Criminal Procedure Midterm
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)
Brady Evidence
(1) Undisclosed evidence favorable to D? (2) Evidence surpassed by P? (3) Prejudice? - Reasonable possibility that result would have been different had evidence been disclosed?
Responsive Intervening Acts
(dependent intervening act) -Based on the foreseeability of a victim's response to a perpetrator's act -A defendant is liable for foreseeable responsive intervening acts
Coincidental Intervening Acts
(independent intervening cause) Defendant is not considered legally responsible for a victim's injury or death that results from an unforeseeable coincidental intervening act
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)
"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)
Steps of Criminal Trial
- Arrest - Booking - Initial Appearance --> Bail or Detention hearing - Preliminary --> Right to counsel attaches - Indictment/info - Pretrial motions & discovery - Arraignment --> Enter plea - Trial - Sentencing - Appeal
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)
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
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"
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
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
5th Amendment Rights
- Self-incrimination; - Double jeopardy; - Grand jury; - Present a defense
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
14th Amendment
-Allowed for incorporation of the Bill of Rights to the states -States to provide due process to its citizens -States must treat all classes of individuals equally
Bill of Rights
1st 10 amendments to the constitution.
Rule of Legality
1st principle American Criminal law, no law, no crime includes the banning of ex post fact law/bill attainer and requires the statutory clarity.
1. Possession of Knowledge of the Peril 2. Acted with the Required Intent 3. Caused the harm to the Victim"
3 Component to establish duty [to intervene a] prosecutor must demonstrate a number of other facts beyond a reasonable doubt
1. Punishment must be acceptable to sociaty (prevailing social values) 2. Strictly necessary to achieve a correctional goal 3. Individual must be treated with human respect (human dignity).
3 Punishment requirements
3 felony and you are out
3 Strikes out
Probable Cause Test
A "totality-of-the-circumstances" analysis
Which of the following answers is the correct definition of criminal procedure?
A branch of constitutional law that defines the rights of those accused of a crime
Binding Authority
A decision that establishes a precedent.
United States v. Place
A drug dog's "sniff test" is not a search.
Hodari D.
A seizure occurs when a person is seized by force or show of authority AND that person submits to the show of authority.
Berghuis v. Thompkins
A suspect who received and understood the Miranda warnings and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to police.
preparatory
According to the text "[p]ossession is a ________________________________ offense. The thinking is that punishing POSSESSION deters and prevents the next step---a burglary, sale of narcotics, or the use of a weapon in a robbery."
Proof Beyond Reasonalbe Doubt, Proof by Preponderance of the Evidence
Civil and criminal actions are characterized by different legal procedures criminal conviction of a crime requires the high standard of _________________________________ [and] responsibility for a civil wrong is established by the much lower standard of_____________________________________. .
criminal offenses written with clarity so ordinary people would understand what is prohibited
Clarity
reduction of sentence
Clemency
The Model Penal Code Standard-Mens Rea
Common Law: General intent, specific intent, tranferred inted, constructive intent
serving sentences simultaneauly
Concurrent sentences
Attenuation of Taint
Connection may become so attenuated as to dissipate the taint 4 Factors [1] Time between initial illegality and seizure of fruit [2] flagrancy of initial misconduct (bad faith) [3] existence/absence of intervening causes of seizure; AND [4] presence/absence of act of free will by defendant resulting in seizure
Individual Responsability -Causation
Connects someone's act to the resulting harm and brings them to appropiate punishment
serving one after another
Consecutive sentences
Schneckloth v. Bustamonte
Consent to a search must be voluntary. Voluntariness is determined by the totality of the circumstances.
Which is the following answers explains the dangers of injustice when studying criminal procedure?
Constitutional rights need to be protected even in people who have committed horrible crimes
subjecting someone to a law that didn't exist by the time of the act was committed, retroactive application of law its prohibited...
Ex post facto law
Fruit of the Poisonous Tree Doctrine
Excludes evidence derived from officer misconduct and any other evidence found or obtained from said misconduct N/A for Miranda Violation
Grand Jury - 5th Amendment
Federal right, some states Composed of 16-23 people & 12 must agree to issue indictment D can waive grand jury indictment, except in capital cases
What amendment gives defendants the right to be free of double jeopardy for the same offense:
Fifth Amendment.
Under what circumstances is a defendant NOT allowed to be retried after jeopardy has attached?
If the defendant's first conviction was reversed based on insufficiency of the evidence.
Terry v. Ohio
If the police have reasonable suspicion that a person is about to engage in criminal activity, they have briefly detain that person (stop) and if they have reasonable suspicion that the person is armed and dangerous, they may pat down the person (frisk.)
Thompson v. Oklahoma - minor under 16 can't be sentence to death penalty. Stanford v. Kentucky - 16 or 17 yrs not considere cruel or unusual Roper v Simmons
Juvenile Death Penalty
Plea Bargaining Elements - NO Constitutional Right
Knowingly; - Waiving big trial rights Voluntarily; - Not coerced; threats of charges ok Adequate factual basis to support the charge
Terry v. Ohio
LEO can detain if reasonable suspicion that crime is afoot :LEO can conduct pat down seach if RS that person is armed
Landlords and Property managers(right to consent to searches)
Landlord may consent to a search of any area over which he has joint access and control. may not consent of a search tenant's home or other areas still under control.
Over hearing a conversation
Lawful if no privacy expectation. basically, a person has no expectation of privacy in conversations which can be overheard by an unaided ear from a common hallway or adjacent apartment. UNLAWFUL if privacy expectation exist. Comm vs Pinnetti, Lenox Police Chief crawled into a space reserved for wire and pipes, that ran underneath the def. apartment. Chief overheard incriminating conversations, which he used obtain a search warrant. This was impermissible, due to the manner he overheard the conversation.
Concurrence
Legal Equation= Mens Rea + Actus Rea
Chief Justice Berger's court was characterized by what type of decisions?
Limiting rights which were incorporated to the states from the Bill of Rights and not "unincorporating" those rights
Non-critical stages - No right to counsel
Lineups before formal charges; photo; scientific testing; probation/revocation proceeding; discretionary appeal; grand jury; civil case; SCOTUS
Involuntary Confessions
MUST BE RESULT OF GOVERNMENT ACTION
"Neutral and Detached" Magistrate Warrant Requirement
Magistrate must not have any interest in the investigation or the search/seizure
The Affidavit
Magistrates may only base their decision on the written materials submitted by the Police applicant. Affiants do not have to disclose all steps of their investigation. Minor errors do not nullify a search warrant. Affidavit not public until filed. Officers may request to impound the affidavit so the contents are not made public.
Requirements of a Warrant
Neutral and Detached Magistrate (no rubber stamp) Particularity (things/persons to be searched and seized)
Examples of non search situations
No KATZ in information voluntarily surrendered by a third party Dog sniffs Open Fields Arial Surveillance of Curtilage Beeper placed in container before defendant took possession but with consent of previous owner
what is the standard of suspicion that must be met before a government agency can order someone to submit to a drug test?
No individualized suspicion, the search is justified by special needs
5th Amendment - DJ Language
No person shall be subject for the same offense to be twice put in jeopardy of life or limb
White (Third Party)
No reasonable expectation of privacy in what you reveal to a third party. You assume the risk that they are an informant.
Exception to Police Good Faith Exception to Exclusionary Rule
No reasonable officer could have relied on the warrant: - knowingly and recklessly disregard the truth in applying the warrant - when a magistrate abandoned his judicial role and becomes rubber stamp - warrant so obviously lacking in probable cause as to render belief unreasonable - warrant is facially deficient
Pre-Accusation Delay - Scher
No right to speedy indictment - just speedy trial. Exception: If sole purpose of delay is to hamper defense - gain tactical advantage
Is a confession sufficient in and of itself to convict a defendant:
No, a conviction cannot be based on uncorroborated extrajudicial confession.
Hot Pursuit [EXIGENCY]
Officer must be within 15 minutes of suspect for warrantless entry Probable cause to believe defendant committed a felony
Proper No-Knock execution: "doorway reappraisal"
Officers at the scene must perform a doorway reappraisal because a no-knock entry becomes unlawful if the situation is less exigent than anticipated. Changed circumstances may transform knock and announce to no-knock.
Good-Faith Exception to Exclusionary Rule
Officers had a Good-Faith reliance on an invalid warrant Exceptions to Good-Faith Exception: [1] Affidavit so lacking in probable cause that no reasonable officer would rely on it [2] Warrant is lacking in particularity [3] Officer lied or mislead the magistrate [4] Magistrate is biased and has abandoned neutral role
1st statement = NO WARNING THEN WARNING 2nd statment
Officers intent (deliberately circumvent miranda?) If 2 step strategy used; post warning statments related to substance of prewarning statements are inadmissible IMPORTANT FACTORS: [1] time between statements [2] location of statements [3] change in interrogators
Traffic Offense/Authorization test
Officers may conduct a traffic stop when they observe a mv violation - even if they have other investigatory motives at the time. Only exception to this principle is a stop based on Racial profile. Minimum standard for a vehicle stop is reasonable suspicion. Community caretaking is a legitimate reason to stop a vehicle.
`Dwelling entries to due Domestic Violence
Officers may enter private property to serve a court order. Officers aware of possible domestic violence may enter to determine whether someone has been abused.
Robinson
Officers may search an arrestee incident to a lawful arrest--the person and the packages immediately associated with him--even though there is NO reason to believe there is weapons or evidence. CATEGORICAL
Closely regulated industries
Pharmacies Motor vehicle dealers Commercial vehicle operators Dealers in Firearms Innkeepers Pawnbrokers Liquor Stores
Minnesota vs. Dickerson
Plain feel doctrine. LEO can seize contraband if it is apparent to their touch or feel
Enhanced technology view interior of residence.
Police do violate a resident's privacy when they use technology - not generally available to the public - to learn about activities inside a home.
Answering and searching cell phones
Police may immediately search an abandoned cell phone. In direct contrast, officers MAY NOT search a cell phone incident to arrest without consent or warrant. Wiretap warrant may permit the interception of cell phone calls and text messages.
Searches of cell phones
Police may not search a cell phone incident arrest. They need consent or a warrant. seize phone if there is PC it might contain evidence. Officers may answer a ringing phone in their custody.
Permissive Sweep
Quick and limited search of premises, incident to arrest Limited to space and time to dispelk reasonable suspicion of danger Only justified if reasonable suspicion of another armed person exists Can only look for other armed person
Gideon v. Wainwright Rule - Right to Counsel
RULE: Counsel must be appointed any the D is facing potential imprisonment Fair trial requires appointed counsel for indigent BUT: Right only applies to critical stages of criminal prosecutions Right entitles D to chose private L, but cannot chose appointed L
US vs Weaver
Race on its own can't be RS for a TERRY STOP Race can be factor when with other factors
Which of the following accurately describes the role of the federal government?
The Constitution states what powers are held exclusively by the federal government
What was the Framers' intent in drafting the Fourth Amendment?
The Fourth Amendment was created to prevent general searches
What is the "Total Incorporation" Approach?
The Framers of the Constitution intended that all of the state constitutions must include the entire Bill of Rights
Under the Due Process Approach, how did the Supreme Court review appeals of state court criminal convictions?
The Supreme Court reviewed the state court conviction to see if the conviction violated fundamental rights of liberty and justice
Why was the Fourteenth Amendment added to the Constitution after the Thirteenth Amendment?
The Thirteenth Amendment only abolished slavery and did not establish rights for former slaves
State/local can't regulate federal. Feds can't encroach local state. - law infrigement of civil/political rights only compelling circumstances. - law can't be discriminatory, not cruel or unusual punishment. Not retroactive
The U.S. Constitution and individual state constitutions establish limits and standards for the criminal law." What are they?
What is the "Total Incorporation Plus" approach to incorporation of the Bill of Rights to state constitutions?
The entire Bill of Rights and fundamental norms of justice and liberty should be incorporated to all state constitutions
voluntary
The requirement of a _____________________________ act is based on the belief that it would be fundamentally unfair to punish individuals who do not consciously choose to engage in CRIMINAL activity and who therefore cannot be considered morally blameworthy.
Which of the following is NOT a fundamental American belief about our government?
The rule of law: that the laws apply to everyone including people in positions of power
Probable Cause
Theory supported by [1] an officer's personal observations; [2] information from a reliable, known informant; [3] information from an unknown informant that has been independently verified; [4] evidence: seized during stops based on reasonable suspicion, discovered in plain view, or obtained during consensual searches
Patane
There are no fruits of Miranda; there are fruits of an involuntary confession
TRUE
True or False (x2): In several states (i.e., Vermont, etc.), a Good Samaritan statute requires individuals to aid other individuals in peril. _____ However, most state Good Samaritan laws do not require individuals to intervene, although people who do intervene are provided some degree of protection from civil liability.
TRUE
True or False: According to the text, in serious cases of family abuse, duty, knowledge, intent, causality, and a failure to intervene are all easily established.
TRUE
True or False: According to the text, there are a number of other crime classification schemes. In fact, the law originally categorized as infamous those crimes that were considered to be deserving of shame or disgrace. For instance, individuals convicted of offenses involving dishonesty were historically prohibited from appearing as witnesses at a trial.
TRUE
True or False: Criminal procedure is concerned with how the law is enforced; criminal law involves what law is enforced.
FALSE
True or False: Generally speaking, a crime punishable by death or by imprisonment for more than six months is considered a felony.
TRUE
True or False: In 1964 in N.Y.C., Kitty Genovese was stabbed a total of (17) times in front of (38) resident onlookers by her assailant, Winston Moseley, who returned to the crime scene on (3) separate occasions over a span of (35) minutes in order to repeatedly stab her, eventually resulting in her death. But, because of the American bystander rule, none of the (38) onlookers actually owed Ms. Genovese a duty of care
FALSE
True or False: Murder, rape, robbery, burglary, larceny, and arson are all considered to be mala prohibita offenses.
no
True or False: Strict Liability need Mens Rea
FALSE
True or False: The American bystander rule is essentially the same as the European bystander rule as neither rule obligates an individual to intervene in order to help another person who may be in need of assistance .
