for activities conducted out of doors in fields, except the area immediately surrounding the home (curtilage)

Pen Registers

An installation and use of a pen register does not constitute as a search and does not require a search warrant because there is no actual expectation of privacy in the phone numbers dialed. Policy: Phone numbers are a matter of public record and therefore cannot be an actual means of privacy. Pen Register - A pen register is a mechanical device that records the numbers dialed on a telephone.

Payton v. N.Y.

An officer may not make a warrantless, nonconsensual entry into a suspect's home to make a felony arrest absent exigent circumstances. Must have an arrest warrant to enter a home.

Define "Commitment"

An order signed by magistrate directing sheriff to receive and place committed person in jail.

Minn. v. Dickerson

Announced that Miranda v. Arizona is a constitutional rule that Congress may not supersede legislatively.

What is an interrogation

Any gesture, questioning, or behavior likely to illicit an incriminating response.

Define "process"

Any papers, documents, etc., that are issued by the court and are necessary to make a case happen (warrants, orders, subpoenas, etc)

Right To Appointed Council (Gideon)

Any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.

Pre-trial Incarceration

Any reasonable security measure may be instituted even though the individuals incarcerated are awaiting trail.

Mandatory Drug Testing of Students

Any student that wishes to participate in student activities can be drug tested. Drug testing of a student is a slight intrusion of privacy (completely confidential - samples were not turned over to law enforcement/police).

Jail Strip Searches

Anybody in jail (however major or minor the offense) may be subject to a strip search.

Who are Peace Officers?

Anything Officer without federal duties

1. Appeals As Matter Of Right

Applies to all Federal & State Court of Appeals ➢ APPEALS RULE: no right to waive counsel, b/c issues on appeal are technical issues of the law (Faretta v. California)

An arrested person shall be taken to a magistrate in the county of _______

Arrest

Juveniles and Delinquency Hearings:

At a hearing to determine delinquency, juveniles are afforded the same rights as adults, except there is no right to a jury.

How to Assert the Exclusionary Rule:

At a pre-trial suppression hearing, conducted outside the presence of the jury, the issue of whether or not evidence was illegally obtained is decided. Rationale: If the jurors heard the evidence and it was later determined to be inadmissible, it would probably be too much to ask a reasonable juror to disregard the information he had heard, even though it was true, because of a "loophole."

When does Prosecution begin?

At the Initial Hearing

Where does the Miranda have to be given

At the start of the interrogation.

Anticipatory Search Warrants

At the time the warrant was issued there was no probable cause that the contraband existed at the time. (Contraband has to be there "currently"). (Grubbs)

Warrantless Searches and Highly Regulated Industries:

Certain highly regulated industries may be searched by administrative agencies without a warrant. Page 35 Examples: Liquor, firearms, auto junkyards, and mining operations have been held to be highly regulated businesses. Rationale: First of all, individuals who enter these industries consent to the searches. Secondly, there is a high potential for public harm.

What Case state arrest rule for Felony and misdemeanors

Atwater v. Lago Vista

Burger

BUSINESS INSPECTION - ADMINISTRATIVE SEARCHES -SUSPICIONLESS NYPD entered respondent's auto junkyard to perform inspection pursuant to NY law. Court held this warrantless search was ok. A warrantless (suspicionless) inspection of a pervasively regulated business is reasonable if three criteria met: • 1. Substantial government interest in regulating pervasively regulated business. • 2. Necessary to further the regulatory scheme. • 3. The regulatory statute must perform 2 basic functions of a warrant: o 1. Advise the owner a search is being made pursuant to law; AND o 2. Limit the discretion of the inspecting officers (time, place, scope). MUST be closely regulated industry, otherwise need probable cause for inspection. o Pervasively regulated industries: trucking (associated with drug transport), towing, pawn shops, taverns, dance halls. ADMINISTRATIVE SEARCHES - 16

Define Reasonable Articuable Suspicion

Based on the totality of the circumstances that criminal activity is afoot.

Pretrial Hearings and Detentions:

Before significant restraints can be placed on one's liberty, the defendant is entitled to a determination that probable cause exists.

A warrant issued by a magistrate other than a may may be executed ______

By a Peace Officer in any part of the State of Texas

Atwater

CAN ARREST FOR ANYTHING CRIMINAL (TRAFFIC TICKET) A custodial arrest is always reasonable if the officer has probable cause of a criminal violation. ARREST - 6

Caballes

CANINE SNIFF - CAR Conducting a dog sniff does not change the character of a traffic stop if it is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent's constitutionally protected interest in privacy." A person has NO legitimate privacy interest in possessing contraband ,and thus, governmental conduct that ONLY reveals the possession of contraband compromises no legitimate privacy interest - Place 4TH AMENDMENT SEARCHES - 3

Place

CANINE SNIFFS = NOT A SEARCH A dog sniff is "sui generis" (of its own kind) and only reveals illegal activities, so it does not constitute a search under the 4th Amend. - No legitimate expectation of privacy in illegal activity, investigations that only reveal illegal activity is not a search. 4TH AMEND SEARCHES - 3

Robinette

CONSENSUAL ENCOUNTER AFTER A STOP HAS ENDED A Terry stop must end when the reason for the stop has come to an end. When the officers have no reasonable suspicion to investigate any matter other than the one they were stopped for, the stop has to end. 1. The officer can convert the original situation back into an encounter. "Here is your citation you're free to go. Oh wait, one more thing, you don't have any guns on you do you? No? Can I search the vehicle?" Suspect doesn't have to be told the stop is over and he is free to go. STOP AFTER A STOP - 11

Acevedo

CONTAINERS IN VEHICLES if there is probable cause to search a car, then the entire car—including any closed container found therein—may be searched without a warrant. But if there is probable cause only as to the container in the car, then only the container may be searched. o Search of the entire vehicle unreasonable under 4th amendment if there is only probable cause for a single bag or item within the car. o Holding: Presence of package in car does not confer probable cause to search the whole car. SEARCHES - 15

Dunn

CURTILAGE - SEARCH 4 factors to determine whether something falls within the curtilage: 1) proximity to home 2) included within enclosure surrounding home 3) nature of use (intimate family activities) 4) steps taken to protect the area from observation by people passing by. 4TH AMENDMENT SEARCHES -2

Shatzer

CUSTODY - TIME DETERMINATION o If an in-custody suspect, in response to Miranda warnings, invokes his right to counsel, law enforcement may re-initiate contact with the suspect if the suspect experiences a break in police custody of at least 14 days. Miranda warnings should be re-advised. Officer may revisit the suspect and resume the interrogation after a two-week lapse CUSTODY -27

Types of Felonies

Capital Felony 1st Degree Felony 2nd Degree Felony 3rd Degree Felony State Jail Felony

Search Warrant Composition

Composed of Three Parts: o 1.) Warrant Itself - first page and single piece of paper, directed to a residence, has a list of what can be seized, signed by the judge. o 2.) Affidavit - Which shows probable cause (must pass muster under Gates). Police officer goes to Judge with Aff., signed after being sworn, probable cause support for issuance of warrant- filed with court clerks office- MOST IMPORTANT PART OF WARRANT (very touchy are on what is sufficient P/C). o 3.) Reciept and Inventory - the officer must catalog and list everything they took from the house. When search is completed, entitled to a copy of the receipt and inventory.

Confessions and Reliability:

Confessions must be voluntarily made by one who has the capacity to appreciate the significance of what is being done. Note: Voluntariness is determined by looking at the totality of the circumstances, especially when the confession was given while in custody. Page 42 Note: Capacity is also determined by looking at the totality of the circumstances. Age, influence of drugs, intelligence, and potential for coercion are considered.

Determining whether a confession is voluntary

Consider the TOTALITY OF THE CIRCUMSTANCES Factors: 1. Length of interrogation 2. Whether D was deprived of basic bodily needs 3. Use of force or threat of force 4. Deception 5. Age, level of education, and mental condition of suspect 6. D's characteristics (age, mental state) may be relevant

U.S. v. Ross stands for what rule and exception

Container Rule and the vehicle exception

What are the (4) types of Evidence

Contraband: Illegal to have, Instruments of the crime, Evidence, Fruits/proceeds of the crime.

4.) Search of Containers In Vehicle Belonging To 3rd Parties

Cops can search a container possessed by a 3rd party. (Houghton)

What is the scope of an incident to arrest search of an automobile?

Cops can search a vehicle if arrest is made in close proximity to the vehicle such that arrestee could access vehicle for weapon/evidence or if they have reason to believe that evidence of the crime resulting in the arrest exits in the automobile. Search is limited to the passenger area of the vehicle (does not include the trunk.(Gant). i. Example: Cops find marijuana in the house. D pulls up in truck. Cops find drugs on person. Is identified as owner of house. Cops have p/c to arrest (marijuana in house, D is owner of house). ii. "Reason To Believe" Analysis on Exam: If a court were to hold that, discovery of drugs in house and drugs on person gave cops "reason to believe" that evidences of the crime of arrest exists in the vehicle, then search of car is a valid search.

Forcing disclosure of informants identity

Courts avoid forcing disclosure of informant's identity but courts can do a private in-camera inquiry. (McCray)

Detentions Based On Anonymous Tips

Courts give greater emphasis on anonymous tips that are made to future conduct of other people is enough to detain person on reasonable suspicion. (White)

Cruel and Unusual Punishment:

Courts may not impose a sentence that is significantly disproportionate to the crime. Rationale: One of the objectives behind punishing criminals is to protect society. In determining a Page 56 sentence, judges may consider facts that indicate an individual's remorse, danger to society, or potential for rehabilitation. However, the bottom line is that the sentence cannot be unreasonable in view of the facts.

Reasonable Expectation of Privacy:

Courts will look at the totality of the circumstances in determining whether or not there was a reasonable expectation of privacy.

What action by the police starts the process of miranda?

Custody + Interrogation Then the subjects gets the warning and waiver.

Mendenhall

DEFINITION OF SEIZURE - To be a seizure for 4th amendment purposes, "a reasonable person would have believed that he was not free to leave." No seizure occurred when in airport concourse, officers approach D and ask to see her airline ticket and ID. After seeing a discrepancy between ticket and ID, officers returned ticket and ID and asked if she would follow them to private area; she did and gave officers consent to search her bags. Drugs were found. o This was an encounter because suspect was free to leave- could have been Joe Morgan. o No suppression because no intrusion upon any constitutionally protected interest. STOP V. ENCOUNTER - 8

Gates

DEMONSTRATING PROBABLE CAUSE Abandoned rigid Spinelli test and adopts "TOTALITY OF THE CIRCUMSTANCES" - Magistrate to make a practical, common-sense decision whether given all the circumstances, there is a fair probability that contraband or evidence of crime will be found in particular place. * Two prongs of Spinelli still a factor, but a balancing test instead of rigid test. WARRANTS AND PROBABLE CAUSE - 5

Spinelli

DEMONSTRATING PROBABLE CAUSE Two Prong analysis of what to provide in affidavit to magistrate in establishing probable cause for warrrant. 1) Basis of Knowledge (underlying circumstances) 2) Veracity (credible or reliable) Proven as independent of one another WARRANTS AND PROBABLE CAUSE - 4

Edmond

DRUG CHECKPOINTS - SUSPICIONLESS SEIZURE - SUBJECTIVE INTENT vehicle checkpoints to check for drugs in cars unconstitutional because the purpose of the program is to uncover evidence of normal criminal activity; this is different than checkpoint programs designed to serve purposes closely related to problems of policing the border or ensuring roadway safety. Could carry out this same plan by looking for drunk driving, then use Gant to look for evidence of intoxication in vehicle, where you find drugs. Could still have a dog sniff outside the car because this not a search. o Subjective intent matters here - primary purpose of the checkpoint ROADBLOCK, CHECKPOINTS AND SUSPICIONLESS SEIZURES - 19

Right To Self Representation

Defendant has a right to self representation (properia persona = pro per) provided that the waiver of counsel is knowingly, voluntarily and intelligently made. (Faretta) However, where a defendant is mentally incompetent to understand the nature of his charges or the proceedings, a court may deny the defendants right to self representation. (Edwards) i. Waiver Exception - Defendant has a right to waive right to counsel and conduct his own defense.

When can bail be denied?

Defendant is charged: -with a capital offense where the proof is evident -with a felony and has 2 prior felony convictions -with a felony and while on bail for felony -with a felony involving the use of a deadly weapon with 1 prior felony conviction.

What is required of a Defendant who wants to waive his right to a jury in a felony case?

Defendant must have an Attorney before he can waive his right.

Speedy Trial:

Defendants are entitled to a reasonably speedy trial.

Right to Trial by Jury:

Defendants are entitled to a trial by jury for serious offenses only.

Whenever a duty is imposed on a sheriff, his ______ may lawfully discharge the duty.

