Criminal Procedure

IV. Search and Seizure - Issue Three (Warrantless Searches)

Is the warrantless search through which criminal evidence was gathered valid under any of the EIGHT exceptions to the warrant requirement?

V. Search and Seizure - Issue Four (Exclusionary Rule and Its Limits)

To what extent can prosecutors use the evidence gathered in an unconstitutional search and seizure against the defendant in court?

14th Amendment

(1) All persons born in the U.S. are citizens; (2) no person can be deprived of life, liberty or property without DUE PROCESS OF LAW; (3) no state can deprive a person of EQUAL PROTECTION of the laws.

Limitations on evidentiary exclusion as applied to Miranda violations:

(1) Incriminating statements obtained in violation of a suspect's Miranda rights are inadmissible in the prosecutor's case in chief but may be used to impeach the defendant's testimony on cross-exanimation. (2) Failure to give a suspect Miranda warnings does NOT require the suppression of the physical fruits of incriminating statements, provided the statements are voluntary. (3) If a statement is inadmissible due to a Miranda violation, subsequent incriminating statements made after obtaining a Miranda waiver are admissible, provided the initial, non-mirandized statement was not obtained through the use of inherently coercive police tactics or methods, offensive to due process. (4) If testimonial evidence that should have been excluded as volatile of Miranda was improperly admitted at trial and the defendant was conflicted, is the court required to vacate the guilty verdict?

Invoking Miranda rights:

(1) Invoking the right to remain silent: (a) Suspects must do so unambiguously invoke their right remain silent (b) Once the suspect invoke the right to remain silent, police officers must scrupulously honor the invocation. This means, at the very least, that the policy cannot badger a suspect into talking; in addition, police detectives must wait a significant period of time before reinitiating questions and must first obtain a valid Miranda waiver. (2) Invoking the Right to Counsel: (a) The request for counsel must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel. (b) Once a suspect asks for counsel (lawyers up), all interrogation must cease unless initiated by the suspect. (c) Unlike the 6th amendment the 5th amendment, right to counsel is not offense-specific, therefore, interrogation following a request for counsel under Miranda a is prohibited as to all topics, outside the presence of the suspect's attorney. (d) The request for counsel expires 14 days after a suspect is released from custody; a waiver of the Miranda right to counsel obtained after this period is valid, provided it is knowing, intelligent , and voluntary.

5th Amendment

(1) No Self-Incrimination (2) No Double Jeopardy (defendant cannot be tried again on the same, or similar charges) (3) No deprivation of life liberty or property without "due process of law" (fair treatment) 4) No one has to testify against them-self 5) Right to a Grand Jury

A valid Miranda waiver:

(1) Two core requirements: (a) Knowing and intelligent: a Miranda waiver is knowing and intelligent if the suspect understands: i. The nature of the rights and ii. The consequences of abandoning them. (b) Voluntary: a Miranda waiver is voluntary if it is not the product of police coercion.

Terry Frisks

(1) What is a terry frisk? It is a pat down of the body and outer clothing for weapons that is justified by an officer's belief that a suspect is armed and dangerous. (2) What can you seize in a terry frisk? If, during a terry frisk, an officer finds something she reasonably believes to be a weapon, it can always be seized. If instead, the officer finds something she recognizes as contraband without manipulating the object she can seize it as well. (3) Car frisks When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspect's vehicle, limited to those areas in which a weapon may be placed or hidden. (4) Protective sweeps: When making an in-home arrest, police may sweep the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety.

Terry Stops

(1) What is a terry stop? It is a brief detention or "seizure" for the purpose of investigating suspicious conduct. Note: Terry stops can take place anywhere, e.g, on the street, in a car, in an airport concourse, or on a bus. (2) When are you seized for 4th amendment purposes? 1. An individual is seized for fourth amendment purposes when based on a totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer's request to answer questions. 2. In evaluating whether an individual has been seized during questing by law enforcement, you should consider: (a) Whether an officer brandishes a weapon (b) The officers tone and demeanor when interacting with the person questioned; (c) And whether the individual was told she had the right to refuse consent. 3. Police pursuit and seizure When being pursued by a police officer, an individual is seized only if he submits to the officer's authority by stopping or if the officer tackles him. 4. Traffic stops - three important principles; (a) In a traffic stop, both the driver and the passenger are seized, such that either can challenge the legality of the stop. (b) In a traffic stop, the officer may, in her discretion, order both the driver and the passengers out of the car. (c) Dog sniffs at traffic stops are permissible provided the sniff does not prolong the stop unreasonable.