*1984, US move from indeterminated to determinate sentencing. *Violent Crime Control & law Enforcement Act of 1994 *provided funds to build prisons to make violent offenders to serve 85% at least.
Truth in Sentencing
Specific:discourage defendant General: Discourage everyone
Types of Deterrace
1. Imprisonment 2. fines 3. probation 4. Intermediate sanctions - 5. death 6. assets forfeiture
Types of Punishments
Chimel v. California
When an officer makes a lawful arrest, they may make a warrantless, contemporaneous search of the person and the area within the arrestee's immediate control. 1. officer safety 2. destruction of evidence
Collateral Attack
a constitutional challenge by an individual who has been convicted and incarcerated and has exhausted his or her state appeals.
Presumption of Regularity
a court's assumption that criminal justice decision makers acted in good faith rather than out of a discriminatory intent.
Misdemeanor
a crime carrying a criminal penalty of less than a year in prison.
Persuasive Authority
a decision that does not constitute a binding authority but that a court may consult to assist in making a judgment.
certiorari
a decision to hear an appeal
Certiorari
a decision to hear an appeal.
The Blockburger test is:
a defendant may face separate trails for two different charges if each charge contains an element not found in the other charge.
Information
a document signed by a prosecutor charging an individual with a crime.
Contemporaneous Report
a firsthand top made close to the event under the influence of emotion and excitement without time for reflection has additional credibility.
Originalist
a judge who follows the intent of the framers of the US Constitution.
dessenting opinion
a judge's opinion disagreeing w the majority of judges
Precedent
a judicial opinion that controls the decisions of a court presented with the same issue.
Magistrate
a lawyer who serves an 8 year term in the US District Court to issue search warrants, conduct preliminary hearings, and rule on pretrial motions.
Trial de Novo
a new trial before a different court.
The constitutional prohibition against double jeopardy prohibits_____________.
a person from being tried for conduct by both a state and one of its municipalities.
Articulable Suspicion
a police officer in justifying an intrusion must present specific and articulable facts that together with rational inferences drawn from those facts reasonable suggest that an individual has committed a crime or is about to commit a crime.
Frisk
a police officer may pat down a suspect's outer clothing.
Reasonable Suspicion
a police officer may undertake an investigative stop of a suspect where he or she has an objective, factual basis to suspect that the suspect has engaged in, is about to engage in, or if engaging in criminal activity.
Plain Feel Doctrine
a police officer who pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent may lawfully seize the item under the plain feel doctrine.
Drug Courier Profile
a profile developed based on experience that isolates characteristics of a drug trafficker.
Seizure
a reasonable person would not believe himself or herself to be free to leave or to otherwise terminate the encounter.
seizure
a reasonable person would not think he is free to leave
Sixth Amendment
accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and Dist. Confront all and any witnesses against him.
Property Rights Approach or Trespassory Approach
adopted to 4th amendment through Boyd v. US. Assumes such protection is limited to physical intrusions of the home.
Factors for Consent Totality of Circumstances
aggressiveness of police questioning education/age/intelligence environment/time/location number of officers/uniforms/guns informed of the right to refuse consent? nature of detention
14th Amendment
allowed for incorporation of the bill of rights to the states states to provide due process to its citizens states must treat all classes of individuals equally
14th Amendment
amendment to the US constitution passed in 1868 in order to provide equal rights and opportunity to newly free African American slaves.
Indictment
an accusation of criminal activity returned by a grand jury.
Physical Seizure
an act in which a LEO takes physical hold of a suspect with the intent to prevent the individual from leaving.
Discretionary Appeal
an appeal that an appellate court may review or decline to review at its discretion.
Definition of Exigent Circumstances
an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.
Knock and Trick
an entry by deception may legally replace the requirement that police announce their identity and purposes. As long as officers possess a warrant, officers may trick an occupant into letting them in by not disclosing their police affiliation.
Plain View
an exception to the 4th amendment warrant requirement that allows a police officer to seize an item without a search warrant when: the officer is lawfully positioned and there is probable cause to seize the object.
A police officer can make a Terry stop based on an informers tip so long as the tip is accompanied by:
an incidia of reliability
Subjective
an individual exhibits a personal expectation of privacy.
Petitioner
an individual filing a collateral attack on a verdict following the exhaustion of direct appeals.
Informant
an individual who provides information about criminal activity to law enforcement.
Informant Privilege
an informant may not be required to testify.
First Impression
an issue that has never before been decided by a court.
Dissenting Opinion
an opinion by a judge disagreeing with the majority of judges.
concurring opinion
an opinion by a judge supporting a majority or dissenting opinion based on other grounds
Concurring Opinion
an opinion by a judge supporting a majority or dissenting opinion, typically based on other grounds.
Per Curiam
an opinion of an entire court without any single judge being identified as the author.
J.L.
anonymous tip about kid with gun at bus stop Tip was lacking in quantity and quality
Functional Equivalent of Questioning (Innis)
any words or actions by the police that they know are should know are reasonably likely to elicit an incriminating response from the suspect.
retroactivity of judicial decisions
applies to all cases yet to be filed
Consent searches
are allowed because people may choose to give up their privacy. (3) essential requirements: voluntary and clear, lawful presence and proper scope, and must have authority to allow officers to search.
Open Fields
area distant from the home where the police may enter without probable cause.
curtilage
area immediately surrounding home
Where may an immigration officer search a vehicle for illegal aliens without probable cause for the search:
at the border or its functional equivalent
When does jeopardy attach in a jury trial?
at the empaneling and swearing of the jury
Prisoners or Probationers
convicted or incarcerated citizens have a reduced expectation of privacy. a person on probation may be searched by a Probation Ofc. or Police assisting on the basis of reasonable suspicion. If in the home of the probationer, a warrant is still needed, but only based on reasonable suspicion.
Intermediate Appellate Courts
courts between municipal courts and the supreme court.
courts of general jurisdiction
courts that hear more serious criminal and civil cases
Courts of General Jurisdiction
courts that hear more serious criminal and civil cases.
courts of original jurisdiction
courts w a broad range of cases
Courts of Limited Jurisdiction
courts with jurisdiction over a narrow range of cases.
The 6th Amendment applies at what party of the prosecution?
critical stages of the prosecution.
Probable Cause
facts and circumstances within officers' knowledge, and of which they have reasonable trustworthy information, that would warrant a person of reasonable caution to believe that an offense has been or is being committed.
A cooperating individual cannot record a conversation with a suspect while in the suspect's house or hotel room?
false
A law enforcement officer can only detain a person to investigate possible criminal activity on conduct the officer personally observed
false
In order for evidence found as part of an inventory search to be admissible at trial, the inventory search must have been conducted on the officer's reasonable belief that evidence was present.
false
Once a person has granted police to search his car, the person cannot revoke his consent
false
Police are permitted under the Fourth Amendment to take a suspect to the police station for questioning when the police have reasonable suspicion the suspect committed a crime.
false
Police are required to obtain a search warrant before sending a confidential informant into a house to buy illegal narcotics
false
Police may search the car of a person who was stopped and cited for a traffic violation.
false
Police must have consent from the owner of property in order to search it; otherwise the consent is invalid.
false
State courts may invalidate a federal law if it violates the state constitution.
false
The Miranda v. Arizona decision outlines how law enforcement is suppose to conduct an interrogation of a criminal suspect. The decision states that law enforcement must advise a criminal suspect of the Miranda warnings anytime the police interview a suspect.
false
The party who initiates an appeal to the Supreme Court is called the Respondent.
false
The people who knocked at the door after the search warrant was executed were detained without reasonable suspicion
false
The search of the hallway closet was an illegal intrusion into the resident's reasonable expectation of privacy.
false
True or false: the officer was justified in searching the suspect's clothing after handcuffing him.
false
When police ask a judge to a sign a search warrant, the judge may assist the police by going to the location of the place to be searched and determine what evidence could be seized under the warrant.
false
bill of rights
first 10 ammendments of the constitution
stare decisis
follow the precedent set by previous court decisions
Rule of Four
four Supreme Court justices must agree to hear a case.
if police make an unlawful arrest the defendant can
generally force the police not to use the evidence obtained in the unlawful arrest
For Fourth Amendment purposes, consent is proper if:
given intelligently, voluntary, and given by one that has or apparently has authority to do so
Fourth Amendment Standing
government can waive a challenge to standing.
search
govt intrusion on one's privacy
Eyewitness Account
having witnessed and experienced the crime.
Gerstein Hearing
hearing to determine whether police possessed probable cause for an arrest.
Exceptions to the Fourth Amendment warrant requirement are:
hot pursuit of a fleeing felon; emergencies that threaten health and safety; evanescent evidence
Scope of MV search
lawful search extends to all areas and containers - open, closed or locked - that might hold evidence, including the trunk.(locked container may be pryed open to search. when there is PC to search a vehicle, they may also inspect any passengers belongings that might hold evidence.
magistrate
lawyer who serves an 8 yr term in US district court-issue search warrants, conduct prelim hearings and rule pretrial motions
Promises during interview/interrogations
legal promises and pressure forbidden. Psychological pressure permitted. can inform subject, that his cooperation will be brought to the attention of the prosecutor's attention. Officers are under NO obligation to provide legal advice or to discourage a suspect from talking.
Fairness
limits liability to individuals whose conduct produces a prohibited social harm
Motor vehicle exception
long standing exception to the 4th amendment and article 14 warrant requirement is the motor vehicle exception. (2) reasons; inherent mobility of a vehicle makes it impossible in most situations to obtain a warrant without risking the loss of evidence and a lesser expectation of privacy in a vehicle(applies to airplanes and boats). MV exception applies when there is PC a vehicle contains evidence at the time they begin their search and the vehicle is in a public area or parked in an area of potential public or perpetrator access. Officers may develop PC through their lawful contact with motorist.
minimum sentences regardless mitigating circumstances
mandatory minimum sentences
Scope of search incident to arrest
may always search for weapons. may only search for evidence related to the arrest. May seize any evidence properly found. The search extends to the area within an arrestee's reach to prevent his ability to access a weapon or destroy evidence.
Incompetency to stand trial ___________.
may be found if the defendant lacks rational and factual understanding of the charges and proceedings against him
Persons, Possessions, and vehicles(pending warrant)
may secure a person pending a warrant. Police may also secure a suspect's possessions pending issuance of a warrant(suitcases, computers, vehicles)
the police __________ stop automobiles without reasonable suspicion if they have __________, ____________ ____________ to investigate the problem closely related to automobiles and their mobility.
may; neutral; articulable basis
Once a jeopardy has attached, a defendant _____________ be retried after his successful appeal________________.
may; unless his conviction was reversed based on insufficient evidence
Administrative Searches of Closely-Regulated Industries
must be done pursuant to a statute and the statute must specify limitations on the time, place, and manner of the search
Waiver of Miranda - Requirements
must be knowing, voluntary, and intelligent
Waiver of Rights (in General)
must be voluntary (overborne free will?) Knowing/intelligent (understand rights?) defendant may waive invocation by reinitiating convo with officers
Airport Searches (Balancing Test)
must show: (1) governmental interest (2) effectiveness of the search in advancing the interest (3) relative non-instrusiveness (Hartwell)
Waiver - How?
need not take the form of express written or oral statements; can be implied by actions, words, or course of conduct indicating waiver.
Probationer Search
need reasonable suspicion --don't need a warrant
Citation
no police custody of an individual who presents reliable identification and agrees to appear in court.
Parolee's Search
no suspicion needed or probable cause
In which of the following situations is the government required to obtain a search warrant?
none of the above
Non-Testimonial Evidence
not excluded; does not violate right against self-incrimination
Admissibility of postwarning statements
objective standard (MAJ) - reasonable person in D's shoes would understand right to be silent Plurality - Govern admissibility of post-warning statements by using Elstad (good faith exception = if no coercion + curative measures, then 2nd statement is admissible) UNLESS 2-step strategy used (SEIBERT)
Formal Arrest
occurs when the officer directly tells someone that they are under arrest.
physical seizure
officer holds suspect to prevent him from leaving
Spouse/Family consent to search dwelling.
one spouse may consent to a search of property jointly owned or occupied with the other spouse. absent contrary evidence, wife has authority to consent. in absence of some info which indicates exclusive use - such as a wife's inability to produce the key to a locked cabinet - officers may assume that a wife has the authority to consent to a search. Good relations not required/spouse need not be home at time of consent granted.
Miranda warnings
only required when a person is in custody and subjected to interrogation. Custody: under arrest/significantly seized - interrogation: L.E. communicates with suspect by either express questioning, the functional equivalent, or in an effort to obtain testimonial evidence.
Booking Exception
ordinary booking questions do not equate to interrogation
County of Riverside v. McLaughlin
outside limit for a defendant appearing before a judge is 48 hours
abandoned property
owner intentionally discards property
Appellant
party appealing.
Third-Party Consent
person can consent either when: (1) the person has actual authority or (2) the police reasonable believe that the person has authority
Definition of Interrogation (Innis)
person is subject to either: 1. express questioning or 2. the functional equivalent
judicial activism
philosophy that COURTS should play a role in creating social policy
judicial restraint
philosophy that elected officials NOT courts should make social policy
Which of the following answer describes the rights are contained in the Fifth Amendment of the United States constitution?
right to grand jury, prohibition of double jeopardy, and privilege against self-incrimination
Which of the following answer is a right NOT included in the Sixth Amendment?
right to speedy trial, right to jury trial, right to confront witness, right to compulsory service
Aguilar Spinelli Test
says that the affidavit must detail informant's credibility and basis of knowledge.
Sniffing by trained k-9's of possessions of others
sniffing luggage with a narcotic dog is not a search. However, need reasonable suspicion to expose US mail to dog sniff.
Stop and Identify Statutes
state laws that authorize the police to require a citizen subjected to a stop and frisk to present identification.
Gideon v. Wainwright
states are required to provide an attorney to a defendant to a criminal case if the defendant cannot afford one
Racial Profiling
stopping or arresting individuals because of their race, ethnicity, religion, or other characteristic rather than because of their actions.
Expectation of privacy for possession
student lockers have an expectation of privacy, unless there is a written school policy informing them that thier lockers are subject to random search, Military lockers have no expectation of privacy, because it was used to store government property.
judicial review
supreme court reviews the decisions of the legislative and executive branches to see if they are consistent w the constitution and the court is FINAL ARIBTER of the meaning of the constitution.