Deputy

Hearsay Exceptions:

Different jurisdictions recognize different exceptions to the general rule against admitting hearsay. Listed below are some of the more common exceptions: 1. Admissions 2. Ancient documents 3. Business records 4. Public records 5. Dying declaration 6. Family history Page 51 7. Prior inconsistent statements 8. Prior consistent statements 9. Judgments 10. Church records 11. State of mind 12. Present physical state 13. Prior physical state for purposes of treatment 14. Reputation 15. Spontaneous declarations 16. Vital statistics 17. Prior recorded statements of unavailable witnesses Note: The evidence codes should be referred to. Generally the exceptions are all given under circumstances that would ensure their trustworthiness.

Texas Supreme Court

Does not have Criminal Jurisdiction

Dog Sniffs

Dog sniffs of luggage is not a search and therefore not protected under 4th amendment. (Place)

Does the Miranda Statement have to be in there exact for of the Miranda decision?

Duckworth v. Eagan NO ! There are required warning though1) right to silence , 2) Anything you say can be used against you 3) Right to counsel attorney and one will be appointed to you if you cannot afford one.

What invalidates Consent

Duress, threats violence, coercion, deception, illegal arrest, illegal arrest

During Trial Contempt and the Right to a Jury:

During trial, a judge may sentence an individual to more than six months in jail for contempt, as a punishment, without a jury. Rationale: The rationale for this is that since the judge already has the evidence before him, and since a judge needs the power to immediately enforce his orders in order to maintain court room decorum, the necessity for a jury is dispensed with.

Wolf

ER applies only to the federal government.

Hudson

EXCEPTION TO THE EXCLUSIONARY RULE Violation of knock-and-annouce requirement does NOT justify the exclusion of evidence found in the home. - Other exceptions: Plain view doctrine, exigent circumstances doctrine. 1

Mapp

EXCLUSIONARY RULE Imposes the exclusionary rule on the states "evidence acquired by an illegal search or seizure is inaddmissible as a matter of due process, not only in federal courts but also in state courts. 1

Once a suspect invokes his Miranda rights can the police continue to question subjects?

Edwards v. Arizona: Having expressed his desire to deal with the the police onl through coulse the suspect is not subject to further interrogation

U.S. v. Mendenhall

Established test to determine whether stop has occurred (aka the REASONABLE SUSPECT TEST): A person has been seized for purposes of the Fourth Amendment only if, in light of all the circumstances surrounding the incident, a RP would have believed that he or she was not free to leave.

Squeezing Luggage

Even though exterior of luggage is not protected, such protection does not include manipulating the exterior to feel what's inside. Thus, the inside of the bag has absolute protection. Squeezing bags constitutes a SEARCH=needs search warrant (Bond)

Good Faith Reliance on Invalid Warrant:

Evidence discovered by police in good faith reliance on a warrant that is subsequently shown to not have been based on probable cause is admissible. Rationale: Again public policy favors preventing intentional or reckless misconduct by police. If they are acting in good faith, this policy is not advanced by suppressing probative evidence.

Independent Source:

Evidence obtained from a source that is unrelated to the illegal act will be admissible.

Evanescent evidence

Evidence that can dissipate like blood alcohol level in a DUI case.

Searches and Methods that "shock the Conscience":

Evidence that is obtained by means that "shock the conscience" will not be admissible. Situations to look out for: Especially in situations involving drug enforcement, there are times when shocking actions by foreign officials may be used to gather evidence. It is significant to note that foreign officials are not subject to Constitutional restraints, however if the methods they have used "shock the conscience," the evidence will not be admitted.

Mistakes and warrants

If a mistake is made in executing a warrant, the search is permissible as long as the police action is REASONABLE.

Inevitable Discovery:

Evidence that would have been discovered without an illegal act is admissible. Example: Police have a warrant to search a safe for contraband. When they arrive on the scene, they unlawfully arrest the defendant, who subsequently tells them that contraband is in the safe. The contraband would be admissible since it would have been found anyway.

Fruit of the Poisonous Tree:

Evidence that would not have been obtained but for improper conduct is not admissible at trial. Example: If a police officer stops a vehicle without probable cause and sees contraband on the seat, the contraband may be excluded as evidence under the Exclusionary Rule because it was obtained as a result of an illegal stop. Example: (same facts as above) If on the way to the police station, the defendant confesses, the confession may be excluded as Fruit of the Poisonous Tree, because the confession was a result of the chain of events set in motion by the illegal stop.

Aggravated Offenses

Except as otherwise provided, same as the primary crime

Double Jeopardy and Exceptions:

Exceptions to the rule against double jeopardy include appeals, hung juries, or when retrial is ordered. Rationale: Fairness would dictate that a trial is not complete until a judgment has been reached. Consequently if the jury cannot decide or if fairness dictates a retrial, a judgment has not been reached. However, especially in the case of a hung jury, it is arguable whether or not a new trial is an abuse of discretion. With regards to an appeal, the defendant seeks an appeal on his own accord and thereby impliedly consents to a retrial based on the findings of the appellate court. Page 54 Double jeopardy and situations to look out for: • An individual may be tried in both a criminal court, to be punished for an act, and again in civil court, to compensate his victim . • An individual may be tried for the same offense by different state courts, as well as a federal court, and also potentially by an Indian court, if all courts have jurisdiction. • A juvenile adjudicated as delinquent by a juvenile court and subsequently determined to be a proper subject for the adult legal system, who is tried again as an adult for the same act, has been twice put in jeopardy. The juvenile must be determined fit for an adult court prior to any trial for delinquency. • Subsequent trials for greater included offenses are prohibited. For example, cannot try for voluntary manslaughter and then upon acquittal charge one with second degree murder.

U.S. v. Leon

Exclusionary rule does not apply if police REASONABLY rely on an invalid search warrant to conduct a search of seizure.

Municipal Court

Exclusive original jurisdiction within territorial limits for - Municipal Ordinances; and - Punishable by fine not to exceed: *$2000 for fire safety, zoning, or public Health and sanitation ordinances; or *$500 for all other city ordinances Concurrent Jurisdiction with Justice Court in precinct in all criminal cases arising under state law that: -are punishable by FINE ONLY -arise under the Alcoholic Beverage Code (no confinement)

Emergency In House

Exigency of somebody being in danger in the house justifies a warrantless entry

REOP Pertaining To Discarded Garbage

Expectation of privacy must be reasonable. Society does not have a reasonable expectation of privacy pertaining to discarded garbage and 4th amendment does not apply. (Greenwood)

Right To Appointed Council (Betts)

Extended Gideon. Right to counsel for felony offenses.

Right To Appointed Council (Argersinger)

Extended Gideon. Right to counsel for misdemeanors in addition to felony offenses.

Exterior of Vehicles

Exterior of vehicles has no 4th amendment right to REOP.

Hiibel

FAILURE TO PROVIDE IDENTIFICATION an officer has the right to demand identification as part of an investigation during a Terry stop. But doesn't authorize officer to arrest for someone for not providing ID. MISC TERRY - RELATED ISSUES -11

Probable Cause

Facts and circumstnaces known to the officer by his observation of the suspect that would lead a rational person to believe that the suspect has in fact committed a crime. Significantly lower standard than "beyond a reasonable doubt"

Consent Acquired During Unlawful Arrest or Detention

If a person is unlawfully arrested or detained, any consent acquired is invalidated.

Legislative statement regarding family violence in ART. 5.01

Family violence is serious danger and threat to society and its members. Victims of family violence are entitled to the maximum protection from harm or abuse or the threat of harm or abuse as is permitted by law

5 years

Felony theft / Robbery / Burglary, adult victim / Kidnapping, adult victim / Injury to elderly or disabled not punishable as 1st degree / Abandoning or endangering a child / Insurance Fraud

Rakas Test

For D to assert a Fourth Amendment violation, his or her own expectation of privacy must have been violated.

When can an officer Arrest?

For Felony and Misdemeanor committed in presence and for Probable cause of that a person committed a felony ONLY NoT a misdemeanor.

Confessions and Admissibility:

For confessions to be admissible, they must be reliable and must be obtained by proper means.

Davis

GOOD FAITH EXCEPTION FOR DEFECTIVE WARRANTS Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. Sole purpose of excluding evidence is to deter police conduct, when police act in goodfaith reliance on binding appellate precedent, excluding the fruits of that search serves no deterrent purpose, and therefore exclusion would not apply. • decision marks another step in the turn away from the principled justifications for the exclusionary rule toward a deterrence-only rationale • "exclusion is not a personal constitutional right, nor is it designed to redress the injury of unconstitutional search, it is only applicable where it would lead to appreciable deterrence of future police violations. ATTACKING WARRANTS - 6

Leon

GOOD FAITH EXCEPTION FOR DEFECTIVE WARRANTS Where an officer acts in good faith in reliance on an invalid warrant, evidence obtained under thw arrant are NOT subject to exclusion 4 circumstances where suppression remains appropriate remedy: • 1. Magistrate or judge issuing warrant was misled by info in an affidavit that affiant knew was false or would have known was false except for his reckless disregard of the truth. • 2. Magistrate deemed to have wholly abdicated his judicial role (hardly every applicable). • 3. Obviously apparent that officer has no probable cause to search. • 4. Particularity requirement not sufficiently met as to place to be searched or things to be seized. ATTACKING WARRANTS - 6 * franks hearing - challenge truthfulness of warrant application

Time of Execution

General rule is that daytime searches are preferred over nighttime between 7am and 10pm. For searches involving a controlled substance, there is no time requirement, just that the substance be on the property at the time of search.

Probationers and Warrantless Searches:

Generally no warrant is needed to search a probationer's home. Rationale: Generally, one of the terms of probation is that the probationer consent to warrantless searches of his home. Consequently, this is negotiated and agreed to. Note: Police cannot act arbitrarily or capriciously.

Rights of Prisoners:

Generally prisoners may not be deprived of rights unless they affect safety or the smooth operation of the prison. Examples: Prisoners have a right to medical care and to practice their religion. However they are not entitled to chose their place of incarceration or to unionize, as these would interfere with the smooth operation of the prison.

Administrative Agencies and Warrants:

Generally, administrative agencies are subject to the same requirements as police, regarding warrants. Rationale: Individuals are entitled to a reasonable expectation of privacy in certain areas. The government should respect this expectation. However, administrative agencies do not project the same aura of force and intrusion that police do. Consequently, there are circumstances where the warrant requirement has been relaxed.

Katz v. U.S.

Government's electronically listening to and recording D's conversation in a phone booth constituted a search. Changed test from trespass to reasonable expectation of privacy.

Franks Hearing

Hearing where D attempts to show that officers who prepared warrant did so in reckless disregard for truth or engaged in deliberate falsification.

Confrontation and Hearsay:

Hearsay is an out of court assertion offered to prove the truth of the matter asserted. Hearsay violates the right to confront one's accusers. Situations to look out for: "Hearsay" is admissible as long as it is not being offered to prove the matter asserted.

California v. Ciralo

Held that aerial surveillance from 1,000 feet is not a search, even inside the curtilage

What can here-say be used for.

Here say can be used to establish Probable cause, and it can be used in a grand jury but it cannot be used in Triad

Hospital Turning Over Urine Samples To Police Disapproved

Hospitals may not draw blood sample without consent and analyze it for drugs without a search warrant and turn the results over to the police.

Hotel Employee Consent

Hotel employees may not consent to the search of a particular room during the period in which it has be rented by a guest.

What case explains the Knock and Announce Rule

Hudson v. Michigan

When is the knock and announce not necessary in executing a warrant.

Hudson v. Michigan : It is not necessary when circumstances present. i.e.. threat of violence, destruction of evidence or if knocking would be futile.

Reasonable Suspicion

Hunch--RS--Preponderance of the evidence (51%) Less demanding requirement than PC, but officer must still be able to point to SPECIFIC AND ARTICULABLE FACTS, which taken together with the rational inferences from those facts, reasonably warrant the intrusion. Courts must look to the TOTALITY OF THE CIRCUMSTANCES.

Harris

IMPEACHING THE DEFENDANT-WITNESS Evidence of D's statments in Cross-x of D made while D was in custody, being interrogated, and not warned are ADMISSIBLE as long as not involuntary. EXCEPTION TO MIRANDA - 28

Doyle

IMPEACHMENT WITH PRIOR SILENCE While in custody, after Miranda warnings are given, prohibits the government from using the defendant's silence against him, even for impeachment purposes. o Applies to both case-in-chief and cross-examination. EXCEPTION TO MIRANDA -28

King

IMPERMISSIBLY CREATED EXIGENCY - DESTRUCTION OF PROPERTY warrantless searches conducted in exigent circumstances do not violate the Fourth Amendment so long as the police did not create the exigency by violating or threatening to violate the Fourth Amendment. • Police may enter a home without a warrant in response to an emergency (including the imminent destruction of evidence) so long as the police do not themselves create the emergency through conduct that violates the Fourth Amendment. WARRANTLESS SEARCH - EXIGENT CIRCUMSTANCES - 16

Confessions Made Subsequent to Invalid Confessions:

If a confession is made while in custody, but prior to Miranda warnings, a subsequent confession made after Miranda warnings will not be inadmissible. Situations to look out for: While this is the law, an argument could still be made that the second confession was "coerced" by conduct based on the first.

Limiting Forcible Blood Draws On DUI's Based On Extigent Circumstances

If a cop is going to forcibly draw blood from a suspect for DUI purposes, cops will have to show that they could not obtain a search warrant within a reasonable amount of time.