Probable Cause Standard for Officers:

(Officers must show that they have knowledge of reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law.

What evidentiary standards apply in protective sweeps?

(a) Whenever they are making an in-home arrest, officers have the authority, without probable cause or reasonable suspicion, to look in areas adjoining the place of arrest from which an attack could be immediately launched. (b) To justify a sweep of more remote areas, the arresting officers must have additional facts sufficient to allow them to conclude that individual who may threaten officer safety is present in the area swept.

Special needs

(special needs of law enforcement, governmental employers and school officials beyond a general interest in law enforcement.) A. Drug testing (the most prolific special needs category) The US Supreme Court has approved warrantless, suspiciously drug tests in a variety of contexts, including: 1. Railroad employees, following an impact accident 2. Customs agents responsible for drug interdiction and 3. Public school children who participate in any extracurricular activities. B. Parolees: warrantless, suspicion-less searches or a parolee and his home are permissible as a condition of parole. C. School searches: Warrantless searches of the person and the effects. (e.g., purses, backpacks) of public schoolchildren are permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds, provided the search is reasonable at its inception and is not excessively intrusive, in light of the age and sex of the student and the nature of the infraction. D. Government employees: Warrantless searches of government employees 'desks and file cabinets are permissible, provided the searches are reasonable at their inception and in scope. E. Border Searches: neither citizens nor non-citizens have any 4th amendment rights at the border, with respect to routine searches of persons and effects. F. Non-law-enforcement primary purpose test: The special needs doctrine does not include law enforcement programs or practices whose primary purposes is to gather criminal evidence for general use by law enforcement.

Fourth Amendment limits on the exclusionary rule:

1. Case in chief vs. cross examination: Unconstitutionally obtained evidence is excluded from the prosecutor's case in chief only; it may be introduced to impeach the defendant's testimony on cross-examination. 2. Knock and Announce violations: a failure to comply with the knock and announce rule does not require suppression of evidence that is subsequently discovered. 3. Police error: to trigger the exclusionary rule, erroneous police conduct must be deliberate, reckless, or grossly negligent. 4. Officer's reasonable mistakes: the exclusionary rule does not apply to evidence obtained erroneously when executing a search warrant, provided an officer's mistake was reasonable.

Question 1: Was the search or seizure executed by a government agent?

1. Publicly paid police, on or off duty; • Additional categories of potential government agents: 2. Private citizens, if (and only if) they are acting at the direction of the police. 3. Private security guards, but only if they are deputized with the power to arrest. (i.e. campus security at public universities) 4. Public school administrators, e.g., principals; vice principals

What evidentiary standard applies to terry stops and frisks?

1. Reasonable suspicion, which is less than probable cause. (a) How does this stand apply in terry stopes? It requires specific and articulable facts that inform an officer's belief that criminal activity is present. i. An officer's subjective intent is irrelevant in evaluating the legality of the stop; the 4th amendment is concerned solely with its objective reasonableness. (b) How does this stand apply in Terry frisks? It requires specific and articulable fact that suggest that a suspect is armed and dangerous. REMEMBER: a terry frisk is justified by a concern for officer safety only, it is not a general search for criminal evidence. (c) Can informants' tips satisfy this standard? YES, provided the tip contains sufficient predictive information, corroborated by the police, to establish the information's reliability.

Question 2: Was the search or seizure of an area or item protected by the 4th Amendment?

1. The 4th Amendment expressly protects individuals from unreasonable searches and seizures of their: A. Persons - (bodies) B. Houses - (including hotel rooms) C. Papers - (personal correspondence); and D. Effects - (personal belongings, purses, backpacks, cars) 2. The protection of "houses" includes the "curtilage", an area adjacent to the home "to which the activity of home life extends." 3. Unprotected items: A. There are certain categories of items whose routine exposure to third parties renders them sufficiently "public" in nature that they merit no 4th Amendment protection, even if they are searched or seized by government agents.

