Term
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Definition
- search and seizures
- warrant requirement
- probable cause
- privacy |
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Term
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Definition
- Grand jury indictments (capital/infamous crime)
- double jeopardy
- self-incrimination (miranda)
- due process |
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Term
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Definition
- speedy and public trial
- impartial jury
- confrontation
- compulsory process
- right to counsel |
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Term
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Definition
- right to bail
- "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." |
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Term
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Definition
- due process through the states
- essential fairness |
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Term
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Definition
| - to deprive a person of their liberty, however slight, by legal authority, but without trial or conviction, but having fulfilled the requirement of probable cause |
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Term
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Definition
| - written statement of the essential facts constituting the offense charged; it shall be made upon oath before a magistrate judge |
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Term
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Definition
- reasonable and prudent law enforcement officer, given the circumstances, would believe that a crime has been or is being committed
- objective facts are needed; subjective good faith irrelevant
- traffic violation is enough for probable cause stop
** key question for probable cause determination: Was it reasonable under the circumstances for officer to reach the conclusion he did? |
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Term
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Definition
- include where the info came from and any surrounding circumstances that provide a sufficient basis upon which a finding of probable cause was made
- facts (specific preferably) and the source of those facts
**4th Amendment doesn't require an arrest warrant in every situation; arrest must be reasonable |
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Term
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Definition
- hearsay can be used to determine whether PC exists (in investigative context) but cannot use hearsay at trial to determine whether the D is actually guilty (prosecution)
- If PC is based on hearsay, need to consider: 1) past reliability of informant, 2) corroboration of the hearsay
- in Draper, the informant was known and reliable and the information was corroborated - therefore PC exists |
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Term
| Relevant factors for informant's info: |
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Definition
1) Source - where did the informant get the info from?
2) Reliability - has this informant been reliable in the past, or is she untested?
3) Corroboration - corroboration must happen before and up to the time of the arrest (corroboration after arrest doesn't count); info corroborated doesn't need to be criminal in nature, but needs to be a reasonable amount of what the informant has told
-- Crucial Questions: 1) Do we have PC? 2) Do we need a warrant? |
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Term
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Definition
- an exception to the warrant requirement
- if a person is properly arrested and in the context of executing that arrest there is contraband/guns/evidence in plain view of the arresting officer, he or she can seize that contraband in plain view without a search warrant
- police must have right to be where they are
- if police not allowed to be there, evidence is inadmissible - fruit of poisonous tree |
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Term
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Definition
| - PC to believe the subject of the warrant has committed an offense and thus the warrant protects an individual from unreasonable seizure |
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Term
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Definition
| - PC to believe the legitimate object of a search is located in a particular place; protect's individuals's interest in privacy of his home and possessions against unjustified intrusion of the police |
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Term
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Definition
- WHERE the arrest takes place
- A warrant is necessary to make a ROUTINE felony arrest in the HOME; cannot make an arrest/search of a home w/o a warrant, absent exigent circumstances
- If only arresting D in home, only need an arrest warrant; if arresting and searching in D's home, need both arrest and search warrants |
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Term
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Definition
- WHEN is it a seizure?
- When there is a showing of authority by law enforcement and suspects complies with that show of authority (must be action on both sides); OR
- application of physical force (handcuffing) |
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Term
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Definition
- HOW you arrest (scope issue)
- deadly force is only reasonable to apprehend suspect if it is necessary to prevent his/her escape AND officer has PC to believe that the suspect poses significant threat of danger or serious physical injury to officers or others
- Must affect arrest in reasonable way: Look at 1) seriousness of offense w/ which D is charged and 2) whether there are exigent circumstances that call for the means which the police use |
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Term
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Definition
- knock and announce is part of the reasonableness requirement of the 4th Amend.
- don't need K & A if exigent circumstances
- can't have blanket exceptions to knock and announce - ex: drug cases |
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Term
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Definition
| - when a ct is actually going to try a suspect, it is only concerned with one thing initially: PC; The court will no ask how suspect got in front of the court - due process is used looking forward |
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Term
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Definition
- Wong Sun (applying X rule to a violation of constitutional rights)
- 'fruit of the poisonous tree' - if there is an initial illegality in the context of seizing someone or evidence, all the fruit from that seizure is admissible.