Right To Appointed Council (Shelton)

If a defendant, either in federal or state court, is charged with a misdemeanor (Argesinger) or a felony (Betts) and he is indigent and requests counsel, the court is obligated to appoint counsel for him, but the defendant must ultimately get jail time on that case.

Searches

If a government agent intrudes on an individual's "reasonable expectation of privacy," a search has taken place. Situations to look out for: • A violation of the 4th Amendment prohibition against unreasonable searches requires governmental action. However, it should be noted that one acting on behalf of police is a government agent, while private citizens acting on their own are not. • Public school officials are government agents, while security guards are not, unless they have been deputized.

Challenging Evidence Obtained Under Warrant:

If a warrant includes a material false statement that was deliberately or recklessly included, the evidence obtained under the warrant is inadmissible.Rationale: Like the Exclusionary Rule, the rationale behind not allowing evidence obtained under a defective warrant is to prevent overzealous officers from acting improperly.

Anonymous Tips Not Based On Predictive/Future Behavior

If anonymous tip is not based on predictive information or corroborative observation of future behavior, the tip is not sufficient to detain.

Common Authority and Special Relationships

If husband and wife both present & one says yes to search and the other says no to search, cops cannot search. However, if husband initially says no to search but then leaves and wife consents while husband is away, cops can search premises. (Georgia v. Randolph)

What is the doctrine of imputed knowledge?

If one police officer knows it is an excepted principal that all officers know.

Remedy for Violation of One's Right to a Speedy Trial:

If one's right to a speedy trial has been violated. The case must be dismissed.

What is the good faith doctrine?

If police act under a reasonable faith that a warrant has been obtained and is proper then they are covered.

Search Warrants: Situations to look out for:

If police are lawfully searching under authority of a search warrant, any evidence that they find is admissible, even if it is evidence that was not the subject of the warrant. However their search must not have exceeded the scope of the warrant. (i.e., looking in the bathroom when searching for a car).

Warrantless Searches and Investigatory Detentions:

If police detain an individual for investigatory purposes, they may frisk the detainee only if there is reasonable belief that the detainee is armed. Note: Police may search areas within reach that could be concealing a weapon.

Arresting Person For Minor Offense

If police have probable cause to arrest anybody for an offense (even if a minor offense), the arrest is left to the discretion of the police. (Atwater)

Automobiles and Warrantless Searches:

If police have probable cause to believe the car contains evidence, and the evidence may be unavailable when a warrant is finally obtained due to the mobility of the car, a warrantless search may be conducted. Rationale: Cars are by their nature, mobile. Consequently evidence may disappear. It is also significant that there is a lesser expectation of privacy in a vehicle.

Right To Appointed Council (Nichols)

If the accused is not in custody, then no right to counsel. i. Extended Scott by applying to probation as well

Challenging Falsehoods in search warrant affidavit

If the cop deliberately lies or recklessly misstates, or leaves something out of the affidavit, rule is to take out the information from the affidavit and if there is still sufficient probable cause in the affidavit, after taking out the information, then you can still get the warrant (or put in the information left out). (Franks) i. To challenge the accuracy of an affidavit you must show a reckless disregard for the truth

Plain View

If the cop is lawfully in a place he has a right to be and sees something without doing a search, is in plain view and is 1.) narcotics, weapons 2.) or evidence of a crime, the evidence in plain view is admissible. Two Main Issues: 1.) Do the officers have a right to be where they are when they made the observation? 2.) The object that is ultimately seized in plain view must be inherently contraband or criminal evidence

"Free" Will of Defendant:

If the defendant gives evidence, of his own free will, that is not motivated by circumstances resulting from the illegal action, it will be admissible. Situations to look out for: • A confession given by a defendant who, after being released, returned to the police station and confessed, was held to be admissible. • A confession given after three Miranda warnings, a conference with friends, and six hours had passed after an illegal arrest, was held inadmissible. Rationale: Defendant's confession did not appear to be motivated by anything other than the apprehension caused by the arrest. The fact that Miranda warnings were given after the illegal arrest but before the confession, may be considered, but does not necessarily make the evidence admissible.

"Good Faith" Exception To Exclusionary Rule

If the government carries out a search warrant in "good faith," then the ER DOES NOT apply to the search (search is valid) if police act in accordance with a search warrant, its presumed lawful, but can be challenged by defense. Burden is on the prosecution to prove search was in good faith. (Leon)

The Exclusionary Rule and Harmless Error:

If the government is able to demonstrate beyond a reasonable doubt that the defendant would have been convicted without the admission of the illegally Page 39 obtained evidence, the conviction will stand. Rationale: Rather than make form more important than substance, the courts will overlook the fact that the evidence was illegally obtained, if the result would not be changed. There is also a strong public policy favoring judicial economy.

Confessions and Public Safety:

If the motive behind the questioning is an immediate fear for the safety of others, a confession may be admitted even though the questionee was deprived of her right to counsel and did not receive Miranda Warnings. Rationale: Remember the Exclusionary Rule is intended to protect the public from over zealous police. If the primary motivation is a concern for public safety, then the purpose behind the Exclusionary Rule would not be advanced; only probative evidence would be lost. Note: It should also be noted that there is a strong public policy in favor of protecting the public.

The "Automobile Exception"

If the police have existing probable cause to believe that a particular vehicle contains contraband (something that is inherently illegal like drugs, sawed off shotgun, crime evidence) the police can search the car without first obtaining a search warrant. (Carney)

Warrantless Searches and the Danger of Losing Evidence:

If there is a reasonable fear that evidence may be lost, police may seize it immediately without acquiring a warrant. Examples: When making an arrest for driving under the influence, a breath, blood, or urine test may be administered immediately, because by the time a warrant is obtained, the evidence will be gone.

Warrantless Searches and Emergencies:

If there is an emergency, any area may be searched without a warrant. Examples: Bombs in schools; contaminated food or drugs that may be distributed; children in trouble; fires; etc. Key Words or Phrases: 1. emergency 2. any area 3. may be searched 4. without warrant

Right To Effective Assistance of Counsel (Cronic)

If you can show councils performance was tantamount to having no attorney at all (sleeping lawyer), the claim is a 6th amendment violation and the defendant does not need to show prejudiced. The defendant only needs to show that the attorneys representation was deficient (first prong of Strickland). (Cronic)

What is the container rule?

If you have authority to search a vehicle you can search a container that can conceal the object of the search.

Exclusionary Rule:

Illegally obtained evidence is not admissible at trial.

Situations Where Illegally Obtained Evidence May Still Be Admitted:

Illegally obtained evidence may still be admissible if it was obtained through the free will of the defendant, it was obtained from an Page 37 independent source, or it would have inevitably been discovered.

What Case discusses the Test For Probable Cause

Illinois v. Gates

Right To Appointed Council (Scott)

Imprisonment cannot be imposed unless the accused is provided counsel.

Burden of Proof:

In a criminal case, the state has the burden of proving it's case "beyond a reasonable doubt." Situations to look out for: Beware of situations where the burden of proof is shifted. It is not the responsibility of the defendant to prove his innocence. It is the responsibility of the state to prove each and every element of the case.

6th Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defense.

Criteria to Consider Regarding the "shock the Conscience Test:"

In determining whether or not a method of obtaining evidence "shocks the conscience," the following criteria will be weighed: 1. How probable is it that the evidence will be found? 2. How significant is the evidence? 3. How shocking is the method? 4. Are there alternative methods of obtaining the evidence?

Reasonableness and Speedy Trials:

In determining whether or not a defendant was given a speedy trial, courts consider the following questions: 1. How long was the delay? 2. Why was there a delay? 3. Did the defendant object to the delay? 4. Was the defendant prejudiced by the delay?

Third Party Consent (Apparent Authority)

In obtaining consent, an officer can rely on apparent authority of a third party if the cops reliance is objectively reasonable. i. Objectively Reasonable - Does the person in possession of the object (ie car) have the apparent authority for the police to search it? (Rodriguez)

Due Process Consideration and Identifications:

In order for an identification to be inadmissible, it must be shown that it was rendered under circumstances that are unnecessarily prejudicial and that the identification was substantially likely to be unreliable. Situations to look out for: • In an emergency situation such as where a victim is in immediate danger of dying, presenting him with the suspect for purposes of identification may not be unnecessarily prejudicial. • This is an area to demonstrate your ability to argue. Is presenting a suspect in handcuffs unnecessarily prejudicial? Courts have held that trying defendants in prison garb was.

Prejudicial Identifications:

In order for an identification to be inadmissible, it must be shown that it was rendered under circumstances that are unnecessarily prejudicial and that the identification was substantially likely to be unreliable. Situations to look out for: • In an emergency situation such as where a victim is in immediate danger of dying, presenting him with the suspect for purposes of identification may not be unnecessarily prejudicial. • This is an area to demonstrate your ability to argue. Is presenting a suspect in handcuffs unnecessarily prejudicial? Courts have held that trying defendants in prison garb was.

To Support Warrantless Arrest Based on Info From Informant

In order for police to make an arrest without a warrant, a reliable informant must provide an exact description of the suspect and the circumstances surrounding the crime. (Draper)

What does the Peyton Doctrine State

In the absence of an emergency or (6) exigent circumstances police cannot enter a home without a search or arrest warrant .

What is the difference between waiver and consent?

In waiver you must know you have a right to refuse. Consent it is not necessary Waiver is trial related rights.

Define "member of household"

Includes a person who previously lived in a household

Incompetent Defendants:

Incompetent defendants may be briefly detained in a mental institution to evaluate and treat. However, a longer detention may only be made pursuant to a civil commitment proceeding. Note: To hold one in a mental institution as punishment in lieu of jail because he is incompetent, is violative of the Constitution.

Appeals and Indigency:

Indigent defendants must not be denied the ability to appeal because of lack of funds. Examples: Indigents must be given free transcripts, and provided with legal counsel if the appeal is granted as a matter of right (i.e., death penalty). This does not mean that any time an indigent individual wishes to appeal a judgment, that he must be appointed free counsel.

Warrantless Searches and Unreliable Listeners:

Individuals are under no obligation to refrain from repeating what another has told them, absent a privilege. Examples: W hen one talks to someone, they assume the risk that they are "bugged" or that they will repeat what one has said. Even though an individual may feel that the conversation was confidential, there is no reasonable expectation of privacy, in the eyes of the law, unless a specific privilege exists (attorney/client, physician/patient, spouse/spouse, etc.)

Define "household"

Individuals living together in the same dwelling, regardless of wether the individuals are related

Define "family"

Individuals related by consanguinity (blood) or affinity (marriage), former spouses, biological parents of the same child without regard to marriage, and foster child and foster parent, wether or not the individuals live together.

Confessions and Grand Juries:

Individuals testifying before a grand jury may not refuse to testify, or assert any right to counsel. Rationale: The purpose behind a grand jury proceeding is to gather enough information to determine if there is cause to charge an individual. Since its purpose is not to punish (theoretically) it does not conflict with the Constitution.

Extended GPS Tracking

Installation of a GPS device on a vehicle and its use to monitor a vehicles movements constitutes a search.

What is an encounter

Investigation of behavior without an arrest. Police walking up to suspect and asking a question.

Jurors and Race:

It is inappropriate at jury selection to raise the issue of race, unless it is a major part of the offense or the crime is an interracial capital offense.

Jail DNA Testing

Jail has a right to take DNA testing from felony suspects.

"Flight" As A Basis For Detention

Just because a person is located in a high-crime area is not enough to support reasonable suspicion. But unprovoked flight is- running from the police justifies temporary detention. (Wardlow)

What are the (3) parts of waiver and define them ?

Knowing intelligent voluntary Knowing (aware of rights ) Intelligent (you understand them Voluntary?

TO waive you Miranda Warning you must do so?

Knowingly, Intelligently and Voluntarily

What case stands for the proposition of electronic?

Kyllo v. US

What devices other than binocular can police use in plain view searches?

Kyllo v. US police cannot use scanners or infrared.

Duration of Detention (What are the limits?)

Length of detention should only be the necessary amount of time it takes for the police to confirm or dispel their suspicions.

How should line ups occur ?

Line-ups: - At least six people - The want the people viewing the line up to see the profile, the front and the other profile. - Each person in the line-up has a number - The test for Identification Procedure: o Is the process so unduly suggestive that it leads to irrevocable misidentification - US v. Wade stated that the lineup is a critical stage of the prosecution and a lawyer should be present when the lineup takes place. - If you were the Defense Attorney and you saw the lineup that we just saw, what if anything would you do? o Pre-trial Motion to Suppress—don't say anything to the Sergeant o Exclude the lineup and the witness that identified your client o Fruit of the poisonous tree

Detention Search For Weapons Extended To Autos

Long extends Terry v. Ohio and frisk rule by permitting weapons search of auto's interior and any containers that could conceal weapons if officer can articulate reasons why he believes auto contains weapons during the lawful detention of auto occupant. (Long) i. Containers can be searched only if weapons can be logically stored in such container.