An officer's good faith overcomes constitutional deficits in probable cause and particularity. However, there are four categorical exceptions to the good faith doctrine:

1. The affidavit supporting the warrant application is so egregiously lacking in probable cause that no reasonable officer would have relied on it. 2. The warrant is so facially deficient in particularity that the officers could not reasonably presume it to be valid. 3. The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding. 4. The magistrate who issued the warrant is biased in favor of the prosecution

Question 3: Did the government agent either (a) physically intrude on a protected area or item to obtain information; or (b) violate an individual's reasonable expectation of privacy in a protected area or item?

1. Trespass-based test: the agent physically intruded on a constitutionally protected area in order to obtain information; or 2. Privacy-based test: The agent's search or seizure of a constitutionally protected area violated an individual's reasonable expectation of privacy.

II. Search and Seizure - Issue One (Threshold Fourth Amendment Issues) - Is the search or seizure governed by the Fourth Amendment?

1. Was the search or seizure executed by a government agent? 2. Was the search or seizure of an area or item protected by the 4th Amendment? 3. Did the government agent either; a. (a) physically intrude on a protected area or item to obtain information; or b. (b) violate an individual's reasonable expectation of privacy in a protected area or item? 4. Did the individual subjected to the search or seizure have "standing" to challenge the government agent's conduct?

Grand Juries

1. What do they do? a. They issue indictments 2. Are their proceedings public? a. NO. They are secret 3. Do states have to use grand juries as part of the charging process? a. NO

I. Search and Seizure - Four Global Issues

1. Whether a search or seizure is governed by the Fourth Amendment; 2. Whether a search or seizure conducted with a warrant satisfies Fourth Amendment requirements: 3. Whether a search or seizure conducted without a warrant satisfies Fourth Amendment requirements; and 4. The extent to which evidence obtained through a search and seizure that violates the Fourth Amendment is nonetheless admissible in court.

Preliminary hearings

A pretrial hearing to determine probable cause (sometimes called a Gerstein hearing) is unnecessary to justify pretrial detention if: A. The grand jury has issued an indictment; or B. A magistrate has issued an arrest warrant.

There are three federal constitutional challenges that can be brought to exclude a confession:

A. 14th amendment due process clause B. 6th amendment right to counsel C. 5th amendment Miranda doctrine

The four exceptions to the double jeopardy rule that permit retrial:

A. A hung jury. B. A mistrial for manifest necessity. Example: Retrial was permitted based on manifest necessity where a defect was found in the indictment during trial that could not be cured by amending it. C. A successful appealed the conviction, unless the reversal on appeal was based on the insufficiency of the evidence present by the prosecution at trial or D. A breach of the plea agreement by the defendant.

The first appearance soon after arrest, a defendant must be brought before a magistrate who will:

A. Advise him of his rights B. Appoint counsel, if necessary, and C. Set bail i. To comply with the constitutional prohibition on "excessive" bail, the amount should generally be no greater than what is necessary to ensure the accused's presence at trial; however, bail may be denied, and the accused detained pending trial, based on proof of danger to the community.

When does an arrest occur?

A. An arrest occurs whenever the police take someone into custody against her will for prosecution or interrogation B. It is considered a de facto arrest when the police compel someone to come to the police station for questioning or fingerprinting.

Sentence Enhancement

A. Any fact that increases either the statutory maximum or the mandatory minimum sentence for a crime must be found by the jury not the judge. (1) However, the decision as to whether sentences for multiple crime are to run consecutively or concurrently may be made by the judge.

Search incident to arrest

A. Arrest (also called a "custodial arrest) must be lawful. B. Timing: the search must be contemporaneous. C. Geographic scope: the wingspan, which includes the body, clothing, and any containers within the arrestee's immediate control without regard to the offense for which the arrest was made. (1) Cell phones: police may not, without a warrant, search digital data on the cell phone of an arrestee; however, they may examine the cell's physical aspects to ensure that it will not be used as a weapon. (2) DNA evidence: Police may lawfully take a DNA sample by swabbing the check of an individual arrested for a serious offense. D. Automobiles searched incident to a custodial arrest: (1) PERMISSBLE SCOPE: passenger's container including closed containers, but not the trunk. (2) SECURE versus UNSECURED arrestees: Once an officer has "secured" an arrestee (by, for example, handcuffing him and placing him in the squad car), the officer can search the arrestee's vehicle only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made.