Which of the following is NOT a purpose of the Constitution named in the preamble?
swift and certain punishment
Affidavit
sworn statement setting forth facts constituting probable cause that an individual has committed a criminal offense.
Judicial Review
the US Supreme Court reviews the decisions of the legislative and executive branches of government to determine whether they are consistent with the US constitution. The court is the final arbiter of the meaning of the Constitution.
Curtilage
the area immediately surrounding the home and is considered part of the home.
When 2 defendants are tried together, the statement of one co-defendant may be admitted if ___________.
the co-defendant takes the stand subjects himself and his statements to cross-examination
If a defendant is convicted and unlawfully obtained evidence was admitted at trial, on appeal the:
the conviction will be overturned unless the prosecution can show the evidence was harmless.
Majority Opinion
the decision of a majority of the judges on a court.
If jeopardy has attached, a defendant may not be retried if:
the defendant's conviction was reversed for insufficient evidence.
In a criminal proceeding, the fruit of the poisonous tree states that__________
the evidence obtained in the unlawful search must be inadmissible AND any evidence obtained in light of the initial unlawful search must be inadmissible.
discretion
the exercise of judgement by a decision maker in the criminal justice system
Discretion
the exercise of judgment by a decision maker in the criminal justice system.
The curtilage
the extent of the private area of a home is known as the curtilage. this includes all buildings close to the dwelling, which are habitually used for family purposes. mailbox part of the curtilage. common or jointly used areas of a building are not considered part of the curtilage, unless can prove it is only used by the def./susp.
Objective Standard
the facts are to be judged in accordance with a reasonable person.
Case By Case Determination
the facts of each situation are evaluated to determine whether a police officer's conduct meets the applicable legal standard.
Original Jurisdiction
the first court to hear a case.
Marijuana order during traffic stop.
the order or social sharing of marijuana does not provide PC to search.(officers may immediately investigate impaired operation, or with other indicators, drug distribution. Presence of hidden compartment is PC for contraband.
Appellee
the party against whom the appeal is filed.
Judicial Activism
the philosophy that courts should play a role in creating social policy.
Judicial Restraint
the philosophy that elected officials rather than courts should make social policy.
Stop and Frisk
the police may stop an individual in those instances in which they have a reasonable basis to believe that crime may be afoot. The police may conduct a frisk for weapons where the individual fails to dispel the officer's fear that the individual is armed and presently dangerous.
If police do not have probable cause to make an arrest, what can they do to stop a person for investigatory purposes?
the police may stop someone for investigatory purposes if they have reasonable suspicion based on articulable facts
Warrantless arrests in public places can happen when
the police officer has probable cause to believe the defendant has committed a felony and the defendant in fact has committed a felony
Stare Decisis
the practice of following the precedent set by previous court decisions.
Plain View Doctrine
three prong test for plain view is lawful presence, inadvertence, and apparent evidence. Plain view applies when officers have a lawful reason to be present at the time they observe evidence.
Judicial activism is when a judicial decision is made which is not based on precedent or statutory law but on the judge's personal beliefs
true
Judicial restraint is when a judge decides a case following the law and not her personal belief of the what the law should be
true
Judicial review is the power of the court to declare what the law is and determine if the government violated the law
true
Narcotics investigators received a tip that two men staying in room 3B at the Shady Ways motel were selling illegal firearms, so the investigators rented room 3C. Once inside their room, the investigators could hear the men in room 3B making deals to sell illegal firearms. True or false: these conversations were lawfully seized under the plain-hearing exception.
true
The government is never required to obtain a search warrant to search an open field even if the owner has erected barbed wire fences and posted no trespassing signs
true
The smell of marijuana is lawfully seized because there is no expectation of privacy when smells emit from a car, luggage, or person.
true
The use of police service dogs to sniff a car or luggage do not require a search warrant if the dog is in a public place.
true
When a person is detained by a law enforcement officer, that person must show identification to the officer.
true
When police make a show of authority towards a person and that person actually submits to the officer is a seizure under the Hodari decision.
true
Consequences of unlawful arrest
unlawful arrest has NO effect on the right to prosecute. an unlawful arrest will often result in the suppression of evidence.
Waiver of Miranda requires:
voluntary and knowing
Executing Search warrants(Dwelling) continued
wait until warrant arrives, then search. Prevent entry and removal of evidence. May prevent individuals from entering or leaving to eliminate risk of evidence being removed. Once a dwelling may be secured from the outside, police may no longer stay inside for that purpose.
General Warrants
warrants allowing colonial authorities to search anytime and anywhere.
Leaving items behind in a building
when a person vacates an apartment and leaves items behind, the police, with the landlord's permission, may enter without a warrant and seize them.
6th Amendment Right to Counsel applies when:
when adversary proceedings against defendant have begun.
Transferred Intent
when an individual commits an act against a person but inadvertently injures the other
Search incident to arrest
when officers develop PC to arrest, they may search incident to arrest. The officers belief that their search lead to evidence of another crime will not, by itself, invalidate their original decision to arrest. no need for a formal arrest, as long as PC exists before the search.
Drug Search warrant for residence.
when outside activity is involved, there must be multiple sales in order for police to have PC to search a dealer's residence.
De Facto Arrest
when, based on the totality of the circumstances, a reasonable person would assume they are under arrest.
Substantive Criminal law
" __________ __________ _______..involves an analysis of the definitions of specific crimes (specific part) and of the general principles that apply to all crimes (general part), such as the defense of insanity."
Protective Sweep
- can sweep a car with RS only
Stack V. Boyle
-SCOTUS ruled that unreasonable bails set for crimes are unconstitutional
Due Process Clause
5th and 14th Amendments to the US Constitution guarantee individuals due process of law. 14th Amendment incorporates this clause to the states along with most of the Bill of Rights.
The "totality of the circumstances" test means which of the following?
A court should only view the information known to the officer at the time of the search or seizure is relevant to determining if the Fourth Amendment was violated
Jardines
A search occurs if police officers, with the purpose of gathering information in the curtilage, by physically entering the area without permission from the owner. (Dog sniff at the front door.)
Components to convict a defendant
Actus Reus, Mens Rea, and Concurrence simultaneously
Mapp v. Ohio
All evidence obtained by searches and seizures in violation of the Constitution are inadmissible in court.
Sentence for a Term of years length of sentence province of elected state and judicial interention
Amount of Punishment
Which of the following sources of information could be used to detain a person for police investigation?
Anonymous information corroborated by investigation
Car Search Exception
Car + Probable Cause = Reasonable Search Probable cause may arise after the car is pulled over but not after the initial search NOTE: CAR = EXIGENCY
unconstitutional the prohibition of selling contraceptives to minors.
Carey v. Population Services International
Don't violate the 8th Amendment
Death Penalty was found...
What is the Due Process revolution?
Decisions made during the term of Chief Justice Warren which selectively incorporated federal rights to state constitutions
Mens Rea
Evil mind, state of mind
Denial of confrontation
Harmless error analysis
Brady/Giglio timeline
In time for efficient use at trial
Scher Test - Pre-Accusation Delay
Prejudice; Justification or Reason
Exceptions to Confrontation Rights
Rule 804(b)(1) - Unavailable; prior testimony w/ opportunity to cross FRE 804(b)(2) - Maybe dying declaration FRE 804(b)(6) - Forfeiture by wrongdoing
sexually attracted to boys
What does it mean (a male) is a/an "ephebophile"?
Under the Trespass theory of the Fourth Amendment, which of the following searches did not require a search warrant?
Wire tapping into a suspect's telephone line that was located outside his house
Is warrant forum shopping allowed?
Yes
collateral attack
a constitutional challenge by an individual who has been convicted and incarcerated and has exhaused state appeals
Exigent Circumstances
emergency circumstances justifying warrantless entry into the home.
plain view
exception to 14h ammend-seize item w/o warrant w probable cause
The driver of a car stopped by law enforcement cannot be ordered out of the car unless the driver is suspected of being armed.
false
Using binoculars to observe activities in public
in public using binoculars is proper, but using binoculars to observe activities in a home does infringe on privacy.
judge can determinate the max and the min within defined limtis
indeterminate sentence
first impression
issue has never been decided by a court
Specific Intent
mental determination to accomplish a specific result
Arrests
police custody of an individual based on probable cause that he or she committed a crime.
To conduct a frisk of a person stopped for investigative purposes without a warrant, the police must have:
reason to believe the suspect is armed and dangerous
The police may stop a person for investigatory purposes if they have at least _______________ based on articulable facts.
reasonable suspicion
Veracity Prong
requires an officer to demonstrate that he or she has good reason to believe that the informant's information is accurate.
Objective
society recognizes this expectation as reasonable.
En Banc
the entire court.
Reasonable Suspicion
totality of the circumstances - take them ALL TOGETHER in the "Soup" (Arvizu)
The CDs were lawfully discovered in this case.
true
Causation
Central to criminal law. 1. Individuals Responsability 2. Fairness .
Packages Immediately Associated with a Person SIA
Chadwick - footlocker not immediately within control could not be searched Perdoma - Even if the item is removed from immediate control, this does not mean it remains outside immediate control.
Arizona v. Gant
Chimel in the vehicle context allows police to search the car incident to arrest ONLY when: (1) the arrestee is unsecured and within reaching distance of the passenger compartment; OR (2) it is reasonable to believe that the vehicle contains evidence of the CRIME OF THE ARREST.
Riley v. California
Chimel rationales do not support searching a cell phone incident to an arrest
Brown v Board of Education
Civil Rights Case; Decision: School segregation was unconstitutional (over turned Plessy v Ferguson)
Plessy v Ferguson
Civil Rights Case; Decision: Segregation is constitutional, as long as the separate facilities are equal
Korematsu v U.S.
Civil Rights Case; Decision: The government can legally hold anyone they believe to be a threat to national security
Roe v Wade
Civil Rights Case; Decision: abortion is protected under the right to privacy
CA v Bakke
Civil Rights Case; Decision: noone can be denied a job or position based on their race
concurrent jurisdicton
joint authority of federal and state courts over certain areas
Concurrent Jurisdiction
joint authority of federal and state courts over certain areas of criminal justice.
common law
judge made law brought from England to US
Common Law
judge made law brought from England to the US.
Arrest Warrant
judicial finding that there is probable cause to arrest an individual.
precedent
judicial opinion that controls the decision of a court presented w the same issue
Individuals, Community
"...English Jurist William Blackstone summarize[d] the distinction between civil and criminal law by observing that civil injuries are 'an infringement...of the civil rights which belong to __________.public wrongs, or crimes...are a breach and violation of the public rights and duties, due to the whole _______________.'"
not LEGALLY
"An OMISSION is a failure to act or a 'negative act.' The basic rule in the United States is that an individual is ______________________________ required to assist a person who is in PERIL
Non-Criminal
"Florida classifies offenses as felonies, misdemeanors, or ___________________________ violations that are primarily punishable by a fine or forfeiture of property."
Right to Counsel - Language
"In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense"
Prohibited by law.
"MALA IN SE crimes are considered 'inherently evil' and would be evil even if not prohibited by law. MALA PROHIBITA offenses are not 'inherently evil' and are only considered wrong because they are ________________________________.
Profesor Henry M. Hart
"Rather than punishing a Defendant, the judge may merely warn him or her not to repeat the criminal act." Plus, "[t]he central point of _____________________________________, Jr.'s definition is that a crime is subject to formal condemnation by a judge and jury representing the people in a court of law."
Ciraolo
"Right to Be, Right to See" One has no reasonable expectation of privacy in what is observable from a public vantage point where a person has a right to be and renders the activities clearly visible.
Police Powers
"State governments possess the broad power to promote the public health, safety, and welfare of the residents of the state. This wide-ranging __________ __________ includes the 'duty...to protect the well-being and tranquility of a community' and to 'prohibit acts or things reasonably thought to bring evil or harm to its people.'
Knowing Possesion
"The Model Penal Code establishes that the voluntary procurement of contraband or ___________________ possession of contraband for a 'sufficient period' satisfies the standard of _____________________."
mere status or condition.
"The commentary to Model Penal Code section 2.01 stresses that a crime requires an ACT and that individuals may not be punished based on ...
Order and Stability
"The primary purpose or function of the criminal law is to help maintain ______________________________ & ___________________.
Violations or Infractions
"The term GROSS MISDEMEANOR, is used in some states to refer to crimes subject to between 6 and 12 months in prison, whereas other misdemeanors are termed PETTY MISDEMEANOR, Several states designate a third category of crime that are termed ________________________ or ______________________________.
actus reus
"[v]oluntary act [as a] bodily movement that is the product of a conscious choice." Plus, this legal principle is define as "[a] voluntary act or failure to perform an act." What is this legal principle called?
(4) exceptions to the Exclusionary Rule
#1. Attenuation: applies when court decides police obtained evidence as an INDIRECT result of their illegal detention or arrest. the discovery of evidence becomes attenuated or separate from the improper police action.
(4) exceptions to the Exclusionary Rule
#2. Independent source: recognizes that officers should not be penalized for unconstitutional activity when the evidence also came from another legitimate source
(4) exceptions to the Exclusionary Rule
#3. Inevitable discovery: if officers improperly obtain evidence, but would have found it later by lawful means, a reviewing court should not suppress it. (evidence seized in violation of the search warrant requirement WILL NOT be admitted even if it is subsequent discovery was inevitable.
(4) exceptions to the Exclusionary Rule
#4. Collateral proceedings: while the exclusionary rule may prevent police from using illegally obtained evidence to prove their case trial, it does not eliminate the use of that evidence for all purposes in all proceedings. (impeach a def. false testimony at trial, revoke a def. probation or parole, remove a child from a home for parent unfitness, discharge or discipline a public employee, or prove a civil case.)