Lower Court Findings and Habeas Corpus:

Lower court findings of fact are generally deferred to unless there appears to be an abuse of discretion. Rationale: The lower court sees the witnesses and hears the testimony. It is thus in the best position to observe demeanor and make decisions regarding credibility.

Bond

MANIPULATIONS OF BAGS IN PUBLIC TRANSIT - SEARCH A law enforcement officer's physical manipulation of a bus-passenger's bag violates the 4th amendment. 4TH AMEND SEARCHES - 2

Hayden

MERE EVIDENCE RULE ABOLISHED Abolished "mere evidence rule". Under this rule police could not search for mere evidence of crime, but only contraband, fruits of the crime or instrumentalities of the crime. - Now there must be a nexus between the item to be seized and the criminal behavior. WARRANTS - 5

Brown

MIRANDA DO NOT PURGE TAINT OF ILLEGAL ARREST Miranda warnings not enough to break the causal chain because confession occurred only 2 hours after illegal arrest, and with no intervening event. o Have to look at what may have intervened, and the flagrancy of the violation. The more flagrant the violation, the more the officer has disregarded a person's constitutional rights. • Flagrancy can affect the causation analysis so something that is a technical violation might allow admission of evidence, while a more flagrant violation might not, even though causal effect might be the same. Miranda warnings DO NOT purged the taint of an illegal arrest FRUITS OF THE POISONOUS TREE

Powell

MIRANDA WARNING SUFFICIENCY *- Miranda warnings given to suspect were not defective because the language of the warnings reasonable conveyed to the suspect that the right to counsel applied "during" interrogation. o Considers timing of attorney access. o "You have the right to use any of these rights at any time you want during this interview" (Catch-all) reasonably conveyed to the suspect that the right to counsel applied "during" interrogation.

"Neutral and Detached" Magistrate Warrant Requirement

Magistrate must not have any interest in the investigation or the search/seizure

What case establishes Security/ Protective Sweeps?

Maryland v. Buie

What are the Parts of Miranda

Miranda has 4 parts Custody, Interrogation, Warning, Waiver.

No limitations

Murder / Manslaughter / Sexual Assault child victim under 17 not spouse / Aggravated Sexual Assault with child victim under 14 / Sexual assault cases with DNA that does not match the victim or any other person whose identity is readily ascertained / Continuous sexual abuses of young child or children / Indecency with a child / Leaving the scene of an accident that resulted in death / Trafficking of person, child victim sex offenses / Continuous trafficking of persons, child victim sex offenses

Knowles

NO SEARCH PURSUANT TO CITATION when issuing a citation instead of arresting a suspect, the search incident to arrest exception does NOT apply. o Knowles pulled over for speeding. Given a citation. Could have been arrested under IA law but was not. Car searched and bag of pot and pipe found. This is a violation of 4th amendment.

Is probable cause needed to investigate

NO! Probable Cause is not needed to investigate.

Drayton

NOT A SEIZURE three officers interact with and question bus passengers at normal stop. o Court says that officers did not need to tell the passengers they could refuse to engage. o Under Bostick, if a reasonable person would feel free to terminate the encounter, then he or she has not been seized. STOP V. ENCOUNTER

Open Skies

No 4th amendment right of privacy protection in the sky, unless the plane is abnormally low and hovers over the curtilage of the property. (Riley)

Does an unlawful arrest deprive the court of jurisdiction?

No an unlawful arrest does not deprive the court of jurisdiction.

Are booking questions part of the interrogation?

No booking questions are not interrogation and do not require miranda.

Does Miranda have to be repeated ?

No it does not

Forfeiture of Contraband must begin

No later than the 30th Day after seizure

5th Amendment

No person shall be held to answer to a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, nor shall any persons be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, or without due process of law; nor shall private property be taken for public use, without just compensation.

Other sources of Probable Cause (Crime Victim/Witness)

No prior reliability need be shown because he acts with intent to aid the police in law enforcement because of his concern for society or for his own safety. He does not expect any gain or concession in exchange for his information. Has inherent trustworthiness.

3. Collateral Appeals

No right to counsel for collateral appeals (habeas corpus) {Even for death row Inmates}

Detention Facilities

No right to privacy in jail, holding cells, prisons, or back seat of patrol car. (Hudson)

If a vehicle stopped unlawfully and searched is that search lawful?

No the Carroll doctrine itself may justify the stop that is the stop can be made if there is probable cause to believe that the vehicle contains contraband or evidence of criminal activity.

Do Volunteer statements receive waiver?

No!

Is a warrant needed for a terry Stop?

No! Only Reasonable Articuable Suspicion.

What must the police do to initiate a pen register or a trap and trace of phonecalls?

Not a search; however, must obtain court order. Must show that you have a REASONABLE BASIS to believe that unlawful activity is going on to get judge to sign order.

Roadblock check for drugs disapproved

Not allowed the use of dogs to sniff for drugs when roadblock was used primarily for law enforcement oriented activity. (Edmond)

Forfeitures and Owners of Property Used in a Crime:

Owners of property used in the commission of a crime are entitled to due process prior to declaration of a forfeiture. Rationale: Property used in the commission of a crime is usually in possession of the criminal and thus subject to being held by the police. There is usually an issue of urgency where the property (i.e., car, boat, etc.) is mobile and may be lost. On the other hand, once the property is in custody, there is time for notice and a hearing. Note: The owner of property used in the commission of a crime must prove that he undertook normal preventative measures to prevent criminal use of his property, not merely that he was unaware of such use.

Seizures and Owners of Property Used in a Crime:

Owners of property used in the commission of a crime have no rights to due process prior to a seizure.

Can Hearsay be used to conduct a terry stop?

PG 629. Yes Hersay from an informant can be used to to obtain Reasonable articualble suspicion for a Terry Stop.

Brigham CIty

POLICE AND PUBLIC SAFETY - EXIGENT CIRCUMSTANCE law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. • Police called about loud party, see kids drinking in backyard, enter backyard and see altercation in kitchen; officers enter house and altercation stops. • Here, community caretaking function is important for the fact that police could get to a place they otherwise might not be- the backyard. • Officers had an objectively reasonable basis to believe that the injured adult might need help and that the violence in the kitchen was just beginning. *other exigent circumstances: Hot pursuit (warden) & risk of destruction of evidence. WARRANTLESS SEARCH - 16

Wilson

POST - TERRY CASE Rule from MIMMS (automatic right under terry to order the driver out of the vehicle) also APPLIES TO PASSENGERS, so officers can automatically ask the passengers to get out of the car as well. STOP AND FRISK - 9

Adams

POST - TERRY CASE officer gets tip from informant that driver of nearby vehicle has gun in his waistband and narcotics. When officer pulls suspect over and reaches into car and pulls fully loaded revolver from suspect's waistband, no violation of Terry because the officer ONLY NEEDS to have reasonable suspicion under the circumstances. STOP AND FRISK - 9

Mimms

POST - TERRY CASE • officers in the course of a legal stop of an automobile have an AUTOMATIC RIGHT under Terry to order the driver out of the vehicle. STOP AND FRISK - 9

Johnson

POST-TERRY CASE Officer must have reasonable suspicion that the passenger or driver is armed and dangerous before conducting frisk STOP AND FRISK - 9

Whren

PRE-TEXTUAL STOPS - OKAY an individual officer's subjective intentions are irrelevant to the 4th amendment validity of a traffic stop that is justified objectively by REASONABLE SUSPICION** to believe that a traffic violation has occurred. o Suspect looks to friends lap at intersection. Turns with no blinker and speeds away. Officer has probable cause to believe suspect violated traffic code and pulls suspect over. Officer sees two bags of drugs in suspect's hands. Stop reasonable under 4th amendment and evidence discovered thereby is admissible. o a traffic stop can only be used as a pretext under Whren if the officer has reasonable suspicion to believe that the motorist has actually violated a traffic law. SEARCHES - 14

Davenpeck

PROBABLE CAUSE FOR ARREST DIFFERENT CHARGE ON WHICH DEFENDANT WAS ARRESTED an officer's subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. Basically, the reason for the stop does not have to be the reason for the arrest. • "Those are lawfully arrested whom the facts known of the arresting officers gave probable cause to arrest." ARREST - 6

Pringle

PROBABLE CAUSE WITH MULTIPLE SUSPECTS where three men were passengers in a car containing drugs, officers had probable cause to arrest all three because it was reasonable for the officer to infer a common enterprise among them. Rule: Only need probable cause to arrest one in a multiple suspect situation. ARREST - 6

U.S. v. Watson

Particularly in public place, if officer has PC he can arrest without warrant.

Special Rangers of Texas and Southwestern Cattle Raisers Association

Peace Officers who aid Law Enforcement in the investigation of theft of livestock or related property. *may make arrests and exercise all authority given to peace officers to prevent offenses

Warrantless Searches and Pen Registers:

Pen register records are admissible into evidence without any warrant requirements. Note: Pen registers record numbers dialed from a specific phone, not the specific conversations.

Self-incrimination:

People cannot be compelled to make statements that may tend to incriminate them. Situations to look out for: If individuals are granted immunity for their testimony they cannot raise the privilege against Page 50 self-incrimination, because the fact that they are granted immunity will prevent the testimony they are giving from incriminating them. Self-incrimination and Situations to look out for: • The privilege against self-incrimination applies only to statements, not tangible evidence like breath, blood, urine, hair, records, objects, etc. • Generally one may be required to answer questions on standard forms, addressed to the general public (I.R.S.). However, individuals suspected of crimes may not be required to fill out forms specifically designed to gather evidence against them, i.e., "Do you have controlled substances hidden in your home?" or "Please register the names of all people you are holding against their will." • The privilege must be asserted, or it may be waived by testifying. An individual may not bring up an issue in his defense and then refuse to submit to cross-examination about the same issue.

Informants

People who give information about past criminal happenings that they claim to have information about

Neutral Detached Magistrate

Person issuing warrant does not necessarily have to be a judge or lawyer. Instead, issuing person must meet two tests: 1.) that they are neutral and detached and 2.) Capable of determining whether probable causes exists for the requested arrest or search.

Detention of Persons on Premises

Persons maybe detained in any manner on premises. However, Police cannot detain someone that is miles away from the house. Person must be within close proximity to the premises.

Search of Persons On Premises Not Named In Search Warrant

Persons not named in warrant cannot be searched on premises. (Yabarra)

Does drug-detecting dog provide probable cause to search house?

Pertaining to houses, drug detecting dogs do not create probable cause to search house

Arrest:

Placing an individual in custody where he is not free to leave. Note: Reasonableness is the key. W hen an officer arrives on the scene and questions an individual, should the individual feel he is not "free to leave?" Consider the demeanor of the officer and the Page 40 circumstances. What would a reasonable person think? Note: Generally warrants are required for an arrest subject to the rules discussed infra.

Exception: Pre-Existing P/C During Execution

Plain view Discovery does not have to always be inadvertent. The officer has to be lawfully where he is when he makes the observation, only exception is the skies and open land.

Taking Suspect "Downtown" For Questioning

Police Cannot take somene downtown to the police station unless the police have probable cause for the arrest

1) Warrantless Arrest Based On Probable Cause

Police Officers are permitted to make warrantless arrest in a public place if police have probable cause (p/c) to believe crime has been committed by defendant. (Cannot make arrest in home based on p/c. Only in public place; crime committed can be a very minor offense) (Watson)

Official Channels (APS's/BOL's)

Police are allowed to respond to information stated over the radio. (Whitely)

Pre-trial Non-Personal Identification:

Police are not required to allow a defendant to have her attorney present when witnesses are being shown her picture for purposes of identification.

Presence of Third Parties

Police can bring victim to scene of crime to identify property or people but cannot bring in media because it is not in aid of the execution of the warrant. (Wilson)

On Scene Fingerprinting

Police can momentarily detain for fingerprints. Court is more tolerant of a momentary intrusion.

Beepers

Police can place beeper on exterior of luggage to track it but CANNOT track the luggage once it gets into a persons home. Police must then obtain search warrant once within a persons home. (Knotts)

Protective Sweep of Adjacent Areas/Structures For Officer Safety

Police can search adjacent rooms/property for other human beings, going beyond the scope of a warrant, for as long as it takes to dispel suspicion of danger for officer safety. (Bouie)

Inventory Searches

Police can search closed containers to take a proper inventory. Its permissible to do a second search of the car to protect the cops and towing company from false claims of theft and to inventory the contents of the car.

Sensory Enhancing Equipment That Does Not Penetrate The Land

Police can use sensory enhancing equipment, no matter how expensive ,as long as equipment can 1.) be available to the general public and 2.) it doesn't penetrate the inside of a house, dwelling, or business (ie. Binoculars, cameras, flashlights) (Dow-Chemical)

United States v. Chawick

Police conduct foot locker after suspects in custody for an hour and they has exclusive control over footlocker : No under search incident to arrest.

Exclusionary Rule Not Applied To Knock Notice Violations

Police didn't comply with knock-notice. Officers entered house suspected to have drugs/weapons, waited 5-10 seconds, entered home and found drugs/weapons. Ct looks at social benefits of not complying with knock-notice. Officers already had a valid warrant to get drugs, whether complied with K-N or not they were going to get the drugs. Even though didn't comply K-N, don't apply ER because they would have found the drugs anyway.