- It is possible for gov't to PURGE THE ILLEGAL TAINT and make evidence seized admissible; if you EXPLOIT THE INITIAL ILLEGALITY then you don't purge the taint
- balance the social costs v. the deterrence |
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Term
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Definition
- For stop and frisk, must have REASONABLE SUSPICION (based on totality of circumstances) that a crime is afoot or PC; and concern is for officer safety
- Test for Terry Stop (implicates 4th Amend):
1) Must have reasonable (objective) suspicion that crime is afoot (articulable facts - hunch not enough; less than PC; must be based on personal observation, tip from reliable informant, or anonymous tip -- anon tip requires extremely specific details describing conduct and corroboration)
2) search is limited to pat down FOR OFFICER SAFETY (not automatic w/ stop - there must be reasonable belief D is a physical threat to police (not to be used to search for evidence))
3) If object is felt during pat down, object cannot be manipulated to determine what the object is (PLAIN FEEL EXCEPTION - if it obvious to what the item is (gun, drugs) officer can seize object from inner clothing)
4) PC for arrest can come from seized illegal objects |
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Term
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Definition
| - anonymous tip lacking specific predictive facts and dynamic information (what a suspect WILL do) and only including static info (what the suspect looks like) does not justify a stop and frisk |
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Term
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Definition
- man spots police and bolts
- high crime area + Flight = Reasonable suspicion sufficient for a terry stop |
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Term
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Definition
- Test for reasonable suspicion (terry stop) is the totality of the circumstances
- Number of factors alone aren't enough, but when taken together add up to reasonable suspicion
- WHOLE can be GREATER than the SUM OF THE PARTS
- Not what a reasonably ordinary person would conclude, but a reasonable LAW ENFORCEMENT OFFICER would conclude under a certain set of circumstances |
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Term
| Hiibel v. 6th Judicial Court of NV; Brown v. TX |
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Definition
- Must have reasonable suspicion of A SPECIFIC CRIME
- balancing test: gov't interest v. intrusive on individual liberties
- if there is reasonable suspicion to stop, there is a stronger gov't interest in asking for identification (clear the person, existing warrants); interest in asking the suspect's name is minimally invasive |
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Term
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Definition
- alcohol checkpoint implicates 4th amend b/c it is a stop and thus a seizure
- balancing test: public interest in stopping crime v. personal liberty
- Objective intrusiveness rules - therefore the court looks:
1) to minimize intrusion
2) to make sure STANDARDIZED PROCEDURES are applied to each
3) to narrow the discretion of officers
** general crime control checkpoints are unconstitutional b/c there is no individualized suspicion and no immediate threat (Indy v. Edmond) |
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Term
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Definition
1) illegal immigration checkpoint
2) DUI checkpoint
3) license and registration checkpoint |
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Term
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Definition
Qualifications:
1) an encounter where suspect is free to leave (search based on consent) does not implicate 4th amend.
2) forcible seizure implicates 4th amend and only allowed if:
a) reasonable suspicion
b) probable cause
c) roadblock plan
d) individual suspicion |
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Term
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Definition
| - gov't intrusion into an area where a person has a reasonable and justifiable expectation of privacy |
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Term
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Definition
| - exercise of control by govt over a person or thing |
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Term
| Evolution of exclusionary rule |
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Definition
- Weeks v. US - established X rule in fed courts
- Wolf v. CO - refused to apply X rule to states
- Mapp v. OH - overruled Wolf; apply to states |
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Term
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Definition
- Good Faith Exception to Exclusionary Rule
- when a warrant was issued on less than PC, but officers acted in good faith reliance (objective test) on the sufficiency/adequacy of that warrant, the X rule will not apply to evidence seized
* Exceptions to Good Faith Exception:
1) clearly erroneous- so lacking in PC that no officer would have relied on it
2) rubber stamp magistrate
3) warrant facially invalid |
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Term
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Definition
- Inevitable Discovery Doctrine (exception to X rule)
- police would have found the evidence anyway (proven by P's preponderance of evidence) so the evidence is not excluded
- Test: 1) search for evidence has already started (independent investigation already begun); and 2) evidence would have been discovered anyway (independent investigation was close to finding evidence) |
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Term
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Definition
1) Independent Source
2) Good faith Exception
3) Inevitable Discovery
4) Intervening acts of free will by D
5) Knock and Announce |
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Term
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Definition
- X rule will not be applied to knock and announce
- k & a was never meant to protect an individual's privacy... it was meant to protect destruction of property, life, and limb.