Double Jeopardy Analysis
(1) Did jeopardy attach? - Jury sworn in, first W, or guilty plea accepted (2) Same offense? - Blockburger Test: Is there a distinct element to the new charge? (3) How was the first prosecution resolved? (4) Does an exception apply? - Retrial after D's successful appeal for error at trial; - Retrial after mistrial - Manifest necessity precludes DJ - Dual Sovereignty
Ineffective Assistance of Counsel Strickland Claim - 6th Amendment
(1) L's performance was deficient; AND (2)Deficiency prejudiced D's defense to extent that there is a reasonable probability that but-for L's deficiency, results of proceedings would have been different
Batson Challenge
(1) Prima facie case of discrimination; - protected group; group removed; inference shows it was based on group classification (2) Opposing party make legitimate non-discriminatory reason; AND (3) Burden shifts back to moving party to show explanation just a pretext
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
6th Amendment Rights
- Counsel; - Self-Representation; - Speedy trial; - Impartial jury; - Confrontation
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
8th Amendment Rights
- Excessive bail & fines; - Cruel & unusual punishment
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)
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)
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
Kentucky v. King
- destruction of evidence exigency, even when police create the exigency - if they police threaten to act in a way that violates the 4th, then it is unconstitutional
Wardlow
- high crime area is not enough for reasonable suspicion -high crime area AND flight is enough for RS
Attenuation of Taint
- if the connection between the method and the illegal event is attenuated, then the evidence is not excluded.
Factors for REP in Standing
- whether D has property interest - where D was legitimately in the place invaded - whether he had complete dominion - whether he took precautions - historical notions of privacy
Katz V. U.S.
-Created a two part test -Determined if 4th amendment expectation of privacy exists -Test consists of 1. Exhibits personal expectation of privacy 2.Society recognizes that expectation as reasonable
Minnesota V. Dickerson
-Created plain feel doctrine -During a pat search (Terry Stop) a LEO can seize contraband if they feel it with their sense of touch or feel
U.S. V. Wade
-Defendant has a right to counsel during critical stages of a prosecution
Marbury V. Madison
-Established judicial review -SCOTUS has final determination if executive or legislative acts are constitutional
Terry V. Ohio
-LEO can detain if they have reasonable suspicion -LEO can conduct a pat down if they have reasonable suspicion they are armed
4th Amendment
-Prevents unreasonable search and seizure -Need a warrant to search person or place -No warrant shall be issued without PC -Meant to place an independent judge between LEO and citizens
8th Amendment
-Prohibits cruel and unusual punishment -Prohibits excessive bail (There are no constitutional rights to bail only against excessive bail)
U.S. V. Weaver
-Race on its own can't be used to constitute reasonable suspicion in regards to a terry stop -Race can be a factor when combined with other factors
5th Amendment
-Right against self-incrimination -Right to due process -Double jeopardy -Equal protection clause (treat all classes equally)
6th Amendment
-Right to speedy trial -Right to a public trial -Right to a jury trial Right to counsel -Right to confront witnesses in a criminal prosecution
Illinois V. Gates
-SCOTUS recognized the totality of the circumstances test to determine if probable cause exists -An individual has to look at everything when making a determination if PC exists
Gideon V. Wainwright
-States are required to provide an attorney to a defendant if they can't afford one
Brady V. Maryland
-The state must turn over all exculpatory evidence they are aware of to the defendant
County of Riverside V. Mclaghlin
-Time for appearing before a judge/magistrate is 48 hours
Strict Liability statute factors:
-offense not common law -single violation enought to place society in danger - the conviction of an "innocent" individual is outweighed by the public interest -penalty is relatively minor -conviction does not harm a defendant's reputation -law does not significantly impede the rights of individuals or impose a heavy burden -These are acts that most people avoid, and individuals who engage in such acts generally possess a criminal intent
When does an officer have probable cause?
-when s/he has knowledge of reasonable trustworthy facts and -circumstances sufficient to warrant a reasonably prudent person to believe the suspect has committed or -is committing a crime
Duty Peril
...[I]ndividuals are not expected to 'accomplish the impossible.' The law excuses persons from fulfilling their __________in those instances in which they would be placed in ___________. Individuals, however, must take whatever action is feasible under the circumstances...."
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.
In which of the following scenarios was the suspect seized if the Mendenhall rule is applied?
1) A police commands a person to stop but the person runs away 2) Police officer activates emergency lights behind a car when directly behind it but the car does not pull over and stop 3) A police officer grabs a person's arm and the person yanks his arm away
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)
Which of the following situations are a de facto arrest?
1) Deputy sheriff approached a person and placed him in handcuffs for safety purposes 2) A person is stopped on the street and then taken to police HQ for questioning 3) A person stopped on the highway for a traffic violation is held after the citation has been issued until a K-9 arrived five minutes later to sniff his car
Exceptions to Warrant Requirement (generally)
1) Exigent Circumstances 2) Plain View Doctrine 3) Automobile Exception 4) Search Incident to Arrest
What does the Constitution say about the relationship between federal and state authority to govern?
1) Federal law is the supreme law of the land and the states cannot violate federal law 2) States are free to enact laws unless the federal constitution prohibits the state's from regulating that area of the law 3) States may enact laws only in areas not exclusively governed by federal law
Which of the following is true about general warrants?
1) General warrants were issued by a government official without any knowledge of the reasons for the warrant 2) General warrants were required to be served during day time hours only 3) General warrants permitted searching the same place repeatedly until the King died
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)
Officer Jones received a radio call of a person prowling cars in a mall parking lot. The person was described as a white male, in his early twenties, wearing a green jacket. Officer Jones arrived near the parking lot and looked through binoculars; he saw the described person walking in the middle of the parking lot. He was looking around quickly and then pulling on car door handles. After seeing that person attempt to open three cars, Officer Jones moved in. He pulled up to the suspect and pointed his handgun at him, and ordered him to the ground. After the suspect got on the ground, Officer Jones handcuffed and searched him. He found several CDs in his jacket pocket and found methamphetamine and a pipe in the front pockets of his pants. Officer Jones removed the suspect's wallet and looked at his identification. The suspect was then put in backseat of the police cruiser which was equipment with a cage. The suspect was arrested for possession of stolen property less than $200, a misdemeanor; and possession of a controlled substance, the methamphetamine. Which of the following is true about the stop and frisk of the suspect?
1) Officer Jones had reasonable suspicion to stop the suspect based on his personal observations 2) Officer Jones had reasonable suspicion to stop the suspect based on the information provided by the radio dispatcher 3) Officer Jones had reasonable suspicion only because he corroborated the information provided by the radio dispatcher
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
Which of the following is true about the search of the car?
1) Searching under the seat for a gun was reasonable 2) Searching the car truck was within the scope of a search for a gun 3) Discovery of the stolen cell phones was a valid plain-view seizure
Why is Terry v. Ohio one of the most important decisions in the history of the United States Supreme Court?
1) The decision was first to use the reasonableness clause to justify a seize of person 2) Terry greatly expanded police authority to investigate criminal activity 3) Courts could determine if police conduct violated the Fourth Amendment when a person was briefly detained without an arrest
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
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
A witness subpoenaed to testify before a grand jury has NO right to:
1. Know she is a potential defendant. 2. Miranda warnings 3. Counsel
Arrest in a Home
1. Need a warrant or exigent circumstance 2. Need to reasonably believe the person is in the home. 3. If in someone else's home, need a search warrant to look for the person
Definition of Burglary:
1. breaking 2. entering 3. dwelling of another 4. in nightime (not necessary) 5. w/ intent to commit larceny or felony.
when may police restart questioning if the defendant requests the right to remain silent?
1. cease questioning, and not resume until for several hours. 2. provide a fresh set of Miranda 3. new questions not related to crime in prior questioning.
Two prongs of a successful ineffective counsel claim:
1. deficient performance by counsel AND 2. but for counsel's deficient performance the result would be different
Basis of Knowledge(3 ways to demonstrate)
1. explain the source of the informants tip 2. provide details 3. engage in police corroboration(should use all three approaches)
3 requirements for a valid warrant are:
1. neutral magistrate 2. based on probable cause 3. particularly describe place or person to be searched
Areas where people DO NOT have a reasonable expectancy of privacy:
1. sound of voice 2. account records held by bank 3. handwriting 4. paint on outside of car 5. magazine one offers for sale
selective incorporation plus
14h ammend.due process clause incorporates some of the bill of rights
Selective Incorporation Plus
14th Amendment Due Process Clause incorporates only selected provisions of the Bill of Rights along with other rights
Selective Incorporation
14th Amendment Due Process Clause incorporates only selected provisions of the Bill of Rights.
1. Rational Basis Test or Minimum Level of Scrutity = valid as long related to constitutionally, public safety, health, morality, peace and quite, loaw and order. 2. Strict Scrutiny = Single racial out or ethnic minority, no alternative approach to advance any state interest. Law that violate equal protection. - test to limit fundamental rights 3. Intermediate Scrutiny= Gender differentiations, ie. harsh sentence to male abusers than females, based on physical strenght
3 levels of Scrutiny.
rule of four
4 supreme court judges rquired to vote to hear a case
due process clause
5th and 14th ammendments to constitution guarantee due process of law - they incorporate most of the protecton of the bill of rights.
Speedy Trial Violation - Remedy
6th Amendment - Dismissal w/ prejudice Fed Act - Dismissal w/ or w/o prejudice
Cause in Fact - Legal Equation
= But for, defendants criminal act the victims would not be injured/harm.
Legal or Proximate Cause - Legal Equation
= Fair or just to hold defendant criminally responsible
Causality - Legal Equation
=Cause in Fact + Legal or proximate cause
Intervening Acts - Legal Equation
=Coincidental Int act limits liability where is unforseeable, responsive intervening act limit liabiltiy where is unforeseeable and abnormal
Plurality Opinion
A judicial opinion that represents the views of the largest number of judges on a court, although short of a majority.
Which of the following situations is an exception to the expectation of privacy doctrine?
A knowing exposure to the public of something in a location with a reasonable expectation of privacy
Mendenhall
A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believe that he/she was not free to leave.
Rakas
A person who wishes to challenge a search under the Fourth Amendment must assert a legitimate expectation of privacy in the area searched.
Katz v. United States
A search occurs when the government violates an expectation of privacy that is (1) actually exhibits and (2) is one that society is prepared to recognize as reasonable.
What is the legal rule created by the Katz v. United States?
A search warrant is required when the government searches a place with a reasonable expectation of privacy
Third party search warrants
A third party is someone NOT involved in the underlying crime. Sometimes police learn that a third party, either knowingly or unknowingly, possesses evidence. Court may issue a warrant to search the third party's premises. Limitations for third party searches for privileged files of lawyers, therapists, and religious officials are severely restricted, unless evidence will be destroyed without police intervention or those professionals participation in criminal conduct.
Bench Trial
A trial in which the judge alone hears the case without a jury.
What will a grand jury issue if it determines that evidence provides probable cause to prosecute?
A true bill.
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)
What must be included in a police officers affidavit of probable cause to obtain a search warrant? a) info so magistrate can make a "common sense" evaluation of probable cause b) ID of the informer who provided info
A) sufficient info so magistrate can make "common sense" evaluation of probable cause.
Forcible Warrantless Entry
Absent an exigency, a forcible warrantless entry into a home to make a felony arrest violates the fourth amendment
Oregon v. Elstad
Absent deliberately coercive or improper tactics in obtaining the initial, un-Mirandized statement, the mere fact that a suspect has made an unwarned admissible does not warrant a presumption of compulsion. Normally, Miranda warnings will suffice to render the second statement inadmissible.
1.) Crimes Against the State; 2.) Crimes Against the Person (Homicide, Manslaughter, et al.); 3.) Crimes Against the Person (Sexual Offenses, Kidnapping, et al.); 4.) Crimes Against Habitation; 5.) Crimes Against Property; 6.) Crimes Against Public Order; 7.) Crimes Against the Administration of Justice 8.) Crimes Against Public Morals.
According to the text (on page 5), the subject matter offenses are often listed (and/or classified) in a descending order of seriousness. They are:
What is required to show COI
Actual COI or potential COI Actual = present & obvious COI between two co-Ds, a W and a D, etc. Actual when L performance is adversely affected by the COI D can waive COI, but two co-Ds in capital case cannot waive COI -- D must understand harm, circumstances, informed consent
Maryland v. Buie
After an arrest, police may CATEGORICALLY sweep closets and spaces immediately adjoining place of arrest for people. Reasonable suspicion could warrant a sweep beyond those areas. Chimel will allow SIA in grabbing area. Hicks --> plain view
Giglio Evidence
All impeachment evidence of non-law enforcement W's for P
1. Individual intervening may be placed in jeopardy, 2. bystanders may misconceive situation, unnecessarily interfere, and create unneeded complications 3. individual may lack physical capacity/expertise to subdue the perpetrator, rescue, or place themselves in danger and these is a job/role for criminal justice professionals 4. circumstances under someone should satisfy the obligation to assist another would be diffictul to clearly define 5. criminal prosecutions for a failure to intervene would burden the criminal justice system 6. individual in capitalist society are responsible for their own welfare and should not expect others assistance from others. 7. most people will assist as a moral responsibility, no need for law to require intervention.
American ByStander Rule Reasoning: (7)
fair and just
Amount of punishment
Respondent
An individual against whom a collateral attack is directed.
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)
Berkemer v. McCarty
An ordinary traffic stop is not coercive enough to render a person "in custody" for the purposes of Miranda. --IT IS A SEIZURE; reasonably related to the scope of the stop and justification ofr the initiation
Knowngly
Awareness of result of his/her conduct. Willfull Blindness, aware of probable existence, but rather believe is not there.
Which of the following is a correct statement regarding police use of sensory-enhancement devices for surveillance at or near a person's house?
Any device that reveals information about the inside of the house, that was not available outside the house, is a search
What does "interrogation" mean in the context of Miranda.
Any govt. tactic that is known and likely to illicit an incriminating response
Officer standing in front of a door may shine his flashlight in the window
Appeals court ruled its okay, because any person might have walked up to the window and seen the occupant, the officer did not more than any citizen might do.