Do Police have to inform people of their right to leave?

Police do not have to inform people of their right to leave despite the fact that people may feel compelled not to do so. (Boytick)

Impound Searches

Police have right to inventory the contents of an impounded car.

Automobile Exception Not Based On Exigency

Police having time to get a s/w is not a valid defense. Just b/c police had time to get a s/w is not a valid claim. Automobile is highly mobile; thus could lose evidence- reduced expectation of privacy in auto

Detentions for Purposes of Investigation:

Police may detain a person for purposes of investigation if they have a reasonable suspicion supported by articulable facts that the detainee has information regarding criminal activity, without a warrant. Note: An investigatory detention may produce probable cause for an arrest.

Search Warrants and Consent:

Police may institute a warrantless search if voluntary and intelligent permission is granted by one with authority to do so. 1. warrantless search 2. voluntary and intelligent 3. permission 4. by one with authority

Warrantless Searches and Public School Children:

Public school officials are only required to have "reasonable grounds" to conduct searches on school campus. Note: This applies not only to the person of a student, but to desks and lockers, as well.

Warrantless Searches and Hot Pursuit:

Police may search any place reasonable when in hot pursuit of a felon, without a search warrant. Rationale: Time is of the essence when a felon is fleeing. Note: This exception applies even to a search of a private dwelling, if it is reasonable to suspect that a felon is hiding there.

Warrants and Searches:

Police must have a valid search warrant in order to violate one's reasonable expectation of privacy.

Execution of Warrants and Proper Announcements:

Police must knock and announce who they are and why they are there when executing a warrant unless there are circumstances dictating otherwise.

Warrantless Arrests and Common Law:

Police officers may arrest without a warrant if there are reasonable grounds to believe that there has been a felony committed by the arrestee, or if the arrestee has committed a misdemeanor in the conscious presence of the officer. Things to look out for: "Reasonable grounds" is an area for argument. "Conscious presence" can mean any of one's senses. If an "arrest" was made by a non-officer, was the arrestor acting in concert with the police?

Define Seizure ?

Police physically restraint so that a reasonable person believes they are not free to go.

U.S. v. Jones

Police putting a GPS device on D's vehicle and tracking D's movements for more than 28 days constituted a search. Katz did not repudiate trespass. Analysis should simply add reasonable expectation of privacy to trespass.

Prejudicial Identifications:

Prejudicial pre-trial identifications may taint an in-court identification, making it inadmissible. However, in-court identifications are generally admissible because they are considered independent. Page 48 Note: The reasoning behind this does not seem to be to discourage overzealous police as much as it is to prevent the admission of unreliable identifications. Once an individual develops an impression, it is sometimes impossible to dispel that impression. However, generally courts feel that they are independent if there was a prior opportunity to view the suspect, such as when the crime was committed.

Objects of the Code

Prevention of Crime Exclude the offender from all hope of escape Hold trial in timely manner Bring out Truth (evidence) in order to convict or acquit To ensure a fair and impartial trial Execute the sentence of the law when declared

Confessions and Miranda Warnings:

Prior to a custodial interrogation, police must inform the person being interrogated that: 1. He/she has the right to remain silent. 2. Anything he/she says can and will be used against him/her in a court of law. 3. He/she has the right to an attorney. 4. If he/she cannot afford an attorney, one will be appointed for him/her, if he/she so desires. Remember: Miranda Warnings only apply to custodial interrogations by police or their agents. Note: The category of police agents can be quite broad. For example, a confession obtained during a psychiatric exam may be inadmissible if the defendant was not appraised of his right to remain silent.

Requirements Prior to Habeas Corpus:

Prior to obtaining habeas corpus relief, an individual must demonstrate: 1. either that he raised the objection at trial or had good reason for not raising it and 2. the error was outcome determinative Rationale: Mistakes do happen. However there is a strong public policy against squandering tax dollars. Consequently unless the error actually affected the outcome, there is no remedy. Note: Exclusionary Rule violations will not be grounds for a habeas corpus defense unless the defendant did not have the opportunity to litigate this in the lower court.

Prison Regulations:

Prison officials may make any rule reasonably related to the safe and smooth operation of the prison. Rationale: It is obvious that administrators as well as prisoners are entitled to be safe. Prisoners receive due process prior to being incarcerated. At some point in time due process must be completed and a sentence actually executed.

Prisoners and the Right to Privacy:

Prisoners have no reasonable expectation of privacy.

Amendment V

Privilege against self-incrimination Right of due process in criminal cases

What is greater RAS or Probable Cause

Probable Cause is higher: Arrest can occur for with PC not RAS. The difference is the Quality of information RAS is less reliable PC is more reliable.

What is the standard to arrest a person?

Probable Cause.

What is a prerequisite for a valid Carrolle Search .

Probable cause .

What Constitutes a Probable Cause Determination:

Probable cause may be established by: 1. issuance of an arrest warrant 2. prior indictment 3. informal hearing

Probationer/Parolee Search

Probationer/Parolee: Have a 4th amendment waiver and can be searched by police as long as they know about the 4th amendment waiver (police can search vehicle, house, etc at any time for any reason.)

Prosecutors and Disclosure:

Prosecutors must turn over to the defense evidence that tends to indicate innocence of the defendant. Note: A prosecutor's client is the public. The public's interests are best promoted by obtaining a just result. A "just result" is not a conviction of an innocent person.

Edwards Test

Questioning has to stop when suspect invokes right to counsel. Prior to a subsequent interrogation a significant amount of time must have passed (cooling off period) and police must mirandize individual again. After 14 days, officers can reinitiate interrogation. Suspect may himself initiate exchanges or conversations after invoking right to counsel, but police may not for another 14 days.

What is interrogation?

Questioning or 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.

Terry

REASONABLE STOP AND FRISK - LIMITED WARRANTLESS SEARCHES WITH LESS THAN PROBABLE CAUSE made constitutionally permissible warrantless searches and seizures in limited circumstances. The Supreme Court ruled that in determining whether the Warrant and Probable Cause clauses of the Fourth Amendment apply to a given search and/or seizure, the "central inquiry" is the reasonableness of the government's activity under the circumstances; "reasonableness" is assessed by balancing the need to search or seize against the invasion the search or seizure entails. This is known as the "reasonableness balancing" test. - A STOP is justified by a "reasonable suspicion"(objective standard) that criminal activity may be afoot. - Stop occurs when a police officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen A FRISK is justified by a "reasonable suspicion" the persons with whom the officer is dealing may be armed and presently dangerous. The purpose of the Terry search is limited to the sole purpose of determining whether the suspect is armed. STOP AND FRISK - 9

RS and Tipsters

RS, like PC, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors--quality and quantity--are considered in the "totality of the circumstances--the whole picture," that must be taken into account when evaluating whether there is RS. One strong prong may make up for the other weak prong.

Right To Counsel In Quasi-Criminal Proceedings

RULE: Right to counsel attaches in: 1.) Sentencing Proceedings (Mempa) - D has a right to council at trial and also at sentencing. 2.) Probation hearings (Gagnon) - An indigent probationer or parolee has no unequivocal due process right to be represented by counsel at parole or probation revocation hearings. 3.) Juvenile DELIENQUENCY (Gault) - Where the minor has been charged with a crime, the minor has an absolute right to council (6th Amendment). Right to Counsel Does Not Attach In: 1.) Court Martial Proceedings - Under military system of justice, three levels of court marshals: 1.) Special - Right To Council 2.) General - Right to council 3.) Summary - No right to counsel 2.) Ordinary Parole/Probation Hearings-Right to counsel does not attach in ordinary parole/probation hearing. D entitled to minimal due process and some type of hearing. 3.) Juvenile DEPENDENCY- Not criminal issues, just child custody issues involving parents. Do not have a right to an attorney

U.S. v. Matlock

Real Ability to consent.

Consent to search can come (2) forms

Real and Apparent

What is needed to conduct a Terry STOP

Reasonable Articulable Suspicion RAS

What is the standard for Terry Stops ?

Reasonable Articulable Suspicion: Suspicion that criminal activity is afoot.

Title III of the Omnibus Control and Safe Streets Act

Regulates electronic eavesdropping; Warrant/PC/Necessity required to get wiretap. The application for a warrant must state with particularity the basis for PC, a description of the type of communications sought to be intercepted, the identity of the person (if known) whose communications are to be intercepted, whether other investigative techniques have been used, and the period of time during which interception will occur.

Officer's recourse if a citizen he summons to his aid refuses?

Report the person to the District or County Attorney

Student Searches, Probationers/Parolees

School authorities do not need a search warrant to search student belongings. If school authorities have reasonable suspicion to believe that contraband exists in student belongings, they may search without a search warrant. i. Policy - There is an expectation that students can go to school free from weapons and drugs.

To Support Search Warrant Based On Info From Informant (Gates Rule)

Requires analysis based on the "totality of the circumstances" including 3 relevant factors. Not one is determinative. (VBC) 1.) Veracity/Reliability Factor: Is informant reliable? 2.) Basis of Knowledge: What underlying facts does the informant provide from which the judge can conclude the informant has some firsthand knowledge of the targets activity and that this activity is related to crime? 3.) Corroboration: What does the police do to corroborate (validate) the information.? (ie. surveillance, records, checks, etc.)

Amendment IV

Requires warrant based on PC for a search or arrest

Amendment VI

Right to assistance of counsel

Roadblock check to locate witness approved

Roadblock stop to try to find witness, stopping everybody to ask question about a witness is allowed. (Lidster)

S/W Impacting Innocent 3rd Parties

S/W can be issued against an innocent third party if that third party has relevant information for a criminal prosecution (may be different if evidence is held by a doctor or attorney).

Chimel

SEARCH INCIDENT TO ARREST - EXCEPTION TO WARRANT REQUIREMENT AREA WITHIN IMMEDIATE CONTROL OF SUSPECT after lawful arrest, officer searches entire house. Court says the only area searchable without a warrant is that "within suspect's immediate control"—construing that phrase to mean that area from which he might gain possession of a weapon or destructible evidence. **NOTE: Gant might modify this case. SEARCHES - EXCEPTION - 12

Buie

SEARCH INCIDENT TO ARREST - PROTECTIVE SWEEP police can conduct a "protective sweep," which is a quick and limited search of a premises, for people, incident to arrest and conducted to protect the safety of police officers or others. Only need reasonable suspicion. Premises equivalent of Terry In this case in suspect's home to look for ∆'s accomplice. Police did protective sweep and didn't find accomplice, but found clothes that tied him to robbery. Court upheld the protective sweep. However, police can only look for what they have a right to look for, in the place where it could possibly be. Can only look for a person where a person could possibly be. SEARCHES - EXCEPTION - 12

Gants

SEARCH INCIDENT TO ARREST IN VEHICLES Police can search a vehicle incident to arrest if: o 1. An arrestee is within reaching distance of the vehicle; OR o 2. If it is reasonable to believe the vehicle contains evidence of the offense of arrest. o Timing There must be a danger that the arrestee has access to the car at the time of the search. • This is different than Chimmel where courts have usually held at the time of arrest. SEARCHES - 13

Long

SEARCHES FOR POLICE PROTECTION - GRAB AREA Terry permits a limited examination of an area from which a person, who police reasonably believe is dangerous, might gain control of a weapon. Long permits a protective search beyond the suspect's person. Searching passenger of compartment of car ok because even if suspect can't reach weapon during stop, the suspect will be permitted to reenter his automobile and will then have access to any weapons inside. Therefore, this holding depend on the suspect being able to get back in the car. NEED TO ASK IF SUSPECT WILL BE ABLE TO GET BACK IN CAR, OR IF HE IS IN POLICE CUSTODY. MISC. TERRY-RELATED ISSUES -11

Royer

SEIZURE Court applies the "not free to leave" test and determines that where officers identified themselves as narcotics agents, told suspect he was suspected of transporting narcotics, and asked him to accompany them to a police room while retaining his ID and tickets without indicating that the suspect was free to leave, the suspect was effectively seized for 4th amendment purposes. o Essentially would have to leave airport without ID or luggage, and Court saying this is too much. Can't expect person to do this. STOP V. ENCOUNTER - 8

Quon

SPECIAL NEEDS SEARCHES - SUSPICIONLESS SEARCH -TEXT MESSAGES Text messageing search of public employee as special need o audit of a police officer's text messages was reasonable because it was motivated by a legitimate work- related purpose and was not excessive in scope. SPECIAL NEEDS SEARCHES - 17

Rakas

STANDING standing issue synonymous with Katz issue- whether a person had a legitimate expectation of privacy. o Passengers in vehicle do not ordinarily have standing to suppress items in automobile unless there's some particular reason to believe they do. In Rakas, passengers seeking to suppress do not own vehicle. Court says no legitimate expectation of privacy in passenger compartment of vehicle just by being in it. STANDING - 22

Safety Inspections

Safety inspectors can randomly inspect as long as it is part of their regulatory scheme. (Health inspector, building inspector)

Conspiracy and Org. Crim. Activity

Same as the most serious offense that is the object of the conspiracy or the organized criminal activity

Attempt and Solicitation

Same as the offense attempt or the felony solicited

Officers of an adjoining state

Same powers, duties, and immunities as Texas Peace Officer when in custody of inmate and transporting the inmate to and from adjoining state

School Strip Searches

School authorities cannot strip search students without a search warrant.