What is the scope of this testimonial privilege?

A. Because this is a testimonial privilege, it disallows negative prosecutorial comment on: (1) A defendant's decision not to testify at his trial and (2) A defendant's invocation of his right to silence or counsel (a) However, prosecutors may comment negatively on noncustodial silence during police interrogation of a defendant who has not invoked his Miranda rights. B. Because this is a testimonial privilege, it does not apply to the content of documents whose production was mandated by subpoena.

Counsel: Claims of ineffective assistance of counsel are subject to a two-prong test:

A. Deficiency requirement: Defendant must show that his counsel's performance fell below an objective standard of reasonableness, meaning that counsel made errors so serious that he was not functioning as counsel; and B. Prejudice requirement: Defendant must also show that, but for the deficiency, the outcome of the trial would have been different.

There are two substantive challenges to pretrial identifications:

A. Denial of the right to counsel: (1) Fifth Amendment: There is no fifth amendment right to counsel under the Miranda doctrine for pretrial identification procedures. (2) Sixth Amendment: A right to counsel exists under the sixth amendment at lineups and show ups that take place after formal charging; however, there is no sixth amendment right to counsel at photo arrays. (This is a multistate bar favorite.) B. Violation of Due Process: (1) A pretrial identification procedure violates the Due process clause of the 14th amendment when it is so unnecessarily suggestive that it creates a substantial likelihood of misidentification. (2) In making this determination, courts must weigh the reliability of a suggestive identification against its corrupting effect.

Exigent circumstances (three types)

A. Evanescent evidence: evidence that would dissipate or disappear in the time it would take to get a warrant. B. Hot pursuit of a fleeing felon: (1) Hot pursuit allows police officers to enter the home of a suspect or a third party to search for a fleeing felon. (2) During hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible. C. Emergency aid exception: police may enter a residence without a warrant when there is an objectively reasonable basis for believing that person inside is in need of emergency aid to address or prevent injury. (Does not need to be life-threatening).

Juries

A. Fundamental protections; all criminal defendants have the right to a fair and impartial jury. B. Right to jury trial: criminal defendants have the right to a jury trial when the maximum authorized sentence exceeds 6 months. C. Requisite number of jurors: the fewest number of jurors allowed in a criminal trial? 6 D. Unanimity of jury verdicts: jury verdicts in criminal trials must be unanimous only if 6 jurors are used; verdict in 12 person juries need not be unanimous. E. Cross-sectional requirement: the cross-sectional requirement regarding jurors requires that the pool for which the jury is drawn represents a cross-section of the community. F. Peremptory challenges: peremptory challenges permit both sides to exclude jurors without stating their reasons for doing so, but they cannot be used by either side to exclude prospective jurors on account of race or gender.

Fruit of the poisonous tree

A. General principles: (1) Direct evidence: Most of the unlawfully seized evidence that we have addressed thus far has been directly linked to the constitutional violation, e.g., evidence gathered pursuant to a search warrant that violates the 4th amendment. (2) Derivative evidence: evidence (both physical and testimonial) can also be obtained by exploiting prior unconstitutional conduct, e.g., a confession obtained as a result of an earlier unlawful arrest. This derivative or secondary evidence is called fruit of the poisonous tree and like direct evidence obtained in violation of the 4th amendment, it is inadmissible in the prosecutor's case in chief.

5th amendment Miranda doctrine:

A. Implied rights: Miranda rights are implied rights grounded in the self-incrimination clause of the 5th amendment. B. There are four core Miranda warning: (1) The right to remain silent (2) Anything you say can and will be used against you in a court of law (3) The right to an attorney (4) If you cannot afford an attorney, one will be appointed for you

Inventory researches

A. Inventory searches most commonly occur in two contexts: (1) Arrestees: when they are booked into jail. (2) Vehicles: when they are impounded. B. Inventory searches are constitutional, provided: (1) The regulations governing them are reasonable in scope; (2) The search itself complies with those regulations; and (3) The search is conducted in good faith that is, it is motivated solely by the need to safeguard the owner's possessions and/or to ensure officer safety.