*Determinate sentencess *Mandatory Minimum Sentences *Indeterminate sentence *individual convicted of multiple could be given *consecutive sentences - serve after another or concurrents *Clemency *Pardon
Approaches to Sentencing
Searches Incident to a Lawful Arrest
Arrest must be lawful Search must be contemporaneous in time and place Officers can search the person and grab space only Cannot search phone w/out warrant Officers may search passenger compartment of car if: [1] Arrestee is unsecured; OR [2] Officer reasonably believes evidence of crime will be found therein
supremacy clause
Art. 4 Sect 2-constitution is supreme law of the land
Denial of 6th Amen. Speedy Trial
Automatic Reversal on Appeal
Denial of counsel or counsel of choice
Automatic Reversal on Appeal
Denial of public trial
Automatic Reversal on Appeal
Denial of self-representation
Automatic Reversal on Appeal
Racial discrimination in selection of grand/petit jury
Automatic Reversal on Appeal
Carney
Automobile exception
Special Needs Searches
Balancing Tests; generally do not need a warrant; based on reasonableness 1. govt interest 2. Are the means effective in furthering interest? 3. How intrusive? NOT part of criminal investigation
Right to Speedy Trial - 6th Amendment Claim
Barker Factors - varying weight given: (1) Length of delay; - At least a year? (2) Reason for delay; - D's fault or P's fault? (3) D assert right; AND - If not, no violation (4) Prejudice - Can be presumed if long enough - D can prove
What does the attachment of jeopardy on a greater offense do:
Bars retrial for all lesser included offenses.
Confrontation - Reliability
Based on concept of reliable testimony - Physical presence, oath, cross, observation by jury
Joinder - Rule 8 - May join charges or D's if:
Based on same act/transaction or relate to/constitute parts of common scheme or plan Permissible; not mandatory
Troopers of the State Patrol conducted a no-knock search warrant on a house owned by members of a notorious motorcycle gang for methamphetamine. The Troopers used a ram to open the front door and found three people sitting on couches in the living room; they were each taken to the floor and restrained with flex-cuffs and searched. The Troopers then entered the kitchen and arrested another male who was sitting at a table with a money counter, an electronic scale, ledgers, a box of cellophane baggies, a pile of methamphetamine, and baggies filled with methamphetamine. The Troopers continued to search the rest of the house. In an upstairs bedroom, they found a naked man and women in bed and removed them from the bed, to the floor, and placed flex-cuffs on their wrists. In that bedroom the Troopers found several illegal firearms. Additionally, in the hallway closet, the Troopers found chemicals commonly used to manufacture the illicit drug MDMA. As the Troopers were inside the house collecting the evidence and identifying the people, two people came to the door. The Troopers answered the door and demanded their identifications but they refused. The Troopers arrested them for obstructing a police officer. Troopers searched them and found methamphetamine pipes in their front pockets. Which of the following is true regarding the restraining of the people in the living room?
Being present at a house suspected on distributing controlled substances is reasonable suspicion
In a criminal jury trial, if state law allows a sentence to be increased beyond the statutory maximum sentence on proof of aggravating circumstances, the jury must find those aggravating circumstances proven:
Beyond a Reasonable Doubt
Two step process when facing death penalty, once for to determinate guilt and the other for the sentencing part
Bifurcated trial - Death Penalty Gregg v. Georgia
punishment applied w/o trial
Bill of Atainer
1. Criminal AcT 2. Criminal Intent 3. Concurrence 4. Causation 5. Responsability 6. Defenses
Building Blocks to contruct specific offenses such as rape, murder and robbery.
Gant Extended
Casper (hotel search of coat) was extended outside the vehicle context in Virginia; 8th circuit has not extended
Texas v Johnson
Case about 1st Amendment Rights; Decision: Flag burining is protected under your Constitutional right to free speech
Bethal Schools v Fraser
Case about 1st Amendment Rights; Decision: Schools have the right to regulate speech that disrupts the school environment
Tinker v Des Moines Schools
Case about 1st Amendment Rights; Decision: Students may exercise freedom of speech in non-disruptive way
Abingdon Schools v Schempp
Case about 1st Amendment Rights; Decision: Students may not be forced to take part in religious exercises in school
Schenk v U.S.
Case about 1st Amendment Rights; Decision: The government may limit speech they believe constitutes a "clear and present danger" during a time of war
U.S. v Nixon
Case about National Power; Decision: Executive privilege cannot circumvent Due Process of Law
McCulloch v Maryland
Case about National Power; Decision: National Supremacy
Heart of Atlanta Motel v U.S.
Case about National Power; Decision: The commerce Clause gives Congress the power to regulate private businesses
Marbury v Madison
Case about National Power; Decision: established the power of judicial review
People v. Kellogg
Case where Defendant/Appellant was convicted for being homeless, chronic alcoholic (actually convicted statutory offense of disorderly conduct)? People
Pre-Trial right to counsel
Counsel not required before defendant has not been formally charged
Post-Indictment Right to counsel
Counsel required after defendant has been formally charged
Courts of Original Jurisdiction
Courts with jurisdiction over a broad range of cases.
Katz vs US
Created 2 part test to determine if a 4th A expectation of privacy exists and should be applied to someone/something 1) personal expectation of privacy (subjective) 2) Society recognizes as reasonable (objective)
Mapp v Ohio
Criminal Procedure Case; Decision: Courts cannot use evidence obtained without a warrant to discredit a witness or defendent
Gideon v Wainwritght
Criminal Procedure Case; Decision: Everyone is entitled to a court appointed attorney if they cannot afford their own
New Jersey v TLO
Criminal Procedure Case; Decision: Schools do not have to have a warrant to search student; only a reasonalbe suspicion
Miranda v Arizona
Criminal Procedure Case; Decision: Suspects in custody must be informed of their rights before interrogation (Miranda Rights)
Gregg v Georgia
Criminal Procedure Case; Decision: The death penalty is appropriate punishment for crimes like 1st degree murder; Overturned Furman v. GA
Furman v Georgia
Criminal Procedure Case; Deicision: The death penalty is cruel and unusual as punishment for most crimes
TRUE
Criminal procedures is concerned with how the law in enforced, criminal law is concerned with what law is enforced.
know the general character of the material.
Criminal statutes punishing possession are typically interpreted to require that an individual (1) know of the presence of the item, (2) exercise actual or constructive possession [of the item], and
Concurrence
Cronological order of Actus Rea and Mens Reus
may not be inflicted in a cruel o unsual fashion, capital punishment must be proportionate to the offense and reserved for aggravated murder, punishment cant be based on conviction for a status offense, a socially harmful act.
Cruel and Unusual punishment *Summary
United States v. Dunn
Curtilage has the same protection as the home. PINS Test for Determining Curtilage Proximity to the House, Inside the Enclosure of the Home, Nature of the Uses, Steps Taken to Protect Area
Confrontation - 6th Amendment - Generally
D enjoys right to confront witnesses against him Allows D to look accuser/V/W in eye & cross Not an absolute right & D can waive - Exclusion or Absence of D; - Grand jury; or - Child V
Waiver of Right to Jury Trial
D may waive right to jury trial if: (1) P consents; and (2) Court agrees to bench trial
Arrest
Defendant is in placed in custody; requires probable cause
Standing
Defendants may only suppress evidence where they have a personal reasonable expectation of privacy
police, prosecutors, judges/jurors provided with clear statement of what is prohibited. To be uniform and nondiscriminatory on law enforcement.. clear instructions of application of law and procedures.
Definite Standard for Law enforcement
Federal Rules of Criminal Procedure
Detailed rules for criminal procedure drafted by federal judges and approved by Congress.
little judicial discretion
Determinate sentences
Which of the following is the legal test to determine if property has been abandoned by its owner?
Did the owner intend to abandon the property
Remedies for Broken Plea
Discretion of specific performance or withdrawal
8th Amendment - Bail Language
Does not guarantee right to bail in all cases, rather, states that when there is bail, it cannot be excessive
Florida v. Harris
Dog sniff = Probable cause
United States v. Place
Dog sniffs are not searches because (1) the search is minimal and (2) is geared toward finding contraband.
Hammond v. IN
Domestic violence; not ongoing emergency
Davis v. WA
Domestic violence; ongoing emergency
Curtilage
Dunn Factors: [1] Proximity to the home [2] Enclosure [3] Nature of Use [4] Concealment
Brady Violation Remedy
During trial = continuance; exclusion; curative instruction; mistrial; disciplinary action; dismissal After trial = New trial, D given info
1.) Status 2.) Statute 3.) Contract created by agreement; 4.) Assumption of a Duty 5.) Creation of Peril, 6.) Control 7) Property owner.
Duty to assist:
Reinterrogation after Invocation of Right to Counsel
Edwards protections are not eternal; police can reinterrogate after a break in custody sufficient in duration (14 days)
Emergency
Enter without a warrant when police have an objectively reasonable basis to believe that someone is injured or imminently threatened with injury
Which one of the following statements is true regarding detaining the people in the bedroom.
Entering the people was a permitted protective sweep of the house and found to be reasonable by U.S. Supreme Court decisions
Total Incorporation Plus
Entire Bill of Rights along with other rights not contained in the Bill of Rights are incorporated into the Fourteenth Amendment Due Process Clause.
unconstitutional for a judge dictate sentence based on race, gender, ethnicity or nationality.
Equal Protection
1868 the Equal Protection was enacted "no state shall deprive any person of life, liberty or property without due process of law"
Equal Protection 14th Amendment
decisions and statutes based on crime and not gender, preferences, origin or else.
Equal protection ...
Marbury v. Madison
Established concept of judicial review. SCOTUS has final determination whether or not executive or legislative acts are constitutional
First amendment
Establishment of religion, freedom of speech or press, right to peacefully assemble and petition the Government for a redress of grievance.
proportionality - should fit the crime individualism - reflect offender criminal history and threat to society. disparity - uniform with alike cases predictability - should be clear and not depend of biases excessiveness - avoid unnecessarily pain truthfulness - actual time served purpose - achieve a purpose
Evaluating Sentencing
Wilson v. Arkansas
Failing to knock and announce is part of the analysis of whether or not a search is reasonable.
4th Amendment
Freedom from unreasonable searches and seizures Warrant needed to search a person or place No search warrants issued without PC The concept was to place a judge between LEO and citizens
Which of the following is true about the frisk of the back seat passenger?
Frisk of the back seat passenger's pant pockets was beyond the scope of a search for weapons
Systems for Providing Attorneys & pros/cons
Government Funded Office - Salaried staff; huge case load & fixed budget Contracted Services - Lump sum, incentive to do as little as possible & keep what they don't pay Assigned Counsel Plan or Panel
Jury instructions
Harmless error analysis
P breaches plea bargain
Harmless error analysis
denigrates, humiliates, attacks individuals on account of race, religion, ethnicity, nationality, gender, sexual preference or other characteristics.
Hate speech
California v. Ciralo
Held that aerial surveillance from 1,000 feet is not a search, even inside the curtilage
Leon
If police have a reasonable, good faith reliance on a warrant which is later found to be unsupported by probable cause, the exclusionary rule will not apply to evidence found pursuant to that warrant.
When may the police search the interior of a car incident to an arrest?
If the arrestee is not secured OR; if police have reasonable suspicion the automobile harbors evidence of a crime
Proof that the accused knowingly obtained or received the contraband (a voluntary act) or failed to immediately dispose of the property (failure to fulfill a duty)
How does the possession of contraband meet the requirement that a crime involve a voluntary act or omission?
4 types of Informants
Identified citizens: have automatic veracity because they know they face consequences if they lie. Identifiable citizens: worthy of belief because their anonymity is at risk, enough info about themselves to be brought into court in the event they lie. Anonymous Informants: name and identities are not known to police and merit no presumption of reliability. they may be reliable if they describe a startling or shocking event right after it unfolds. Confidential Informants: they help police investigate crime. Disclosure of an informant's identity is usually required when he is an active participant in the crime charged or the only non-government witness.
COI - Rule
If D shows COI, D not required to demonstrate actual prejudice; but simply that COI adversely affected L's performance in D's case
Voluntariness of Confession
If a confession is obtained by overbearing the will of the accused, it is involuntary and inadmissible. SUBJECTIVE - totality of circumstances
Inventory Search
If arrested, officers may search suspect and entire vehicle (including containers) for routine booking
COI & Appointed Counsel
If either PD or Kx raises COI, usually use the panel method - Fed is CJS attorneys - State is conflict Kx attorneys (not primary, but chosen when COI arises)
Independent Source Doctrine
If evidence is initially found during an illegal search, but the same evidence is later found independently from activities untainted by the illegal search, that evidence is admissible. (Murray)
Severance - Rule 14 - Severance
If joinder appears to prejudice either party, motion for TC discretion to sever into two. Severance gives discretion; misjoinder requires
Independent Source Doctrine
If later, lawful seizure is genuinely independent of earlier tainted one
Inventory Searches
If not motivated by an investigatory motive (SUBJECTIVE) and following a standard procedure
Inevitable Discovery
If police can demonstrate that they inevitably would have discovered the evidence without a violation of the Fourth Amendment, the exclusionary rule does not apply and the evidence is admissible. (Nix)
Acevedo
If you have probable cause to search a container, and that container is in the vehicle, then you have probable cause to search the vehicle to find the container. Then it can be opened. Once you find it, you must stop.
Vehicle Passengers
If you have probable cause to search a vehicle, you can search the belongings of the passengers as well.
Carpenter
If you knowing give off location data to your cell phone company, you have no reasonable expectation of privacy in it.
6th Amendment - Speedy Trial
In all criminal prosecutions, accused shall enjoy the right to a speedy & public trial
remove offenders from society
Incapacitation
Unknown Informants
Indicia of Reliability: Corroboration of Description + Illegality of activity
Known Informants
Indicia of reliability: Basis of Knowledge + Voracity (Reliability)
Legal or Proximate Cause
Intervening causes or outside factors that causes a victim's death: -concidental Intervening Acts -Responsive Internvening Acts
Civil Law
It is a "branch of the law that protects the individual rather than the public interest." Also, it is "[a] legal action...brought by an individual rather than by a state prosecutor."
United States v. Jones
It is a search if the government physically occupies or intrudes upon private property (trespasses) for the purpose of obtaining information.