- civil suit is proper remedy - 1983 claims
- social costs outweigh deterrence
* flood of litigation would occur, letting guilty go free
* incentive to violate K&A is same as exigent circumstances, which suspend K&A anyway |
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Term
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Definition
- officer doesn't have to inform the D that consent is not required to make consent voluntary (Scneckloth)
- Consent must be voluntary under the totality of circumstances:
* Characteristics of D (age, intelligence, experience w/ law enforcement)
* Police actions (length of questioning, length of detention, use of physical or psychological punishment)
- police may enter if they have a reasonable belief that the person giving consent has the authority to do so (objective standard) - IL v. Rodriguez
* reasonable belief is prosecution's burden to prove by preponderance of evidence from totality of circumstances
- 'no' trumps 'yes' to consent when 2+ individuals are present (must get warrant)
- consent of a person that has common authority over the premises is binding against an absent, non-consenting individual w/ the same authority (roommate consent search) |
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Term
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Definition
- PC is a common sense determination based upon the totality of the circumstances, not a rigid legalistic rule
* Basis of knowledge
* credibility of informant
* veracity/reliability of the info (corroboration - dynamic v. static) |
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Term
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Definition
- as long as the initial reason for being there (search warrant) is valid, everything found in PLAIN VIEW is admissible
- AZ v. Hicks: cannot move/manipulate items to bring them into plain view (ex: can't move TV around to check serial numbers) |
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Term
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Definition
- SEARCH INCIDENT TO ARREST
- upon valid arrest, officers can search person's immediate area of control w/o a search warrant
* can't search entire house - scope is limited to person's immediate are
- allowed for safety of officers and preservation of evidence
- Knowles v. IA: police can not search incident to lawful arrest if they only give citation during traffic stop |
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Term
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Definition
- exception to warrant
- police allowed a quick look through the dwelling in places where a person may be hiding
- allowed to protect officers
- must be some articulable fear that another individual may be present... it is not given automatically |
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Term
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Definition
- distinction between home and car
- automobiles may be searched w/o a warrant in circumstances that would not justify the search w/o a warrant of a house/office provided that there is PC to believe that the car contains articles that the officers are entitled to seize.
- 3 Reasons
1) vehicles are mobile
2) lower expectation of privacy in vehicle
3) vehicles much more regulated than homes |
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Term
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Definition
- inventory searches are valid b/c
1) protects owners property
2) protects police against claims for damage to property
3) protects police from potential danger
* another case showing vehicles less protected than homes |
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Term
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Definition
- If PC exists to search the car, all containers in the car can be searched as well
- if PC exists to search a container in the car, a search of the entire car is not allowed w/o separate PC to search entire car |
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Term
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Definition
- Rakas test:
* The violation must be personal (own reasonable expectations of privacy - not a 3rd party's)
* injury in fact
-Who has standing in a car?
* Passenger has no standing; driver has standing only if owner isn't present; owner, if present, always has standing
- won't have standing if your item is seized and you put it in another's bag/home/etc
Standing:
1) has the proponent of a legal right alleged an injury in fact?
2) is the person asserting HIS OWN LEGAL RIGHTS AND INTERESTS rather than basing claims on 3rd party
3) standing just gives right to challenge - doesn't mean you win
- Overnight guest has an expectation of privacy and thus has standing (MN v. Olson)
- No expectation of privacy when using the home solely for business purposes
- no expectation of trash on the street - trash in house has expectation of privacy
- Standing is the first question to answer regarding a constitutional protection exam question... standing gets you in the door |
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Term
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Definition
- no legitimate expectation of privacy in an open field
- viewing/entering field is not considered a search; can be trespass though (trespass doesn't always implicate 4th amend)
- limited to the curtilage; based on these factors
* proximity of the area claimed to be curtilage to the home
* whether the area is enclosed by fence, etc.