Probable Cause

A. Is hearsay admissible for this purpose? YES B. Use of informants' tips: Police may rely on information obtained through an informant's tip, even if the information is anonymous. The sufficiency of the information's tip rests on corroboration by the police of enough of the tipster's information to allow the magistrate to make a "common sense practical" determination that probable cause exists based on a totality of the circumstances.

When does jeopardy attach?

A. Jury trial: when the jury is sworn. B. Bench trial: when the first witness is sworn. C. Guilty plea: when the court accepts the defendant's plea unconditionally.

Automobile Exception

A. Justifications: vehicles' ready mobility and individuals' lesser expectation of privacy in vehicles B. Standard: Police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle. C. Where can police officers search? The entire vehicle and they may open any package, luggage, or other container that may reasonably contain the item(s) for which there was probable cause to search. D. Traffic stops and auto searches: sometimes what begins as a routine traffic stop results in a search of all or part of the vehicle. For the search to be lawful, an officer does not need probable cause to search the vehicle at the time the car is pulled over, provided he acquires it before initiating the search.

The three types of pretrial identifications:

A. Line-ups: witness is asked to identify the perpetrator from a group B. Show-ups: one on one confrontation between the witness and the suspect C. Photo arrays: witness is shown a series of photos and is asked if she sees the perpetrator among them.

When do you need an arrest warrant?

A. Police officers do not need a warrant to arrest someone in a public place. B. Absent an emergency, police officers need a warrant to arrest someone in his or her home. C. To arrest someone in the home of a third party, police officers need an arrest warrant and a search warrant.

Consent

A. Standard: Consent must be voluntary. For consent to be valid, police officers do not need to tell someone that she has the right to refuse consent. B. Scope of consent: an officer's consent to search extends to all areas for which a reasonable officer would believe permission to search was granted. C. "Apparent" authority: if a police officer obtains consent to search from someone who lacks "actual" authority to grant it, the consent is still valid under the 4th amendment, provided the officer reasonably believed that the consenting party had "actual" authority. D. Shared premises (1) When adults share a residence, any resident can consent to a search of common areas within it. (2) However, if co-tenants who are present on the premises disagree regarding consent to search common areas, the objecting party prevails, as to areas over which they share dominion and control (a) But, if an objecting co-tenants is removed for reasons unrelated to his refusal (e.g. lawful arrest), the police may rely on the consent of the remaining consenting co-tenant.

The 8th Amendment and the Death Penalty:

A. Statutory limits: a death penalty statute would violate the 8th amendment if it created an automatic category for the imposition of the death penalty. B. Evidential requirements: in deciding whether to impose the death penalty, jurors must be allowed to consider all potentially mitigating evidence. C. Categorical exclusions: the 8th amendment prohibits the imposition of the death penalty: (1) Against defendants with mental retardation. (2) Against defendants who are presently insane. (3) Against defendants who were under the age of 18 at the time the relevant offense occurred (not their present age). 1. Note: it is also unconstitutional to sentence juvenile offenders to mandatory life in prison without the possibility of parole. (4) On crimes against individual persons, (e.g., child rape, where the victim did not die.)

When can someone take the fifth? -

A. The privilege can be asserted in any proceeding in which an individual testifies under oath.

Remedial considerations

A. The remedy for constitutional violations in pretrial identifications is the exclusion of a witness's in court identification. B. However, even if there is a constitutional violation in a pretrial identification procedure, an in-court identification will still be allowed if it has an "independent source" - that is, if the prosecution can prove that the in-court identification is based on observations of the suspect other than the unconstitutional show-up, line-up or photo array; C. To make this showing, the prosecution can point to factors such as: (1) The witness' opportunity to view the defendant at the crime scene; (2) The specificity of the description given to the police; and (3) The certainty of the witness's identification.

Right to counsel under the 6th amendment:

A. This is an express constitutional guarantee. B. It attaches when the defendant is charged formally not upon arrest! C. It applies at all critical stages of the prosecution that take place after the filing of formal charges, including arraignment, probable cause hearings, police interrogation and plea bargaining. D. This right is "offense specific." This means it applies only to the crimes with which a defendant is formally charged. It provides no protection for uncounseled interrogation for other uncharged criminal activity. E. Incriminating statements obtained from the defendant by law enforcement about charged offenses violate the 6th amendment if those statements are deliberately elicited and the defendant did not knowingly, intelligently, and voluntarily waive his right to have his attorneys present.