KATZ-JONES Test
JONES [1] physical intrusion; [2] into a constitutionally protected area; [3] without the owner's content; [4] for the purpose of obtaining information KATZ Defendant has [1] a subjective expectation of privacy; [2] which is objectively reasonable
Bruton Rule - Confrontation
Joint trial, one co-D's statement implicates another, right demands that separate trials Remedy requires severance, scrubbing testimony, or separate juries
Dr. Turner
Jones v. United States 1962 , there was in fact another individual who owed a duty of care to the deceased child: Anthony Lee Green, besides the defendant/appellant, the defendant/appellant's girlfriend, Shirley Green, and possibly the biological mother of the child. Who was that fourth person who owed the deceased child a duty of care?
Public Safety Exception [Miranda]
Miranda warnings not required Applies when Officers ask questions reasonably prompted by a concern for public safety Objective standard Officer's intent not solely to obtain/extract an incriminating statement
Missouri v. Seibert
Missouri Two-Step When an interrogator uses a deliberate two-step strategy (like the Missouri Two-Step) predicated upon violating Miranda during an extended interview, post-warning statements that are related to the substance of pre-warning statements must be excluded absent specific, curative steps. Curative steps include a lapse in time, use of different officers, additional warnings that statements were inadmissible.
Purposely
Most serious, on purpose and deliberitely. Specific intent.
Checkpoints
Must be neutral in application (no reasonable suspicion is necessary) 3 Prong Balancing Test: [1] States interest in preventing harm [2] Effectiveness in achieving goal [3] Level of intrusion on individual privacy Goal is public safety, not criminal investigation Sobriety checkpoints = Good Drug checkpoints = Unconstitutional
Invocation of Miranda right to counsel (PRE-INDICTMENT)
Must be unambiguous once made questioning must cease defendant can reinitiate questioning once released, officers cannot question again for 14 days
Exclusionary Rule
N/A to judicial misconduct Excludes evidence of illegal search or coerced confession Whether actual illegal search had any effect in producing warrant whether decision to get warrant was solely obtained from illegal evidence ability to deter officer misconduct outweighs cost to society of letting criminals go
Requisition of Officer from another jurisdiction
NO written agreement necessary(unlike mutual aid). This authority is granted to the OIC in each community. responding officers have full arrest powers upon arriving to said jurisdiction.
Determining Pretrial Release v. Detention - Factors
Nature & circumstances of the offense; Weight of evidence against D; History & characteristics of D; and Nature & seriousness of danger to any person by D's release
Do search warrants allow police to search persons found on the premises are not named in the warrant?
No.But if police have probable cause to arrest a person discovered on the premises to be searched, they may conduct a warrantless search of her incident to ARREST.
1. Fighting words 2. incitement ot violent action 3. threat 4. obscenity 5. libel 6. (child pornography)
Not Protected Speech
Right to Jury Trial - 6th Amendment
Not absolute - Only applies to serious offenses, not petty offenses - Serious offense = 6+ Mo. - Multiple petty > 6+ Mo. doesn't count
D's rights to enforce plea
Not any until after court accepts the D's guilty plea; Most judges believe in fairness - 10th Cir no
Presumption of Innocence
Not guilty until P-beyond a reasonable doubt-proves so to a fact-finder in a court of law Not required as a jury instruction No one believes this actually happens anyway
Felony, Misdemeanor
Number of approacches to categorizing crimes. The most significant distinctions are between these two
Which of the following is true regarding how Officer Jones detained the suspect?
Officer Jones detained the suspect like an arrest was being made
Which of the following is true about when the suspect was locked in the back of the police cruiser?
Officer Jones immediately violated the suspect's Fourth Amendment rights when he locked him in the police cruiser
Officers outside of their jurisdiction
Officer may always go outside their jurisdiction to conduct investigative activities, so long as they do not detain or arrest a suspect.
Executing Search warrants(Dwellings)
Officers must have PC to search the actual dwelling before they secure it. Actively seek the warrant before, or at minimum, while securing the premises. The preparation of a warrant application safeguards against premature police intrusion into a home. (2) ways premises are secured, outside or inside: Controlling the outside perimeter if any evidence located within an unoccupied dwelling can be fully protected. If securing a dwelling from the inside, they must have specific info supporting an objectively reasonable belief that evidence will indeed be removed or destroyed, unless protective measures are taken.
Inevitable Discovery
Officers would have discovered the evidence despite original misconduct
Invocation of Miranda right to remain silent
Once invoked questioning related to that crime must cease Officers must "scrupulously honor" request, cannot badger defendant to waive right Exception: Defendant can reinitiate questioning If defendant doesn't invoke or waive officers may continue questioning Actions (like speaking) may constitute waiver Must have been read Miranda Rights
Oliver v. United States
One has no reasonable expectation of privacy in "open fields," nor is it a "trespass" under the Jones test.
For Fourth Amendment purposes, a seizure of a person occurs:
Only if under the circumstances a reasonable person would believe he is not free to leave
Right to Speedy Trial - Speedy Trial Act
Only to Feds 70 day deadline starts at time of indictment Many exceptions that will toll the time
Open Fields
Open fields are outside of the curtilage and are not protected by the Fourth Amendment
Kyles v. Whitley
P has duty to learn of any favorable evidence from all government agencies. D has no duty to ask
No-Knock warrant
PC and safety, escape, or destruction of evidence. The knock and announce rule may be suspended when officers have PC that their announcement will jeopardize the safety of officers or persons inside, result in the escape of a person sought, or lead to destruction of evidence.
Scope of search warrants
PC to search a dwelling, automatically includes the portion of the cellar or attic used by occupants. search covers a garden or other area within the curtilage of the home. vehicles locate within the curtilage that are owned or controlled by occupants can be searched(this never extends to vehicles parked on a public street and not in the curtilage).
Seizure
PERSON: physical restraint OR show of authority + submission PROPERTY: meaningful interference with a persons interest in his property
suspention of a sentence
Pardon
Passengers and visitors
Passengers and visitors have no reasonable expectation of privacy
Kellogg wasn't homeless, he was capable of 'making plans to avoid being found drunk in public.'" Cruel punishment based on his drunkess, more for posing a threat to society and he was convicted Disorderly Conduct Statute his "conduct...spill[ed] into public areas" "posed a safety hazard" both to himself and to the general public.
People v. kellogg case v. Robinson v California outcome
Private Dwelling: need warrant, consent or exigent circumstances.
Police must have a warrant, consent, or exigent circumstances to enter and arrest a person in their home. this rule applies to overnight guests, but not visitors. Mass. does not recognize out of state warrants for this purpose. Officers must knock and announce their presence and purpose prior to entering a home and must have reasonable suspicion their suspect is home.
Accused in another's home
Police must have an arrest warrant for an overnight guest and a search warrant, consent, or exigent circumstances to justify entering home of a third party.
Dog Sniff at Traffic Stop
Police officer may not prolong a traffic stop in order to dog sniff if the purpose for which the stop was initiated has been completed.
Petite Policy - Test
Policy that limits F prosecution after S prosecution. Substantial fed interest; Interest left demonstrably un-vindicated; AND Gov believes D's conduct Fed offense Decision completely left up to DOJ
Constitutional Political System
Political system in which the powers of the various branches of government are defined by a constitution. In the United States, the rights and liberties of the people also are set forth in Bill of Rights to the U.S. Constitution.
1. Actual Possession 2. Constructive Possession 3. Joint Possession 4. Knowing Possession 5. Mere Possession
Possesion typically define as to excersice dominion and control over objects, what are it categories:
Hoffa
Pre-Katz What you tell another person is not private and will not remain so. Even if this conversation occurs in the home.
Critical Stages - When Right to Counsel Applies
Preliminary hearing; post-indictment lineup; plea-bargain; sentencing; new trial motion after conviction; probation revocation w/ sentencing
6th Amendment Speedy Trial Prejudice
Preventing oppressive incarceration; Minimizing the anxiety & concern of accused; Potential impairment to the D
Retroactivity of Judicial Decisions
Principle that a U.S. Supreme Court judgment should be retroactively applied to all cases that are yet to be filed and cases that already have been filed.
Constitutional right to privacy and same sex relations between consenting adults in the home. Balance the freedom to be let alone
Privacy
1. sanctity of the home -free of government instrusion 2. intimate activities - freedom of personal choices personal lifestyle, body and reproduction 3. information - prevent the collection/ disclosure of informatioin to prive industry, public, and gov. 4. public portrayal - prevent your picture or endorsement from being used in an advertisement w/o permission or prevent your life from being falsely protrayed.
Privacy Protections
Whren*
Probable cause is an OBJECTIVE standard and does not look at subjective motivations of police officers.
Illinois v. Gates
Probable cause is determined by the totality of circumstances. "fair probability" "Substantial chance" "common sense decision"
Recklessly
Purposely engages in risky behavior, yet not expect to create injury or harm. Mental State: Disregard of common sense
Retribution, Deterrence, Rehabilitation, Incapacitation, Restoration
Purposes of Punishment
Which of the following is protected by a reasonable expectation of privacy?
Purses or backpacks
Definitions Probation/Parole
Probation: generally in lieu of incarceration Parole: conditional release from prison to serve the remaining sentence in community
Which of the following rights is discussed in the Eighth Amendment?
Prohibition of cruel and unusual punishment
8th Amendment
Prohibits: cruel and unusual punishment excessive bail (no constitutional right to bail, only against excessive bail)
Selective Prosecution
Prosecution in violation of the Equal Protection Clause of the Fifth and Fourteenth Amendments, which protect individuals from prosecution because of their race or their gender or the exercise of their fundamental rights.
Why did the Supreme Court decide that curtilage is not protected by the Fourth Amendment from aerial surveillance?
Protecting an area from one view does not protect it from all views
Sixth Amendment: Massiah
Protects against compelled testimony OFFENSE SPECIFIC Triggering Facts: [1] Adversarial judicial proceedings (once initiated waiver of miranda = waiver of massiah) [2] Deliberate elicitation by officers Waiver must be voluntary, knowing, intelligent N/A to physical evidence - has FOPTD
Quarles
Public safety exception to Miranda -- objective police officer
deterrence, retribution, incapacitation, education and treatment rather than rehabilitation
Purpose of punishment
Mens rea - Penal Code
Purposely Knowngly Recklessly negligently
Alabama v. White
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.
1. individual self-fulfillment to express ideas and creativity 2. marketplace of ideas, diversity of views to express ideas to reach a decision 3. promotes social stability allowing ind to be heard and influence the political and policy process. 4. Steady stream of innovative ideas and gov to id and add newly issues.
Reasoning behind Freedom of Speech 1st Amendment
*prosecuting for an act was lawful, that now isn't *aggravate crime, than when committed changes punishment *to inflicts greater punishment than when act was committed *alter legal rules, in order to convict
Reasons to creat an Ex Post Facto law
believe people are essentially good and can be transform their lives
Rehabilitation
Exigencies
Requirements: [1] Probable cause to believe exigency exists [2] Exigent circumstance [a] destruction of evidence [b] threat to safety Scope of search is determined by the nature of the exigency Once arrest occurs search is limited to defendant's reach
Consent
Requirements: [1] Voluntarily given [2] Not the result of coercion Must be given by one with apparent authority over the premises Search cannot exceed scope of consent/consenting person's authority
Plain View
Requirements: [1] legitimate and lawful presence [2] Immediately apparent criminal nature
Salerno - Gov Standard
Requires detention if Gov shows by clear & convincing evidence that no conditions reasonably assure safety of community
Federal Detention - Generally
Requires detention of D only if judge determines that no conditions/combinations exist that would reasonably assure safety of any other person & community Judge must impose least restrictive conditions available to reasonably assure appearance & safety
Probable Cause for a Warrant
Requires sufficient information for the magistrate to make a common sense evaluation of probable cause independent of the officer's conclusion that evidence of a crime will be found
Wire Tapping/Eaves Dropping
Requires warrant Exceptions: [1] Unreliable Ear - third party corroboration with police [2] Uninvited Ear - conversation takes place where there is no reasonable expectation of privacy
Dump
Respondent's stepfather in the 1989, North Carolina case of State v. Fields. Stepfather's name?
stresses on the harm done, and financial restitution to victim and community
Restoration
Harmless error analysis
Reversal not required if P shows that error was harmless beyond a reasonable doubt
5th Amendment
Right against self incrimination Right to due process Right to a jury trial Right to counsel Right to confront witnesses in a criminal prosecution
Which of the following answer describes the rights stated in the Fourth Amendment of the United States constitution?
Right against unreasonable search and seizures
Which of the following rights did NOT come from the Magna Carta?
Right against unreasonable search and seizures
6th Amendment
Right to: Speedy trial Public trial jury trial counsel confront witnesses in a criminal prosecution
Confrontation - Trumps Hearsay
Right trumps hearsay exception when OOCS is testimonial; not if statement is non-testimonial To discern, look to primary purpose of the OOCS & why the statement was given
unconstitutional impose sentence on his status offense of narcotis addiction.
Robinson V. California
1. Ban of Bill of Attainer & Ex Post Facto Law 2. Statutory Clarity
Rule of Legality based on two criminal statutes
Which of the following is true about the frisk of the front seat passenger?
Search of the passenger's outer clothing was reasonable since driver had bullets he could have a gun
What is the rule regarding police searches when conducted without a search warrant?
Searches without a warrant are presumed to be unreasonable
Double Jeopardy - General Protections
Second prosecutions after:(1) acquittal; (2) conviction; or Multiple punishments for same offense w/in same proceeding
-purpose of punishments -judicial discretion -thruth sentencin -greater victims protections -death penalty -term of years -equal proteciton
Sentencing Revolution
1. Felony 2. Life Felony 3. Felony in the 1st Degree 4. Felony 2nd Degree 5. Felony 3rd Degree 6. Misdemeanor 1st Degree 7. Misdemeanor 2nd Degree
Seven distinct categories of felonies and misdemeanors that are punishable under Florida Law.
1.English and American Common Law 2. State Criminal Codes 3. Municipal Ordinances 4. Fed Criminal Code 5. State & Federal Constitutions 6. International Treaties 7. Judicial Decisions
Seven very important "...sources of the criminal law in the United States." P 5 & 6
Fifth Amendment
Shall not be held to answer for a capitol or otherwise infamous crime, unless on presentment or indictment of a grand jury, except cases arising in the Land or naval forces, or Militia. 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 without due process
Which of the following is the most accurate characterization of Chief Justice Rehnquist's court?