Description of Place To Be Searched

Search warrant description is enough if the description is such that the officer with a search warrant, can with reasonable effort ascertain and identify the place intended.

Warrantless Searches and Airline Passengers:

Searches of airline passengers before boarding do not require a warrant. Rationale: It would be cost prohibitive to get a warrant for every potential passenger. It would be impossible from a standpoint of time to get warrants for every potential passenger. The public would be endangered if passengers were not subject to searches (i.e. hijackers).

7 years

Securing execution of document by deception / False Statement to obtain property or credit / Credit Card or Debit Card Abuse / Money laundering / Fraudulent use or possession of identifying information / Bigamy , Adult Victim

Serious Offenses:

Serious offenses are those which carry a potential sentence of more than six months excluding juvenile proceedings.

Post Probable Cause Appearance:

Soon after probable cause is established the defendant is brought before a magistrate who will explain his rights, appoint counsel if necessary, and consider bail. Note: Speed and timing are significant. There is a strong public policy against holding a person for any length of time without a showing of probable cause, or when bail is appropriate. Consequently a probable cause hearing may frequently be incorporated into the appearance before the magistrate.

Warrantless Searches and Uninvited Listeners:

Speakers who do not make a good faith effort to protect their conversations cannot object to their admission into evidence by one who overhears. Example: Conversations made from an outdoor pole phone would be admissible because passersby can easily overhear them (i.e., no reasonable expectation of privacy). However, a conversation made from an enclosed phone booth, that was overheard by an individual using extraordinary means, would not be admissible.

Reasonable Suspicion

Specific, articulable facts known to the officer and logical inferences from those facts based on the officers training and experience, that support the conclusion that criminal activity is taking place or is about to occur.

20 years from 18th Birthday Limitations

Specified offenses against child victim under 17 including sexual performances by a child

Exceptions to Miranda

Statements used for impeachment purposes Statements obtained in emergency situations Statements mad during time of booking in response to routine questions

Post Completion of Sentence, Punishment:

States may deprive felons of the right to vote and hold office even after their sentences have been fully served. Rationale: Theoretically once one has been convicted of a felony, their credibility has been impeached.

Statutes Regarding Loitering:

Statutes aimed at preventing loitering, that require individuals to produce "credible and reliable" identification, are generally considered unconstitutionally vague, because it is not clear what exactly is "credible and reliable identification." Situations to look out for: While statutes directed at loitering have been struck down, statutes aimed at curbing "cruising" with cars, have been upheld, as preventing traffic congestion.

US v. Ross (vehicle exception )?

Supported by probable cause a police officer can search a vehicle as though he had a warrant from a magistrate.

The Exclusionary Rule and Good Faith Reliance:

Suppressing evidence obtained in good faith would not achieve the goal of preventing law enforcement personnel from violating constitutional rights. Rationale: The whole concept behind the Exclusionary Rule is to prevent law enforcement personnel from violating constitutional rights. If they are acting in good faith, and the evidence is suppressed, the judiciary is losing probative information and gaining nothing.

From a terry stop what is needed for a police officer to frisk.

Suspicion of danger. officer need not be that the individual be armed the issue iw whether a reasoning prudent man in the circumstances would be warranted in the belief that his safety or that of others in in danger .

Randolph

THIRD PARTY CONSENT WHEN D IS PRESENT AND OBJECTING a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to the person who refuses. In this case, wife said police could search for drug-related items; husband doesn't consent to search. Warrantless search unreasonable as to husband. Police can run around this rule if they wait for a time when the non-consenting person is gone. Rule operates only if objecting co-tenant is at home asserting the right. HOWEVER, being at home is not enough if the person is not at the front door. CONSENT SEARCHES - 21

Define the term the critical stages:

THe person physically in front of state, is subject vulnerable to the power, subject to the governments Machinery. there for the suspect needs the presence of a lawyer if they cannot afford a lawyer one will be provided to the.

if the stop and Frisk gives rise to probable cause what can the police do.

THe police can now arrest.

Arvizu

TOTALITY OF THE CIRCUMSTANCES - REASONABLE SUSPICION *- When reviewing reasonable suspicion determination, court will look at totality of the circumstances of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. o Family in minivan near US/Mexico border. Checkpoint set up and magnetic sensors also used- around the time the shift change occurred. Officer follows vehicle. Driver doesn't look at officer as it passes officer, children have legs elevated; wave for 4 to 5 minutes. Driver exits at last exit before checkpoint. o Based on officer's firsthand observation and experience, officer makes a specialized, objective determination. WHAT CONSTITUTES REASONABLE SUSPICION? - 10

What case Established Terry Stops

Terry v. Ohio

Portions of the 4th Amendment Applied to States:

The "Exclusionary Rule" and "The Prohibition Against Unreasonable Searches and Seizures," have been applied to the states.

3) Can detainee withhold identity from police?

The 4th amendment does not require a suspect to provide identification but a state law that imposes such a requirement does not violate the 4th amendment. (Hibel)

Right To Council of One's Choice

The 6th amendment right to council means that a D can hire any lawyer of his choice. → This right does NOT extend to D's who require counsel to be appointed for them nor may a D insist on representation by counsel who is not a member of the bar (Gonzalez/Lopez)

The Bill of Rights:

The Bill of Rights in the Constitution originally applied only to action by the federal government. The Bill of Rights are the 1st - 10th Amendments to the Constitution.

Define "Interest Holder"

The Bona Fide Holder of a perfected lien or a perfected security interest in property

"Cruel and Unusual Punishment," and the Death Penalty:

The Death Penalty may not be made a mandatory sentence for a crime. Note: A jury must be given the discretion to consider aggravating, as well as mitigating, circumstances, when the death penalty is in issue.

The Exclusionary Rule

The ER is a method by which the 4th amendment is enforced. ER excludes the use of evidence obtained in violation of the 4th amendment (unreasonable searches and seizures) to prove guilt of the accused.

Exclusionary Rule Applies To Government Conduct Only

The Exclusionary Rule applies to Gov't officials and its agents, not private citizens (unless situation where citizen is working with police, then ER could apply).

Exceptions to the Exclusionary Rule:

The Exclusionary Rule does not apply in the following situations: 1. grand juries 2. Impeachment purposes 3. violations of internal agency rules 4. civil proceedings 5. good faith reliance 6. harmless error

Defendants and the Exclusionary Rule:

The Exclusionary Rule may not prevent a defendant from presenting probative evidence. Rationale: Remember the reasoning behind the Exclusionary Rule was to discourage overzealous police officers from violating a citizen's rights. Preventing a defendant from introducing this evidence would not promote this objective. It should also be remembered that a criminal case is not conducted with the same adversariness of civil actions. The plaintiff in a criminal case is the "public," and the public's objective is justice, not necessarily a conviction.

The Exclusionary Rule and Violations of Internal Agency Rules:

The Exclusionary Rule's purpose is to protect constitutionally guaranteed rights, and incidental agency procedures do not fit this category. Rationale: Constitutional rights are not only fundamental, but are guaranteed. Agency procedures are discretionary with the agency, and are formulated by the agency for it's convenience.

Defendant's Burden and Tainted Identifications:

The burden is on the defendant to establish that the pre-trial identification was unreasonably prejudicial and unreliable.

REOP & Freedom of Movement

The constitution not only protects people and their REOP, it also protects their freedom of movement. Brief detention (not long detention) of property is permissible. (Place)

Plea Bargaining:

The defendant and the prosecution may enter into a binding contract whereby the defendant performs an act in exchange for the prosecution charging him with a lesser crime. Situations to look out for: • While the parties are bound by a plea bargain the judge is not. • Prosecutors can threaten a harsher charge if the bargain is not accepted. • If either party fails to perform, the judgment may be vacated.

Confessions and the "Proper Means:"

The following should be considered in determining whether or not a confession was obtained under the proper means: 1. Police action 2. Miranda warnings 3. Right to counsel 4. Waiver 5. Grand jury 6. Public safety 7. Impeachment 8. Confessions made subsequent to invalid confessions

The Exclusionary Rule and Grand Juries:

The function of a grand jury is to gather information, not to Page 38 impose penalties. Consequently the defendant is not being "punished" as a result of the illegally obtained evidence. Consequently, the Exclusionary Rule does not apply to grand jury investigations. Rationale: There is a strong public policy and public interest in granting grand juries access to relevant information (unless the evidence is the result of an illegal wiretap).

Checkpoint Rule

The further away from the border, the more individualized suspicion needed. Generally, the most checkpoints can do is slow down the cars and ask a few questions and let them go. To search the cars at checkpoint, you have to have reasonable suspicion to take them over to secondary inspection area.(Almedia-Sanchez)

The Test for Admissibility of a Potentially Tainted, In-Court Identification:

The in-court identification must be based on factors other than the prejudicial identification

Right To Assistance of Expert Witnesses

The indigent D has the right to expert services to counteract the prosecutor's experts at the state's expense. (Ake)

Exterior of Baggage

The interior of luggage is protected by the 4th amendment. The exterior of luggage is not.

Neutral and Detached Magistrates:

The issuing magistrate cannot be one involved with law enforcement. Situations to look out for: An Attorney General, or one who is involved in the search, is not neutral and detached.

Border Rule

The mere crossing of the boarder (by a person or vehicle) is sufficient basis alone for conducting a random search of the person or vehicle. (Ramsey)

Fruity of The Poisonous Tree

The person who is the primary victim of the initial police illegality can suppress all evidence as a result of that illegality. That is the fruit of the poisonous tree. (Wong Sun) i. Example - Toys rights violated (first) and told cops he got drugs from Yee. Yee's rights violated (second) and he told cops got drugs from Wong Sun. Wong Sun thinks he cant be prosecuted had police not violated both Toy and Yees rights. But ct said Wong had no standing. BUT, Toy can suppress all evidence b/c he was the original person to have his rights violated, he does have standing

Bail Considerations:

The purpose of bail is not to punish, but only to insure that an individual will present himself for trial. In determining bail issues, courts will look at the totality of the circumstances. Things to consider are the defendants prior actions when granted bail, the severity of the crime, the potential sentence, and whether or not the defendant poses a threat to society. Note: Generally, unless the defendant posses a threat to society or is being charged with a crime that carries a potential for the death penalty, bail will be granted.

Schneckloth v. Bustamonte

The question whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the TOTALITY OF THE CIRCUMSTANCES. While the suspect's knowledge of the right to refuse is a fact to be taken into account, it is not a prerequisite to establishing a voluntary consent.

Warrantless Searches and Investigatory Detentions: Situations to look out for:

The rationale behind this rule is protection of the officer. Consequently an officer may only reach into the detainee's clothes if she feels something that could be a weapon. For example, a plastic bag filled with marijuana would not feel like a weapon so if an officer felt it and then reached into a pocket and pulled it out, it would be inadmissible.

4th Amendment

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Attachment of The Right To Council

The right to council (6th amendment) first attaches when a person has been formally brought into court for the first time or he has been indicted by a grand jury. (Rothgery/Kirby) --> Investigations/solitary confinement/in bowels of prison over the weekend= NO. Right To Counsel does not attach at this moment.

3.) Scope of Consent (What The Police Can/Cannot Search)

The scope of consent is governed by what is sought. [not by the suspects intent or the officer's perception but instead by what the typical reasonable person would have understood the verbal exchange to mean between the officer and the suspect.] (Jimeno)

Subjective Intent of The Officer Immaterial

The subjective intent of the officer as to why he is stopping someone is immaterial as long as there is an objectively reasonable violation (ie broken tail light, license plate partially obscured, speeding) that represents the basis for the detention. (Whren)

"Reasonable Suspicion:" The Totality of Circumstances Test

The whole picture must be taken into account - the police officer must have a particularized and objective basis for suspecting the particular person stopped for criminal activity, taking into account the officers experience

10 years

Theft by Public Servant / Forgery / Arson / 1st Degree injury to elderly or disabled individual / Sexual Assaults except certain child victims or any other person whose identity is readily ascertained (no limitations)

Warrentless Searches: Consent

There are four issues that can come up with a consent search. Use the acronym, VAST. V = Voluntary (Was the consent voluntary?) (Schneckloth) A = Apparent Authority (Rodriguez) S = Scope (What was the scope of consent?) (Jimeno) T = Tainted (Was the consent obtained in an unlawful detainment? (Royer

Drivers Liscense/Registration Check

There is a special need for traffic control or traffic safety, no individual suspicion is required to check for driver liscenses and registration.

Mandatory Drug Testing of Employees

There is a special need to require certain employees to submit to mandatory drug testing for the safety of potential clients and customers.

Purpose Behind Exclusionary Rule:

There is a strong public policy behind protecting individual rights, and the best way to ensure that these rights are protected is to remove any "benefit" that may be obtained by violating them.