Can failure to assert the privilege in a civil proceeding undermine the ability to assert it in a later criminal proceedings? -

A. Yes. If an individual responds to questions in a civil proceeding, he cannot exclude that evidence in a subsequent criminal proceeding on self-incrimination grounds.

Speedy trial: 6th Amendment

All criminal defendants have the constitutional right to a speedy trial; to determine whether that right has been violated, courts should consider the totality of the circumstances; including: A. The length of the delay B. The reason for the delay, and C. Prejudice to the defendant

For what offenses does the 4th amendment permit a custodial arrest?

All offenses, even those punishable by a fine only.

Plea-taking Colloquy

Before accepting the plea, the judge must conduct a colloquy in open court in which she addresses on the record: A. The nature of the charges, including required elements of the charged offense and B. The consequences of the plea, (e.g., waiver of the right to plead not guilty; waiver of the right to a trial.)

"ESCAPIST"

E - Exigent circumstances S - Search incident to arrest C - Consent A - Automobile Exception P - Plain view I - Inventory searches S - Special needs T - Terry "Stop and Frisk"

1st Amendment

Freedom of religion (establishment & free exercise clauses), speech, press, assembly, and petition.

8th Amendment

Government cannot inflict cruel and unusual punishment.

13th Amendment

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

11th Amendment

One State cannot be sued by another state

Unprotected Items: Mnemonic: "Public Observation Generally Obliterates Fourth Amendment Protection"

P - Physical characteristics (the sound of your voice, the style of your handwriting) O - Odors that emanate from your car or your luggage G - Garbage left at the curb for collection O - Open fields: anything that can be seen in or across the open fields. F - Financial records held by a bank. A - Air space: anything that can be seen below when flying in public air space P - Pen registers: devices that list the telephone numbers someone has dialed.

10th Amendment

Powers not expressly given to federal government by the Constitution are reserved to states or the people. "reserved powers amendment" "states' rights amendment"

What standard of proof applies to arrests?

Probable Cause

3rd Amendment

Prohibits the forced quartering of soldiers during peacetime.

2nd Amendment

Right to bear arms. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

7th Amendment

Right to jury in civil trials.

Question 1: Was the warrant issued by a neutral and detached magistrate?

Standard: A judicial officer ceases to be sufficiently "neutral and detached" for 4th Amendment purposes when her conduct demonstrates bias in favor of the prosecution. Example: Salary of town official responsible for issuing search warrants comprised entirely of cash award for each warrant issued.

15th Amendment

States cannot deny any person the right to vote because of race.

Privacy-based test

The agent's search or seizure of a constitutionally protected area violated an individual's reasonable expectation of privacy.

Evidentiary standard:

The government needs probable cause that a defendant committed the charged offense to bind him over for trial and to either impose bail or detain him in jail before trial.

4th Amendment

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

Plain View

The three requirements for seizure of an item in plain view: A. Lawful access to the place from which the item can be plainly seen; B. Lawful access to the item itself; and C. The criminality of the item must be immediately apparent.

Was the warrant properly executed by the police?

There are two aspects of this inquiry: 1. Compliance with the warrant terms and limitations: A. In executing the warrant, officers are allowed to search only those areas and items authorized by the language of the warrant. B. When executing a search warrant, officers may detain occupants found within or immediately outside the residence. (e.g., the front steps or adjacent pathway) at the time of the search. 2. Knock and Announce Rule: Police must "knock and announce" their presence and their purpose before forcibly entering the place to be searched, unless the officer reasonably believes that doing so would be: a. Feudal; or b. Dangerous; or c. Would inhibit the investigation

When are Miranda warning necessary?

There are two core requirements: (1) Custody: a two-part totality of the circumstances test is used to determine if a suspect is in custody for Miranda purposes. (a) Part One: a reasonable person would have felt that she was not at liberty to end the interrogation and leave; and (b) Part Two: the environment presents the same inherently coercive pressures as the station house questioning at issue in Miranda. (c) Age and custody: while the custody inquire is objective, it should take account of a juvenile suspect's age, where age is relevant and when the officer knew or should have been aware of a child's are at the time of questioning. (2) Interrogation: the 5th amendment Miranda doctrine defines interrogation as any conduct the police knew or should have known was likely to elicit an incriminating response. Remember: Miranda does not apply to incriminating statements made spontaneously, since they are not the product of interrogation. (3) Public Safety Exception: If a suspect is subjected to custodial interrogation, as defined above, the Miranda doctrine applies with one important exception: If custodial interrogation is prompted by an immediate concern for public safety, Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect.