* nature of the uses to which the area is put
* steps taken by resident to protect the area from observation by passerby |
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Term
| exceptions to warrant requirement |
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Definition
1) Plain view/feel/smell
2) search incident to lawful arrest (possible danger to officer/preserve evidence)
3) stop and frisk
4) consent of person controlling premises (Good faith exception)
5) automobile exception (PC to search vehicle then whole vehicle can be searched and any container therein; PC to search container and only can search container)
6) exigent circumstances (emergency - hot pursuit, losing evidence, danger)
7) Threatened destruction of evidence
8) Protective sweep
9) Checkpoints
10) Inventory search
11) regulatory searches in form of emergency inspections |
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Term
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Definition
- consent to deception does not lead to a 4th Amend violation
- deception can be used to gain entrance to the home (limited entry - cannot search while in home)
- deception where there is a choice is going to be ok; iffy when you get into no choice (danger afoot, etc.)
- trusting someone and telling them of illegal activity is the risk that everyone takes (US v. White - allowed to wiretap a police officer that gained entrance through deception) |
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Term
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Definition
- wiretapping is a search and implicates the 4th amend (warrant required)
- 4th amend protects people not places
- Test:
1) subjective expectation of privacy of the person
2) objective expectation that society deems reasonable
** There is no expectation of privacy in sound of voice, handwriting, and smell of luggage or car (smell dogs are not an invasion of privacy) |
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Term
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Definition
| - use of a thermal imager was the 'functional equivalent of a physical invasion' |
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Term
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Definition
| - pill swallower: pumping his stomach shocked the conscious (generally not followed today) |
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Term
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Definition
- withdrawal of blood is not testimonial in nature so D is not being compelled to testify against himself
- 5th Amend self-incrimination test:
a) there must be compulsion (no consent)
b) must be testimonial in nature (has to be verbal) |
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Term
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Definition
- post-indictment lineup is a CRITICAL STAGE of the prosecution at which D must have counsel present
- the remedy for an unCn'l ID is EXCLUSION of the IN-COURT ID (unless an independent source for the ID exists
- no right to counsel in pre-indictment lineup situations (Kirby v. IL - when the process is one of investigation as opposed to prosecution, certain constitutional rights don't apply; police are merely investigating) |
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Term
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Definition
- subpoena is not a seizure in terms of the 4th A; subpoena is neutral - doesn't have same attributes as arrest
- voice exemplars are not seizures (nor do they implicate the 5th amend) b/c your voice is open to the public and a person doesn't have an expectation of privacy in his/her voice |
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Term
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Definition
- due process claims evaluated on the basis of totality of the circumstances
- to determine if confession was voluntarily made, look at T of C:
a) nature/characteristics of D (age, education, intelligence, prior experience with law enforcement)
b) context of questioning (length of questioning, duration of detention, physical/psychological pressures, deception) |
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Term
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Definition
- unCn'l to use a wired informant when the D is out on bail
- 6thA right to counsel attaches post indictment
** only protects from what gov't does; friend can turn you in no problem |
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Term
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Definition
- 6th Amend right is offense specific
- if there is any distinct element in one offense that is not in the other, there are two distinct offenses and the 6th amend doesn't attach to the alternative/other offense (Blockberger Test) |
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Term
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Definition
- prosecution may not use statements stemming from custodial interrogation unless it uses procedural safeguards effective to secure the privilege against self-incrimination (right to remain silent, anything said can and will be used against you in court, right to an attorney and one will be given if you're poor)
- applies only to custodial interrogation (b/c of concern w/ secrecy and psychological coercion)
- waiver of Miranda rights must VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY MADE (totality of circumstances test)
- can't be overturned by statute |