Due Process and Prison Discipline:

There is no right to a hearing unless a prisoner loses "good time" or is placed in solitary confinement. Rationale: A prisoner has already had his due process at trial and been sentenced. However if his deprivation of liberty is being extended, this constitutes an additional "taking" requiring notice and an opportunity to be heard. If a prisoner is being confined to solitary, he is having a restraint placed on his liberty exceeding that which was the result of his trial. Consequently, since it involves a further taking, this would entitle the prisoner to further due process (i.e., notice and an opportunity to be heard).

Probation and Parole Revocation and Right to Counsel:

There is no right to counsel at a probation or parole revocation hearing unless: 1. An already imposed sentence is made more severe, 2. the defendant makes a good faith argument that he did not violate his parole, or 3. the issues involved are too complex for a non-lawyer to advance. Rationale: Several positions must be balanced. The general policy is that the parolee has already been given due process at trial. However, if a greater sentence is imposed, then the parolee is being subjected to a greater restraint on his liberty and consequently entitled to due process. Lastly, the purpose behind any hearing is to reach a fair determination, and where certain circumstances exist, it would be "patently unfair" to deprive one of the assistance of council. Note: There is no constitutional right to parole. Consequently, due process is not an issue unless a statutory right is established. However, fairness dictates that a parole board may not abuse its discretion in granting or withholding parole.

Number of Jurors:

There must be at least six jurors on a jury. Note: Serious crimes generally are tried by a jury of twelve.

Description of Things To Be Seized

Things to be seized must be described accurately in a search warrant. However, usually a provision for dominion and control evidence (proof who lives at the residence) is provided in the search warrant which allows search to expand in scope. This is important to establish who lives there and it greatly expands the area of the house police can search.

10 years from 18th Birthday Limitations

Trafficking a persons, child victim forced labor or services, i.e. non-sexual offenses Injury to a child Compelling Prostitutions, child victim younger than 18 Bigamy, if child victim not legal spouse is under 18 at time of offense

What case allows police to search a car a suspect just got out?

Thorton v. US: So long as a person is a recent occupant of a vehicle officers may search that vehicle incident to arrest.

Oregon v. Elstad

Though Miranda requires that an unwarned admission be suppressed, any subsequent warned admission should turn on whether it is knowingly and voluntarily made. However, in Missouri v. Seibert, if an interrogator uses a deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, post-warning statements that are related to the substance of the pre-warning statements may be excluded absent, specific, curative steps.

The Bill of Rights and The 14th Amendment:

Through the 14th Amendment, portions of the Bill of Rights have been applied to the states also. Rationale: Portions of The Bill of Rights are fundamental to our concept of liberty and due process.

What is the difference between arrest and a stop.

Time. Arrest is prolonged custody.

Purpose of Subpoena

To bring a witness to testify on a specified day before a court, an examining court; at a coroner's inquest; before a grand jury at a habeas corpus hearing; or in any other proceeding in which the persons testimony may be required in accordance with the code

Current Approach To The Rule on "Standing"

To claim 4th amendment violation and challenge a search, you have to be the primary and initial victim of the police illegality. You have to establish a reasonable expectation of privacy in the object or area searched to assert a 4th amendment violation claim. i. Example: If cop illegally search Mike's briefcase and takes drugs out but cops think they belong to you, DA prosecutes you, you cannot raise a 4th Amendment issue with respect to that seizure because you were not the primary victim and have no primary interest in the briefcase. ii. Issue Trigger - When there is an illegal search against defendant A, drugs are found in A's car, the drugs belong to B and are used to incriminate B.

Purpose of a Subpoena Duces Tecum

To direct the witness to bring evidence with him and produce it in court

Standing and a Reasonable Expectation of Privacy:

To raise a 4th Amendment claim regarding a search, one must either own the area searched or have a right to possess it. Situations to look out for: If evidence is found in another's home that damages a third party, the third party has no standing to object.

Public Trials:

Trials are open to the public unless fairness dictates otherwise. Note: The judge is the only one who has the authority to determine whether or not having a trial open to the public will compromise its fairness. Since this is not only a right of the parties, but also of the public, a trial may be open or closed to the public regardless of whether or not the parties feel it should or should not be.

To Support Search Warrant Based On Info From Informant (Aguilar Rule)

Two "Prong" Test for testing P/C based on info from an informant (RV+B). 1. Reliability of informant and Veracity-What is known about the informant himself (credible, trustworthy, and reliable)—track record? + 2. Basis of Knowledge-how much info did the informant give that creates logical happening.

How many Grand Jury sections are there?

Two. The Grand Jury Original and the Grand Jury.

JL

UNCORROBORATED ANONYMOUS TIP anonymous caller said young black male at bus stop, wearing plaid shirt, had a gun. An officer seized a gun from J.L.'s pocket. Held unconstitutional. No showing that tipster had knowledge of concealed criminal activity, so officer's had no reasonable suspicion to stop and frisk J.L. An anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk. *White - tip that demonstrated inside informatoin was significantly corroborated WHAT CONSTITUTES REASONABLE SUSPICION - 10

What case discusses the good faith doctrine ?

US v. Leon

What case establishes encounter

US. v. Burrell

Kyllo

USE OF TECHNOLOGY TO ENHANCE INSPECTION - THERMAL DETECTION DEVICES = SEARCH Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area" constitutes a search - at least where the technology in question ins not in general public use. 4TH AMEND SEARCHES - 2

Use of Deadly Force To Effectuate Arrest

Under certain circumstances, police may use deadly force , if there is a threat. (ie can shoot a fleeing felon).

What case establishes search incident to arrest.

United States v. Robinson

What cases establish Vehicle Searches W/O Warrant for PC.

United States v. Ross:

The Exclusionary Rule and Civil Proceedings:

Unless the proceeding involves punishment, illegally obtained evidence may be used in a civil proceeding. Situations to look out for: Where property is being forfeited because of its use in the commission of a crime (i.e., vehicle used in drug smuggling), the Exclusionary Rule applies. Rationale: Keep in mind, the primary purpose behind the Exclusionary Rule is to prevent overzealous law enforcement personnel from violating constitutional rights. Law enforcement personnel are not generally "emotionally" involved in civil matters. Also keep in mind that justice is served by admitting probative evidence, and that it should not be excluded without good reason.

Maryland v. Buie

When the police arrest a person, they may conduct a protective sweep of the premises if they have REASONABLE BELIEF, BASED ON SPECIFIC AND ARTICULABLE FACTS, that a person might be there who poses a threat to them. May only extend to places where a person could be found.

Automobile Stops:

Unless they have a reasonable belief that a law was violated by the driver of an automobile, the police may not stop an automobile. Situations to look out for: • Police may not stop a vehicle just to check license and registration. • At a designated roadblock, police may check cars without a reasonable suspicion as long as there is an articulable scheme followed (i.e., every 10th car is stopped, regardless of its appearance). • Random boarding of boats "in a channel leading to the open sea," has been upheld regardless of the reason or lack of a reason. Rationale: Boats are treated differently for two reasons. First of all, it is relatively easy to leave the territorial waters of the United States. Secondly, it is easy to sink a boat in deep water where evidence would be inaccessible. Note: A "good argument" that has proven unsuccessful is that an individual would seem to have a greater expectation of privacy in a boat than a car.

Miranda

VOLUNTARINESS OF CONFESSIONS warnings are required when suspect is in custody and being interrogated. o Custodial interrogation- questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. o Miranda warning requires: 1. Suspect has right to remain silent; 2. Any statement suspect makes may be used as evidence against him; 3. Suspect has a right to the presence of an attorney 4. If suspect cannot afford an attorney, one will be appointed. 5. [Right to assert these rights at anytime]? o D can waive the rights, provided it's done voluntarily, knowingly, and intelligently. Government has to prove the waiver by a preponderance of the evidence. Police have the burden of showing waiver of rights—they have a "heavy burden" to demonstrate that the D KNOWGINLY AND INTELLIGENTLY waived his rights. MIRANDA RULE - 26

Exigent Circumstances

Very narrowly applied and usually involves and emergency/hot pursuit in which cops are chasing somebody who committed a crime and the person seeks refuge into a house. Exigent - Emergency

Patane

Violation of Miranda does not result in suppression of physical evidence- even in prosecution's case-in-chief. o This is because the scope of the self-incrimination clause is limited to testimonial evidence. EXCEPTION TO THE MIRANDA - 28

Moran

WAIVER OF MIRANDA RIGHTS two requirements must be met before a suspect can be found to have waived his Miranda rights if the waiver is: 1. Voluntary (product of free and deliberate choice rather than intimidation, coercion, or deception). • Once police have the waiver they can be deceptive, but can't be deceptive in GETTING the waiver. 2. Made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Government has the burden of proving that (i) suspect got proper Miranda warnings WAIVER OF RIGHTS - 27

Katz

WHAT CONSTITUTES A SEARCH A 4th Amdnemdnet search occurs when the gov't violates a SUBJECTIVE EXPECTATION OF PRIVACY that SOCIETY RECOGNIZES AS REASONABLE 2 prong test: 1) a person must have an actual (subjective expectation of privacy; AND 2) the expectation must be one that socieyt is prepared to recognize as "reasonable" 4TH AMENDMENT SEARCHES - 1

JDB

WHAT CONSTITUTES IN CUSTODY - was there a formal arrest or restraint on freedom of movement associated with formal arrest. child's age 'would have affected how a reasonable person' in the suspect's position 'would perceive his or her freedom to leave. age should be considered in the totality of the circumstances in determining whether a "reasonable person in the suspect's position would perceive his or her freedom to leave." CUSTODY - 27

Innis

WHAT CONSTITUTES INTERROGATION? - express questioning or its FUNCTIONAL EQUIVALENT officers talking to each other about danger of gun near handicapped kids' school, and suspect tells officer to turn around so he can show them where gun is. Statement admissible because suspect had been given Miranda warnings and what the officer said was not meant to elicit an incriminating response from the suspect. o The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. Functional equivalent = any words or actions on part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. INTERROGATION - 26

Arrests and Warrants:

Warrants are not required for arrests in public places. Warrants are required for arrests in one's home unless there are exigent circumstances. Note: While evidence obtained as a result of an unlawful arrest is not admissible, the only remedy for an unlawful arrest is a civil suit. Note: Anyone may be arrested anywhere if the arrest is conducted pursuant to a valid warrant.

Warrantless Searches and Borders:

Warrants are not required for searches at national borders. Situations to look out for: • The above rule applies not only to the precise boundary line itself, but also to it's equivalent (i.e., a checkpoint, airport, bus station, etc., when passengers enter or leave the country.) • Opening of mail or packages at boundary to search for contraband is permissible. However, there must be a reasonable suspicion, and mail may not be read. • Border patrols may stop a vehicle to question those within if they have reasonable suspicion that there are illegal aliens within. The fact that passengers appear to be of Mexican ancestry does not give rise to a "reasonable suspicion." Searches however are still subject to the 4th Amendment.

Requirements for a Warrant:

Warrants must be 1) issued by a neutral and detached magistrate, 2) based on probable cause, 3) specific, 4) executed by police, 5) executed after a proper announcement (unless exigency), and 6) executed within a reasonable time

Executing Warrants, and a Reasonable Time:

Warrants must be executed within a reasonable time after they are issued. Rationale: Since a search must be based on probable cause, it must be executed in a timely fashion, or probable cause no longer exists.

Holding of Tery v. Ohio

We hold that where police officer observe unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing with may be armed and present dangerous.

What is the Sock Rule?

What were you allowed to search for in the first place .The thing that is being looked for has to be able to fit in what the police are searching.

Physical Evidence of a Defendant and the Right to an Attorney:

When Police are obtaining physical evidence from a defendant, there is no right to counsel. Examples: Physical evidence would be things like, samples of one's voice, blood, fingerprints, etc. Rationale: The purpose behind having an attorney present when a defendant is being identified is to prevent him being presented to witnesses in such a way that their opinion will be prejudiced by the form of the presentation. Physical evidence does not give different impressions. Example of prejudicial circumstances: The assailant was over 6"2" and weighed over 250 lbs. The defendant who is 6"3" and weighs 260 lbs is placed in a line up where the other members are all under 5"8" and under 180 lbs.

Is car passenger on traffic stop "seized?"

When a motorist is stopped for a traffic violation by a police officer, everybody in the car is seized and is not free to leave. (Brendlin)

Monitoring Movements of Arrested Person

When a person is arrested, officer has a right to monitor movements of the arrested person.

Civil Contempt and Jury Trials:

When a witness is sentenced to jail until he testifies, he may spend more than six months in jail without a jury trial. Rationale: Under these circumstances the witness has "the keys to the cell" in his own pocket. In other words, he has the power to release himself.

Miranda v. Arizona

When an individual is (1) TAKEN INTO CUSTODY or otherwise deprived of his freedom by the authorities in any significant way and is (2) INTERROGATED, OR SUBJECTED TO QUESTIONING, procedural safeguards must be employed to protect the individual's right against self-incrimination. He must be warned prior to questioning: 1. He has the right to remain silent 2. Anything he says can be used against him in a court of law. 3. He has the right to an attorney. 4. If he cannot afford an attorney, one will be appointed to him prior to any questioning if he so desires.