III. Search and Seizure - Issue Two (Searches with Warrants)

This issue asks four key questions: 1. Was the warrant issued by a neutral and detached magistrate? 2. Is the warrant supported by probable cause and particularity? 3. If not, did police officers rely on a defective warrant in good faith? 4. Was the warrant properly executed by the police?

Admitting Tainted Fruit

To nullify fruit of the poisonous tree, prosecutors must show a break in the causal link between the original illegality and the criminal evidence that is later discovered. (1) Independent Source: This doctrine applies where there is a source for the discovery and seizure of the evidence that is distinct from the original illegality. (2) Inevitable discovery: This doctrine applies where the evidence would necessarily have been discovered through lawful means. (3) Attenuation: This doctrine admits derivative evidence where the passage of time and intervening events purge the taint of the original illegality and restore the defendant's free will.

Particularity

To satisfy the particularity requirement, the search warrant must specify two things: A. The place to be searched; and B. The items to be seized.

9th Amendment

Unenumerated Rights Amendment. Rights in addition to those stated in the Constitution. . Not everything can be written down. rights retained by the people

6th Amendment

You have the right to a speedy trial. The right to counsel in criminal trials. You get a free lawyer ("public defender"). Right to jury in criminal trials.

Evidentiary disclosure

a prosecutor must disclose to a criminal defendant all material, exculpatory evidence (the Brady rule).

Exclusionary rule:

evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated.

A Valid Plea

for a guilty plea to be valid, the judge must establish that it is voluntary and intelligent.

Wiretapping

four major requirements for a valid wiretap warrant: • Mnemonic: Screen Telephone Calls Carefully S - Suspected person: the warrant must name the suspected persons whose conversations are to be overheard. T - Time: the wiretap must be for a strictly limited time period. C - Crime: there must be probable cause that a specific crime has been committed. C - Conversations: the warrant must describe with particularity the conversations that can be overheard.

Withdrawing the Plea

once a defendant who has pled guilty is sentenced, it is difficult for him to withdraw his plea. He may do so, however, if: A. The plea is involuntary, due to a defect in the plea-taking colloquy; B. The defendant prevails on a claim of ineffective assistance of counsel or (1) Special circumstances - deportation risk: if a guilty plea carries a risk of deportation, counsel's failure to inform her client of that fact satisfies the deficiency requirement of ineffective assistance of counsel claims; to establish prejudice, a defendant must further prove that a decision to reject the plea defendant must further prove that a decision to reject the plea bargain would have been rational under the circumstances. (2) The prosecutor fails to fulfill his or her part of the bargain.

12th Amendment

separation of votes for President and Vice President

Eight Amendment Standard

the 8th amendment prohibition against cruel and unusual punishment disallows criminal penalties that are grossly disproportionate to the seriousness of the offense committed.

Trespass-based test

the agent physically intruded on a constitutionally protected area in order to obtain information

Judges

the right to an unbiased judge means two things: A. The judge has no financial stake in the outcome of the case; and B. The judge has no actual malice towards the defendant;

Respecting Miranda:

unless the public safety exception applies, a suspects incriminating testimonial response obtained through custodial interrogation are admissible if (and only if) an officer does two things: (1) Reasonably conveys to the suspect his or her core Miranda rights; and (2) Thereafter obtains a valid waiver of a suspect's Miranda rights to silence and counsel.

Eavesdropping

unreliable ear doctrine and assumption of the risk: If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4th amendment claim; you assume the risk that the other party will not keep your conversations private.

Question 4: Did the individual subjected to the search or seizure have "standing" to challenge the government agent's conduct?

• Key Principle: to have authority, or "standing," to challenge the lawfulness of a search or seizure by a government agent, an individual's personal privacy rights must be invaded, not those of a third party. • Accordingly, does a search or seizure by a government agent implicate individuals' reasonable expectation of privacy so as to confer "standing