Sharply limiting protections for criminal defendants and expanding police powers
MI v. Bryant
Shooting V; ongoing emergency
1962 The Model Penal Code
Significance degree in the definition of crimes in state codes due to the American Law Institute, lawyers, judges, and scholars.
What was the holding of California v. Greenwood?
Society does not accept as reasonable an expectation of privacy in a trash can left in an area accessible to the public
Fourth Amendment Analysis
Standing + Search/Seizure + Reasonableness + Exclusionary Rule
New Judicial Federalism
State supreme courts interpreting state court constitutions often provide defendants with more rights than have been required by the U.S. Supreme Court in interpreting a similar clause in the U.S. Constitution.
Void of vagueness -speeding, not speed limits specified it was up to officers interpretation to sanction. It was held, based on the street characteristics that placed others on danger due to this driving.
State v. Stanko
Before the Civil War, which of the following is an accurate description of Supreme Court decisions regarding the rights of state citizens?
State's rights and federal rights were considered as two separate rights
Harris v. New York
Statements in violation of Miranda can be used for impeachment
Clarity, Definite Standards for Law Enforcement, and Void of Vagueness.
Statutory Clarity - 5th and 14th Amendment's prohibit deprive ind. Of life, liberty property w/o due process. Due process. What are the three components?
Served a child abuse sentence, a law became inactive and the court attempted to enforce after the his sentence completition. Became unconsitutional and reverse.
Stogner V. California, What is the relation with Rule of Legality?
Supervisory Authority
Supreme court has the authority to direct lower federal courts to follow rules that are not based on the US constitution.
TRUE
T/F: 1. Methods of punishments are cruel if they involve torture or lingering of death, death penalty not one.
Batson Challenge Remedy
TC Discretion: - Re-sit the juror; new venire; preclude offending party more challenges; contempt; disciplinary; etc.
TRUE
TRUE OF FALSE: Victims - greater role and more protections
Factors for Attenuation (Brown)
Temporal Proximity Intervening Events Flagrancy of the Violation
Terry Stop
Temporary detainment; requires reasonable suspicion that defendant is armed and dangerous Requirements: [1] reasonable suspicion [2] valid stop (apparent criminal nature) Car Frisk
prison sentences to the crime seriousness
Term of years must be ...
fleeting
The ____________________ possession rule is a limited exception to criminal possession. This permits an innocent individual to momentarily possess and dispose of an illegal object.
Which of the following is NOT a factor to consider when determining if an area around the outside of the house is cartilage?
The area is being used for business purposes
statutory law
The body of law enacted by the legislative bodies
What is the "State Actor Doctrine"?
The constitution protects its citizens only from the conduct of government officials
The 5th Amendment applies in what part of an investigation?
The custodial investigation
Particularity as to places to be searched in a warrant
The description in a warrant is adequate if it is unlikely that the wrong place will be searched. It is not necessary that the name of the owner/occupant appear in the warrant, so long as the premises are properly described. Comm. vs Dinnal: (warrant upheld which described the premises, but named the owner/suspects as John and Jane Doe.
Administrative inspections and searches
The fourth amendment and Article 14 allows warrantless administrative searches of closely regulated industries. These searches must comply with statutory guidelines, failure may be a crime. It is not unconstitutional for officers to engage in an administrative inspection even when they are suspicious that criminal activity is occurring on the premises. Once an inspection reveals evidence of a crime, authorities must stop and obtain a search warrant.
Which statement is true regarding the frisk of the driver who fled?
The frisk was not reasonably related to the reason for the stop
A lawful plain view search requires two elements, the first element is that the law enforcement must be at a place she had a right to be, what is the second element?
The officer immediately recognized the object of the search was evidence or contraband
Lawfully impounding vehicles
The police must impound or control vehicles. Reasons for impounding vehicles: abandonment - enables officers to take possession of a vehicle abandoned more than 72 hours. Arrest - vehicle is often impounded after the motorist is arrested. Illegally parked or unsafe. Officers must consider reasonable alternatives to towing before they do.
Miranda v. Arizona
The prosecution may not use statements stemming from custodial interrogation of the Defendant unless it demonstrates the use of procedural safeguard to secure the privilege against self-incrimination.
DUAL SOVEREIGNTY
The sharing of power between the federal and state governments is termed _____________ . "Old fashion federalism,
ID procedures(show up)
The showup is the most frequent police ID method. reasonable suspicion is the minimum amount of info officers must have in order to detain.
Officer Jones is on routine patrol in a parking lot of shopping mall in south Lincoln which has a low incident of crime. While driving through the parking lot, Officer Jones saw a car with three people inside parked in the furthest area of the lot from the mall. Officer Jones slowed down to look closely at the occupants and the driver suddenly ran out of the car. Officer Jones chased down the driver and handcuffed him. After cuffing, Officer Jones searched the driver and found bullets inside his front pants pocket. Returning to the car, the driver was locked in the back seat of the police cruiser which has bars on the windows and cannot be opened from inside. Officer Jones order the front passenger out of the car and frisked him finding a handgun in his coat pocket. Then he ordered the backseat passenger out of the back seat and frisked him too and found methamphetamine inside his front pant pocket. After handcuffing the passengers, additional officers guarded them on the curb. Officer Jones then searched the car. He found a handgun under the driver's seat and stolen cell phones in the truck of the car which was a sedan. Which of the following is true?
The stop of the driver was not based on reasonable suspicion of criminal activity
What is the possible violation of the suspect's Fourth Amendment right in this situation?
The suspect was illegally arrested without probable cause
Houston
The use of technology that merely lets humans do their job more efficiently does not transform a non-search into a search.
Utah v. Strieff
There was enough for attenuation looking at the "brown" factors. Although the temporal proximity was close, the warrant was and independent intervening cause that broke the causal chain and the violation was not too "flagrant."
Supremacy and Preemption Doctrine
This "...Clause of the U.S. Constitution provides that federal law is superior to a state law within those areas that are the preserve of the national government. This [concept] is termed the _______________________ & ________________________________.
Mala Prohibita Crimes
This crime classification includes offenses such as tax evasion, carrying a concealed weapon, leaving the scene of an accident, and being drunk and disorderly.
involuntariness or involutary acts
This criminal defense used with charge of criminal negligence while operating a motor. [s]ome defendants have actually managed to be acquitted by persuading judges or juries that their crimes wereWhat is this criminal defense called?
Public Safety [EXIGENCY]
Threat to officer or public at large (health/safety) Help potential victim
Pinging Cell Phones
To acquire a cell phone's location history, officers must typically obtain a search warrant. An emergency may justify acquiring and using CSLI without a warrant.
Police Information/Second hand sources
To prove an officer's source of info, one must have Veracity: meaning the person is generally worthy of belief & Basis of knowledge: meaning the info provided is most likely accurate.
Voluntary Confession
Totality of circumstance approach: conduct of officers (length/tactics) and defendant's characteristics/susceptibility Degree of influence exerted will render statements inadmissible Involuntary statements cannot be used to impeach
Illinois vs. Gates
Totality of the circumstances test to determine if probable cause exists. Typically someone has to look at everything going on to make a determination if PC exists
Fifth Amendment: Miranda
Triggering Facts: [1] Custody [2] Interrogation Waiver must be voluntary, knowing, intelligent Miranda suff. infoms D of 5th + 6th rights N/A to physical evidence - NO FOPTD NOT OFFENSE SPECIFIC Cannot waive right to counsel once invoked
Spouse/Family consent to search dwelling(continued)
Unmarried or estranged couples, one person may consent to the search of premises jointly occupied by both. Adult family members are assumed to have authority to admit police to look around their residence since family members typically have the run of the house. Parents may consent to a search of their child's property if they have access. This is true whether the child is a minor or adult.
Consent to Search
VOLUNTARY; not necessarily knowing--police do not have to inform; can be limited in scope or withdrawn
Due process require criminal statutes be clear and understandable, if fails to this unconstitutional
Void of Vagueness
1962 The Model Penal Code
What are they talking about? People ask how students can study the criminal law of the United States, fifty state and a federal government... and there is a significant degree of agreement in the definition of crimes in state codes due the American Law Institute, a group of lawyers, judges, and scholars".
Crime
What the law declares to be a criminal offense and punishes with a penalty.
Under the Illinois v. Wardlow decision, police could detain a person under which circumstances?
When a person runs from the police without provocation in an area of criminal activity
Edwards v. Arizona
When a suspect invokes his right under Miranda to consult with an attorney prior to interrogation, the suspect is not subject to further interrogation UNTIL: i. counsel has been made available to him; or ii. the accused initiates further communication, exchanges, or conversations with the police.
Plain Feel Doctrine
When an officer lawfully pats down a suspect's outer clothing and feels an object that's incriminating nature is immediately apparent, they can seize it. (Dickerson cocaine); (Craddock key fob)
Particularity as to places to be searched in a warrant
When police know or should know that a building contains more than one apartment, they must specify which apartment they have PC to search. A description that applies to more than one unit is invalid, unless: The suspect has access to all the units in the house, the police were legitimately unaware of the layout. NO independent search into the layout of the dwelling required. Police should are not required to jeopardize their investigation by going inside the building before seeking a warrant and they do not have to interview the owner of the building or take other steps that might disclose the reason for the interest in the premises.
Kyllo
When the government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and presumptively unreasonable without a warrant.
When is a warrantless arrest in an arrest okay?
When the govt. can show exigent circumstances justifying the in-home search
Greenwood
When you place your garbage on the curb for pickup, you have no reasonable expectation of privacy in that trash.
Reasonable Suspicion
Where a theory is objectively justifiable based on the totality of the circumstance
Boston
Where in the US, 1846 did the first recorded use of the affirmative defense of "sleepwalking" occur?
Intervening Act of Free Will on part of defendant
Where the defendant voluntarily comes in and makes statements (late, after original officer misconduct) Voluntary Confession
Custody
Would reasonable person feel deprive of freedom to leave/under restraint Formal arrest or functional equivalent (inherently coercive pressures like those from station house) When suspects freedom of action is curtailed to degree associated with formal arrest loot at from perspective of reasonable defendant
If the police unlawfully arrest a suspect, then give him Miranda, interrogate him and obtain a confession, may the defendant suppress his statement?
Yes, as fruit of the poisonous tree.
Can a passenger in an automobile that was unlawfully stopped raise unlawful stop in an attempt to suppress admission of evidence found on passenger?
Yes, because the stop and seizure was also of the passenger too.
Arrests made in a home are always invalid without a warrant?
Yes, there is a presumption that all warrantless arrests are invalid, but the presumption can be rebutted.
May statements obtained in violation of Miranda be used at trial?
Yes, to impeach the Defendant if he takes the stand and testifies in a manner contrary to his confession.
Border Searches
You can be searched without probable cause or reasonable suspicion just by virtue of being at the border. (Flores-Montano) and also a phone can be cursorily searched under Caballero.
Arizona v. Hicks
You can seize an object in plain view if: (1) you are lawfully in an area where the evidence can be seen; (2) you have probable cause to believe it is contraband; (3) the incriminating nature of the object is immediately apparent.
Smith v. Maryland
You have no reasonable expectation of privacy in the phone numbers you dial.
Properly Executed Warrant
[1] Executed by authorized personnel [2] Knock & Announce Rule [3] No use of excessive force Evidence is still admissible even where officers violate the knock and announce rule if the warrant is valid
Exceptions to the Warrant Requirement
[1] Exigencies [2] SILA [3] Car search exception [4] Plain View [5] Consent [6] Terry Stop [7] Administrative searches
Exceptions to the FOPTD
[1] Independent Source Doctrine [2] Inevitable Discovery Doctrine [3] Intervening Act of Free Will on part of defendant [4] Attenuation of taint
Exceptions to the Exclusionary Rule
[1] Inevitable Discovery [2] Independent Source Doctrine [3] Attenuation [4] Good-Faith Exception [5] Isolated Police Negligence [6] Knock & Announce
Kyllo Technology Rule
[1] Obtaining information regarding the interior of the home [2] via sense enhancing technology [3] that could not have otherwise been obtained w/out violating KATZ-JONES [4] where technology used is unavailable to the general public
Warrant Requirements
[1] Probable Cause [2] Neutral & Detached Magistrate [3] Particularity
Contextualism
a broad approach to interpreting constitutional texts that focuses on interpreting the document in light of current developments.
All persons present(search warrants)
a search of "any person present" may be authorized by a warrant if there is PC to believe that anyone present at the scene is a likely participant in crime. Factors include: premises to be searched are small, confined and private, nature of the criminal activity involves participants who constantly shift so that it is practically impossible for police to predict who will be there, items target are easily concealed(drugs)'. this search does not include the persons named in the warrant(must be specified in the warrant)
Brief
a written legal argument submitted to an appellate court. To write a summary of a case.
Authority to search
absent exigent circumstances, when one occupant objects and the other consents, police lack consent to enter. The ability of a co-tenant to prevent an entry or search only applies if he is present when police seek permission and he actually objects.
Stack vs. Boyle
bail is excessive when it exceeds an amount reasonably calculated to ensure the defendant's appearance at trial
Exclusionary Rule
bars evidence obtained after the initial mistake/doesn't not result in suppression of evidence obtained prior to the police mistake.
Entrapment
based on a simple concept: while it is necessary for police officers to set traps to catch those bent on committing crime, it is improper for them to instigate crime. Overreaching conduct by police constitutes entrapment(examples): aggressive persuasion, coercive encouragement, lengthy negotiations, pleading or arguing with def., persistent solicitation, or playing on sympathy or some other emotion.
Fourth Amendment
be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. warrants shall issue, upon PC support by Oath and affirmation.
Cause in Fact
but for" the defendant's act, would the victim have died? Direct connection
Failure to ID yourself
can be basis for arrest if the stop was lawful and the ID has an immediate relation to the purpose, rationale, and demands on a Terry stop
Packages
can be detained on reasonable suspicion; cannot open without a warrant; can do a dog sniff on it and get probable cause
911 Emergency System
can trace and expose individuals who call in.