Confessions and Waivers:

When an individual who has capacity and appreciates what she is doing, voluntarily waives her rights and makes a confession, it will be admissible. Rationale: A voluntary confession by one with capacity is probative evidence and should be admitted as long as there is no police misconduct.

Arrest of All Occupants Where Drugs Are Found In Vehicle

When drugs are secreted in some part of the car that is accessible to all of the occupants, the cops have probable cause to arrest everybody within the vehicle. (Only applies to cars/NOT homes). (Pringle) i. If police have information to implicate only one person in car, he has no p/c to arrest the other occupants.

Chimel v. Calif.

When officers arrest a person in a residence, they may search his person as well as the area within his immediate control or the "grab area."

When is a person entitled to a jury trial?

When one charge the person is facing more than (6) months. if the charges are multiple one of them have to be greater than (6) months

Detention Frisk

When one is frisked for weapons during detention, the frisk is limited to hard objects.

Post Trial Criminal Contempt and the Right to a Jury:

When one is sentenced, post trial, to more than six months in jail for purposes of punishment, a jury is required.

What is the knock and Announce Rule

When police arrive to execute a warrant the announce

Jailhouse/Hospital Searches of Person Lawfully In Custody

When someone is lawfully arrested and a full exploratory search is done on the initial arrest, a second search at the jail ("booking search") is permissible to keep contraband and weapons out of the jail AND to protect against false accusations of theft against the jailer. (Lafayette)

Define "Examining Trail" (Examining Court)

When the magistrate sits for the purpose of inquiring into a criminal accusation against any person

Warrantless Searches Incident to Lawful Arrest:

Whenever police make an arrest, they may search the arrestee and areas within his reach without probable cause. Rationale: First of all, there are considerations regarding the safety of the officer. Secondly, there are considerations for the safety of the arrestee who might try to ingest contraband on his person. Third, there is no reasonable expectation of privacy once one has been arrested.

Tracked Container Rule

Where the cops have probable cause to believe that a closed container contains contraband and winds up in a automobile, the automobile exception trumps the protection of the container (cops can search the container without a warrant on the spot.). i. Limitation -The search is limited only to the container and the rest of the vehicle cannot be searched (Ross). ii. Search autorhity now includes "tracked" containers winding up in auto, but search is limited to securing the containers itself, and only of area where container is located (ie. container in trunk, cop can only open trunk and then open container) (Acevedo)

Use of Deadly Force To Effectuate Arrest Where Defendant Brings On Reaction Of Police Through His Own Conduct

Where the defendant brings on the reaction of the police through his own conduct, police may use deadly force

What is the exclusionary rule

Whether granting establishment of the primary illegality the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.

What does the plain View Doctrine Turn On?

Whether the officer has a legal right to be where they where.

Investigatory Detentions vs. Arrest:

While one is not free to leave when being detained, if the detention is brief and specific, it is likely to be considered a detention rather than an arrest, and a warrant is not necessary. Page 41 Note: Length of time and movement to another area may change a "detention" to an "arrest."

Appeals:

While the Constitution does not guarantee a right to an appeal, some states guarantee an Page 55 automatic right to appeal in certain situations. Note: W hen the death penalty is imposed, some states provide an automatic right to appeal.

Waivers must be made?

Willingly and knowingly.

The Exclusionary Rule and Impeachment:

Witness credibility is always in issue, and an illegally obtained voluntary confession may be introduced to impeach a witness" testimony. Situations to look out for: Involuntary confessions are never admissible. First of all, there is a strong public policy against encouraging law enforcement officials to coerce confessions out of suspects. Secondly, a coerced confession is, by it's very nature, unreliable. Note: It should be noted that the court has wide discretion to admit or to suppress evidence. Considerations of probative value versus prejudicial effect must always be weighed.

Method to challenge the denial of bail or excessive bail

Writ of Habeas Corpus

Define "information"

Written statement filed and presented by a district or county attorney charging the Defendant with an offense which by law may be prosecuted.

Define "indictment"

Written statement of a GRAND JURY accusing a person of some act or omission, which by law is declared an offense.

Is a prisoner incarcerated for another offense is he in custody for the purposes of being questioned for another offense ?

YES he is in jail in custody for any interrogation.

Is warrant forum shopping allowed?

Yes

Does Miranda have to be given at the beginning of the interrogation?

Yes !

Use of Illegally Seized Evidence For Impeachment

You can impeach a defendant with previously suppressed evidence in another case. i. Example - The story is that defendant had narcotics thrown out because it was an illegal search. In the future, defendant did it again and in trial, he testified that he never had narcs in possession. Prosecutors can use the illegally seized, suppressed evidence to impeach the defendant's testimony.

When a person is arrested, he/she shall be taken before ______

a Magistrate without unnecessary delay

prima facie case

a case that is strong enough to prevail if its not contradicted by the opposing party

prima facie cases

a case that is strong enough to prevail if its not contradicted by the opposing party.

challenge for cause

a challenge for the dismissal of a juror based on causes specified by law

complaint

a change made before a proper law enforcement or judicial officer alleging the commisson of a criminal offense.

felony

a crime usually punishable by death or imprisonment in a prison for more than one year

misdemeanor

a crime usually punishable with jail time or othe non prison penalties.

information

a criminal charge filed by the prosecutor without the intervention of a grand jury

venire

a group of prospective jurors assembled according to procedures established by law.

preliminary hearing

a healing held before a judge or magistrate within a resonably short time after arrest

hung jury

a jury that cannot agree to convict or acquit an accused.

grand jury

a jury that usually determines whether a person should be charged with an offense.

motion for a directed verdict of acquittal

a motion filed by the defense seeking acquittal of the accused before the prosecution failed to introduce sufficient evidence to convict the defendant.

motion for mistrial

a motion filed seeking for the trial to be declared in valid before it is completed alleging improper conduct.

nolle prosequi motion

a motion seeking dismissal of charges

alford plea

a plea in which the defendant claims innocence yet pleads guilty for other reasos

nolo contendere plea

a plea of "no contest"

voire dire

a process in which prospective jurors are questioned to determine whether there are grounds for challenge.

bench warrant

a process issued by the court for the attachement or arrest of a person.

motion

a request made orally or in in writing , asking the judge for a legal ruiling on a something related to a case

bifurcated procedure

a trial procedure where the guilt innocence stage and the sentencing stage are seperate.

capias

a warrant issued by the court for an officer to take a defendant into custody

habea corpus

a writ direceted to a person detaining another commanding that person to produce the body of a person who is imprisoned or detained in court and explain why detention should be continued.

summons

a writ directed to the sheriff or other officer requiring the officer to notify a person that he or she must appear in court on a day named and answer the complaint.

indictment

a written accusation of a crime filed by grand jury

bill of indictment

a written accusation of a crime submitted to the grand jury by the prosecutor.

rebuttal evidence

evidence presented to destroy the credibillity of witnesses or any evidence presented by the other side in a case.

Ways To Expand The Exclusionary Rule

a. Consent (Royer), if consent is obtained during illegal detention or arrest, it is thrown out b. Confessions (Brown v. Illinois), if confession is derived from illegal arrest/detention, it is thrown out. i. Miranda note: Miranda warnings and waiver does not CURE unlawful arrest and detention so statements must be suppressed. c. Further observation of getting more evidence derived from illegal arrest/detention, it is thrown out d. Illegal home entry leading to evidence in plain view (Payton), evidence is suppressed e. Illegal Seizure of evidence leading to arrest is suppressed

Two Limitations To Wong Sun

a. Crews - The identification of defendant by a witness is allowed and not excluded by Wong sun rule even if police learn of defendants identity through an illegal search. b. Ceccolini - Identification of a witness derived from illegally obtained evidence is an exception to wong sun (wong sun will not apply).

Ways To Limit Exclusionary Rule

a. Good Faith exception (Leon) b. Lack of Standing (Rakas) c. Independent Source (Murray/Segura) d. Inevitable Discovery (Williams II -Christian burial case) e. Impeachment

Compliance With "Knock-Notice"

a. Knock notice is part of the 4th amendment even though its not explicitly stated. Officers must: 1) Knock 2) State who they are 3) There purpose ("here to serve a search warrant") 4) Demand entry b. Knock Notice Purpose - To avoid confrontations between the police and the homeowners

Ordering Out Driver/Passanger

a. Mimms - Anytime police make a lawful detention of motorist they can order driver out of car. b. Wilson - Extended Mimms to allow police to order passenger out of the

Independent Source

a. Segura - The ultimate seizure of evidence lawfully obtained by independent source is not excluded and illegal conduct by the police is overlooked. i. Example: if police conduct an illegal search, but do not derive any evid of that search- but independently derive p/c for s/w to go back to house to search- ct considers the s/w independent and is okay. b. Murray - If the police conduct an illegal search, they may get a search warrant based on other independent evidence and not have the evidence found by the unlawful search included within the warrant..

Inevitable Discovery

a. Williams II - Inevitable discovery is always based on a hypothetical. "But for the illegal conduct, the evidence would have been found anyways." i. Muir Note - The difference between inevitable discovery and independent source is that evidence was acquired through legal means in independent source and not for inevitable discovery which is based on a hypothetical that it would have been found legally anyways. ii. Example: Police stop and illegally search the D's body- stopped person for speeding have no reason to believe he has weapons. On this illegal search the cops find drugs- however, during this time the cops finds out he has a warrant- cops are going to arrest him, then going to search him anyway (, thus the drug were inevitably going to be found.

Other Sources of Probable Cause [List]

a.) Crime Victim/Witness b.) Observations By Police c.) Official Channels (APS's/BOL's)

Informants are generally Not

a.) Crime Victims b.) Witnesses to a crime that just occurred

plea

an accused response in court to the indictment or information.

sequestration

an order by the court keeping the jurors together during trial or deliberation and not allowing them to home at night or weekends.

citiation

an order issued by a court or law enforcement officer requiring the person to appear in court at a specified date to answer certain charges.

plea bargain

defendant agrees to plead guilty in exchange for a lower charge, a lower sentence, or other considerations

What is a stop

detention of a person briefly for questioning upons suspicion that he may be connected with criminal activity .

What is the Test for Probable Cause

from the vantage point of a trained police officer Looking at the total circumstances, Whether a prudent police officer would have good reason to believe that a crime has been committed and this is the person that has committed it.

Arrest Warrant For Third Party

i. Police cannot go into someone else's house with a warrant to arrest someone else who is not the person identified on the actual warrant. (Steagold) Example: Police had arrest warrant for Lyons - thought he would be at another guys house, so busted into the other guys house. Police did not find Lyons but found Steagold and drugs and thus arrested him. Ct held that the arrest was unlawful because no extigent circumstances

Warrantless Crime Scene Searches

i. The seriousness of the offense under investigation does not itself create exigent circumstances of the kind to justify a warrantless search ii. Crime scene itself does not create its own exigency iii. Some latitude for brief search but extensive search requires a warrant.

Administrative Rules For Impound/Inventory Searches

if police are going to open closed containers like backpacks during inventory searches at the impound yard, they have to do so w/in the guidelines of administrative rules. i. Four Requirements: 1. Lawful Arrest of Driver 2. Necessity For Impounding Car (If No Statute) a. Analyze whether car is in position where it presents a hazard b. Is there a statute that allows officer to impound the vehicle? 3. There must be inventory of contents of vehicle consistent with written guidelines 4. Discovery of evidence has to be inadvertent a. Inadvertent - Cop must be logging an inventory without the objective of intentionally trying to discover evidence. b. Does not apply when evidence is discovered in plain view

booking

making an entry in the police blotter or arrest book indicating the suspects name the time of the arrest and the offense involved.

Moving "Plain View" Objects To Determine P/C Is A Search

search is illegal if cops move the plain view object to discover other evidence. Must get a s/w to move it.

How much force may an officer use to prevent violence?

the amount of force necessary and no greater

arraignment

the appearance of an accused in court where he or she is informed of the charges and asked to plead

reversal

the decison of the lower court is overthrown on appeal

affirmation

the decison of the lower court is upheld on appeal

peremptory challenge

the dismissal of a prosepective juror for reasons that need to be stated.

reverse and remand decision

the lower court's decision is reversed but the lower court can hear further arguments and give another decision in the case.

bail

the security required by the court and given by the accused to ensure the accused attendance in court at a specified time.

arrest

the taking of a person into custody for the purpose of criminal prosecution or interrogation.

miranda warnings

the warnings about the right against self- incrimination and the right to counsel that must be given to a person who is under custodial interrogation.

2. Discretionary Appeals

there is no constitutional right to counsel for discretionary appeals (Appeals to any State Supreme Court or to the US Supreme Court) Ross v. Moffitt: ➢ States can give the right if they want to but not required

Search Warrants and Consent: Situations to look out for:

• While a roommate may give consent to search common areas like kitchens, etc., one cannot give consent to search another's bedroom. • If two people share a bedroom, they still may not be able to consent to a search of the other's dresser, closet, trunk, etc. • Don't forget that consent can be given, and consent can be withdrawn.