In __________ cases, the fact the defendant and the victim are different races automatically entitles the defendant to question prospective jurors on racial bias.
capital
Particularity as to things to be searched in a warrant
clearly defining the evidence sought safeguards the rights of the individual whose property is being searched. If possible officers must specifically describe items to be searched. sometimes only a general description is possible when police have PC, but lack info about the specific form the evidence will take. (example: officers might reasonably expect that a search of a dealer's apartment will reveal documents that demonstrate drug dist., but be unable to give a more specific description of these documents.
Business or commercial premises
commercial premises are entitled to constitutional protection in those areas where the business owner holds legitimate expectation of privacy.(e.g, "employees only"). Public or Private clubs: clubs are treated the same as commercial premises.
Constructive Intent
commit reckless acts with harm that is naturally expected.
Fleeing Felon Rule
common law doctrine that police may use deadly force to apprehend a suspected felon who is fleeing the police.
Negligently
danger behavior in unawared of risk. Mental satae: not aware,
nolle prosequi
declaration made to judge by prosecutor dismissing the case
Nolle Prosequi
declaration made to the judge by a prosecutor dismissing the case against the defendant.
Show of Authority Seizure
demonstration of authority by LEOs in which they direct a suspect to halt, display his or her weapons, block the suspect's movement, or otherwise conduct themselves in a manner that would result in a reasonable person not feeling free to leave or otherwise terminate the encounter. The suspect must actually submit to the demonstration of authority.
Knock and announce rule
directs a police officer to "knock, identify himself as a police officer, and state his purpose" before entering a dwelling(3 purposes for this; prevent violent reactions by surprised occupants, prevent property damage, protect privacy. This only applies if entry is made by force. No set time to wait, after announcement is made.
open fields
distant from home
writs of assistance
docs from 18th century to assist in a search
Writs of Assistance
documents used by the 18th century American colonial authorities to compel individuals to assist in carrying out a search. A form of general warrant. Did not expire until 6 mos after the sovereign died.
the exclusionary rule ____________ when the police arrest or search someone ____________.
does not apply; erroneously but in good faith
Reliability
does the officer know the informant.
Total Incorporation
entire Bills of Rights is incorporated into the 14th Amendment Due Process Clause.
total incorporation plus
entire bill of rights along w othesr incorporated in 14h ammend due process clause
total incorporation
entire bill of rights incorporated
Eight Amendment
excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment
Constitutionalization
extension of the rights and freedoms in the Bill of Rights, relevant to criminal procedure, to the fifty states.
How must a defendant's confession be corroborated in order to convict the defendant.
extrinsic evidence that establishes the trustworthiness of the evidences
A narcotics investigator received information that Fat Fast Eddie was selling narcotics again. Fast Eddie was just released from prison for selling dope. The investigator went to Eddie's house late at night and sneaked up to the back side of the house, and looked into a window. The curtains were pulled together with about a 1 inch gap. The investigator saw Eddie cleaning a handgun at the kitchen table and two packages of what appeared to be cocaine. The investigator used this information to obtain a search warrant. Peering through the windows did not require a search warrant.
false
A police officer may NOT stop an automobile for a violation of a traffic law when the officer's true intent was to investigate if the car was involved in drug law violations.
false
A police officer stopped a car without observing any traffic violations or reasonable suspicion of any criminal activity. The officer stopped the car because a vice detective had reasonable belief the driver had solicited a prostitute. The driver was found to be intoxicated and arrested for drunk driving. This stop violated the driver's Fourth Amendment right.
false
After finding the drugs in the kitchen, the search warrant was completed and any search beyond that point is a general search and prohibited by the Fourth Amendment.
false
After the Katz decision, FBI agents could lawfully attach an eavesdropping inside a person's garage to hear a suspect's conversation.
false
All search warrants issued to search for illicit narcotics are automatically permitted to be executed without the police having to "knock and announce" before entering.
false
DEA agents accosted John Lee after he exited a commercial airliner at Epply Airfield. The agents accosted Lee because he was arriving from Los Angeles, a known source city for cocaine, he paid for his ticket in cash, checked no luggage, and his departing flight was the following morning. The agents asked Lee for his identification and ticket which he provided. Agents saw the name on the tickets did not match his identification. While retaining Lee's identification and ticket, Agents asked him to accompany him to an office nearby. Inside the office, Lee consented to a search of his backpack and the Agents found a pound of cocaine. However, this detain was a violation of Lee's Fourth Amendment right.
false
FBI agents attached a camera to a telephone equipped with a military-grade high power telescopic lens and use it for surveillance on "Big Tony" Soprano as he talked to his capos in a public park. A lip-reader decoded their conversations which lead to a search warrant of Big Tony's social club. The search warrant found illegal evidence of illegal bookmaking, loan sharking, and witness intimidation. This evidence is inadmissible because after the Kyllo decision the government is required to obtain a search warrant everytime sensory-enhanced equipment is used.
false
Federal courts cannot invalidate a state law or court decision which violate the federal constitution.
false
If a law enforcement officer detains a person, the officer may always search the person and his possessions for a weapon
false
If police have probable cause that evidence of a crime is inside a car, police must impound the car and obtain a search warrant.
false
If police have probable cause to search a car, that search is always limited to searching the passenger compartment
false
If police have received voluntary consent to search a house for stolen computers, then police may not search in closets unless the consenting party agreed to search that area.
false
Basis of Knowledge Prong
requires that an officer must indicate how the informant obtained knowledge of the criminal activity.
Hotel Clerks(right to consent to search)
hotel clerk may NOT consent to a search of a room occupied by a guest.(only valid if guests vacates the room). Tenants/roommates may consent to a search, except in areas where the suspect maintains exclusive control. Hosts, with respect to their guests, may consent to a search of any jointly used property or area. A private overnight guests maintains an expectation of privacy in his belongings until he is made aware he is no longer welcome.
Searches of dwellings
hotel/motel/college dorms considered dwelling even if they are temporary. If properly evicted, guest lose their rights to privacy.
Basis of Knowledge
how the informant has obtained the information.
Assume an officer has reasonable suspicion to conduct a Terry stop. Under what circumstances may the officer also frisk the person he has stopped?
if the officer reasonably believes the suspect is armed and dangerous
When may a conspirator be charged with a crime:
if the s/he "aided and abetted" the commission of the crime and liable for the reasonably foreseeable crimes of all other co-conspirators that were committed in furtherance of the conspiracy.
Invocation of Silence - Result?
immediate cessation of questioning for a "significant period of time" and NEW Miranda warnings Police must SCRUPULOUSLY HONOR the request for silence (Michigan v. Mosley)
14th ammendement
in 1868- equal rights to newly freed African American slaves
Misdemeanant
individual arrested for a misdemeanor.
Affiant
individual who swears to a warrant.
Encounters
informal police stop of individuals.
encounters
informal police stops
Payments or Promises for informants
informants may receive compensation, but not a contingent fee. paying them is a reasonable investigative practice that does not diminish a particular tipster's reliability. A contingent fee is prohibited because it require a conviction in order for the informant to get paid.
Anonymous Tip
information from an unidentified informant.
Hearsay
information that is derived not from the personal knowledge of the witness but from the repetition of what he or she has heard others say. Secondhand information that is communicated to the police.
General intent
intent to commit the criminal act without the need to demonstrate intent to violate the law
Private driveways and nearby areas.
is not within the curtilage if a visitor would naturally use it to reach the front or back door, especially when visible from a public street and access is not blocked by a gate.
Protective sweep
its a quick inspection of those places where a person might be hiding. Automatic sweep of immediate area following an arrest inside a building, officer may sweep the immediately adjoining area. To go beyond the immediate area, officers must have a reasonable suspicion that there may be someone who poses a danger.
Flying overhead with aircraft to observe property of another.
police do not violate an individual's privacy by engaging in aerial surveillance from a reasonable altitude consistent with FAA regulations.(compare to People vs. Snead; helicopter surveillance from an altitude of just 25 feet was unreasonable and illegal.
Improper tactics during interrogations/interviews
police may never mislead a suspect about the need for a lawyer, suggest that their interview is the only opportunity to speak with police, suggest that a suspect's failure to talk now will prevent him from testifying later, engage in plea negotiations with a suspect.
McArthur
police may prevent a person from entering the home when they have reason to believe that they may destroy evidence
Anticipatory warrant
police officers may seek a warrant in advance if they have PC that evidence will arrive at a certain location. this allows officers to grab evidence quickly when it arrives. The affidavit must outline clear, explicit, conditions for the warrants execution.
Hot Pursuit
probable cause to believe you committed a crime; cannot thwart by running into a home; there must be active pursuit; person must be aware they are being pursued (Santana); Circuit Split on whether felonies or misdemeanors count (Stanton)
Abandoned Property
property intentionally discarded by the owner.
Expectation of Privacy
protection from government intrusion. These areas may generally not be searched without a warrant. What a person knowingly exposes to the public is not protected, but what people expect to be kept private might be protected.
expectation of privacy
protection from govt intrusion
Supremacy Clause
provides that the Constitution, the laws of the US, and treaties shall be the Supreme law of the land, and gives the federal government priority over the state government when there is a conflict between federal and state laws.
Veracity(test for reliability)
refers to the informant's overall trustworthiness. can be demonstrated in 4 way. (1.) identified or identifiable citizens (2.) track record (3.) admission of criminal conduct (4.) corroboration. the fact a confidential informant previously gave info leading to a person's conviction demonstrates his veracity. A confirmed arrest also demonstrates veracity.
Legal Standing for Defendants
refers to the right of a defendant to object to the police conduct that produced the evidence. in order to challenge the validity of a search, his own constitutional rights have to be violated. Automatic standing is limited to possession crimes..
Search of MV's on public ways
the search may occur on the street, at a police facility, or in both location. typically search is completed on scene, but it is not a requirement. Sometimes safety, traffic or a lack of manpower makes towing the vehicle to a police facility the better option. A search may be made in a driveway, even if the vehicle is unable to be driven, due to access by others into the vehicle.
Brady vs. Maryland
the state must turn over exculpatory evidence they are aware of to the defendant
If a police officer makes a traffic stop as a pretext to investigate some other crime for which the officer lacks probable cause:
the stop will be valid so long as probable cause exists.
What is necessary for a search warrant to be constitutionally valid:
the warrant must be based on PROBABLE CAUSE and must describe with reasonable precision the place to be searched and the items to be seized.
Voluntary Statements
there are two types of incriminating statements: the spoken admission is the most frequent. it occurs when the suspect speaks to another person - civilian or police - and provides info that implicates him in a crime. An adoptive admission is any statement made in the presence of the suspect, where the suspect's response - whether orally, by gesture, or by revealing silence - indicates his acceptance. (3) essential rights: voluntary statements, warnings during custodial interrogation, and no interference with the attorney-client relationship.
Physical Intrusions
there must be an actual physical entry into the home or physical examination of an individual or his or her papers or possessions.
Body cavity searches
these type of searches require a higher standard than probable cause. the body cavity search must be: 1. issued by a judge, 2. supported by a "strong showing of particularized need and high degree of PC.
Under the exclusionary rule, if a search warrant was defective, the police can still use the evidence if:
they acted in good faith and reasonably relied on the warrant
A police officer who has probable cause to search a car for illegal narcotics may even search a passenger's coat for the drugs.
true
A precedent is when a court follows rules established by previous judicial decision
true
A search based on consent is still limited to searching places where the object of the search may be located
true
After police arrest a person who was inside a house, police may search the wingspan area where the arrested person was standing for evidence or means of escape immediately after securing the person.
true
After the Hodari decision, a police officer could chase a person without reasonable suspicion of criminal activity or probable cause that the suspected committed a crime without being in violation of the Fourth Amendment.
true
After the Hodari decision, whether the police officer had probable cause to arrest or reasonable suspicion to detain a person is not relevant until that person submits to authority
true
All passengers of a car stopped for a traffic violation may be ordered out of the car by the stopping law enforcement officer
true
All search warrants must be executed during legally established daytime hours unless the search warrant specifically states the warrant can be executed during nighttime hours.
true
Anonymous tips to the police that a person is possibly involved in criminal activity is never a reasonable basis to detain a person against her will without confirmation of the information.
true
Consent is validly waived if the person granted consent voluntarily even if the police had no reason to believe the person had any evidence or contraband in her possession
true
Officers suspected John Murphy was growing marijuana on his back patio. The officers looked at his back patio with binoculars from the public street and could not see what was on the patio because there was a six foot high privacy fence built around the back patio. So the officer's walked up to the fence and one officer boosted the other officer up so that he could look over the fence; they saw 40 marijuana plants being grown there. This search was unconstitutional because it required a search warrant?
true
Once a judge or magistrate issues a search warrant, police must serve the search warrant when the evidence is probably at the location but must be served within 10 days.
true
Police are NOT permitted to search a car of a person who just exited a car and was arrested for weapons or means of escape
true
Police are permitted to search not only the body of the person arrested but also the immediate area where the person arrested at even without probable cause evidence or means of escape exists.
true
Police are required to obtain a search warrant to search the inside of a person's luggage
true
Police do not have an exact time limit that they may detain a person for investigation as long as they are diligently investigating the circumstances
true
Police may search the smart phone of a person if that person had the phone in his possession at the time of the arrest and police have probable cause that there is evidence on the phone.
true
State court must uphold federal court decisions on all questions regarding federal rights and laws
true
The Fourth Amendment requirement that search warrants must "particularly describe the things to be seized" means that the description of the evidence must be precise enough that the police cannot determine during the search what may be seized.
true
The Miranda warnings are intended to protect a criminal suspect from making a false confession to a crime.
true
The Supreme Court is the final arbiter of what is federal law and state courts must follow its decisions
true
The Tenth Amendment provides that states may enact any law which is not reserved to the federal government or prohibited by the constitution
true
Authority to search
where two or more persons have equal rights to use the premises or property, each person may consent to a search because the expectation of privacy is distributed equally among those having JOINT ACCESS OR CONTROL over the property. Comm vs Farnsworth:(mother informed police that she had routine access to her son's room, so her consent could extend to a bureau and unlocked box in his room.
Definition of Custody
whether a reasonable person would believe they are in custody/free to leave
Interrogation
would reasonable officer see questions/statements as likely ot elicit incriminating response? express question or functional equivalent