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Term
| Miranda waiver/invocation |
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Definition
- as soon as suspect asks for an attorney, questioning must stop, unless D volunteers more statements
- - (Gov't must prove: 1) D initiates further conversation w/ police OR 2) express signed waiver of Miranda rights
- Invoking rights must be CLEAR AND UNAMBIGUOUS
- Can imply a waiver (Berghuis v. Thompkins)
1) D must understand high rights
2) There cannot be any police coercion (police pressure - suspect's ability to resist)
3) Course of Conduct by D implying a waiver
- In the context of Miranda, law enforcement has no responsibility to provide additional info to D (Moran v. Burbine - counsel was trying to call in; police said questioning was over) |
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Term
| Miranda waiver/invocation continued |
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Definition
- Dunaway (illegal arrest - then Miranda - then confession)... taint of illegal arrest is not purged by Miranda warnings
* Miranda warning do not correct a 4th A violation w/o an intervening act
- Public safety exception to Miranda (NY v Quarles) -- based on what a reasonable police officer would do to protect the public (objective standard)
- statements taken w/o Miranda warnings can still be used for impeachment... shield provided by Miranda doesn't give D right to commit perjury (however, a truly involuntary confession in inadmissible for any purpose) |
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Term
| 5th amendment & attorney client privilege |
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Definition
- 5th Amend violation claim is personal - attorney cannot use the theory of agency and assert client's 5th Amend privilege to avoid turning over documents
- To assert attorney-client privilege as to not turn over documents:
1) must have turned over documents over to get legal advice (cannot use attorney for safe haven from prosecution) AND
2) the documents would have been protected under the 5th Amend if in hands of client (testimonial in nature and compulsion to give them up) |
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Term
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Definition
- transactional immunity... gov't can't prosecute witness for the offense (very broad immunity; every D wants this)
- use and derivative use immunity... gov't can't use the testimony or the evidence gained b/c of the testimony to prosecute witness (Kastigar holds that this is a sufficient grant of immunity; and if gov't later wants to prosecute witness, it has to show that the evidence came from an independent source) |
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Term
| ineffective assistance of counsel |
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Definition
-Must satisfy both prongs:
1) attorney error was present (attorney is given great discretion for trial strategy; were attorney's choices reasonable in the circumstances)
2) actual prejudice sufficient to perhaps lead to different verdict (30-50% chance of change is sufficient)
- 6th Amend doesn't extend to assisting client w/ perjury |
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Term
| Gerstein v. Pugh; Riverside v. McLaughlin |
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Definition
- if D is arrested and held on prosecutor's info, D is entitled to a prompt probable cause hearing (prompt is within 48 hours and is presumptively valid)... condition precedent of being arrest w/o arrest warrant (no hearing if arrested with warrant)
- if probable cause hearing is not granted it is only HARMLESS ERROR
- no right to counsel at probable cause hearing (not a critical stage) |
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Term
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Definition
- preliminary hearing is a critical stage of the proceedings which the D has a right to counsel
- reasons why critical stage
1) defense is able to see prosecution's theory
2) D's counsel should be able to cross-X witnesses
3) counsel makes adequate arguments for bail
- right to counsel extended to any situation where you are sentenced to jail time
- if potential to go to jail on condition such as probation, then you have a right to counsel |
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Term
| preliminary hearing v. probable cause hearing |
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Definition
- preliminary hearing
-- beginning of adversarial process
-- looking forward
-- key thing decided is if there is sufficient evidence to bind for trial (set trial date, possibly bail, custody, etc.)
-- not Cn'lly required, but if entitled to prelim hearing, then certain Cn'l rights attach (right to counsel)
-- critical stage
-- screening device
- Probable Cause hearing
-- looking backward as arrest w/o warrant
-- Cn'lly required
-- non adversarial - determined by magistrate just as PC determination is made by magistrate)
-- not a critical stage |
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Term
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Definition
- guarantee for reasonable bail
- bail is not a constitutionally protected right
- Bail can be denied b/c of flight risk, danger to society, taint of evidence through contact - gov't burden of proof.
- if denied bail or set too high, it is an immediate appealable issue
- purpose of bail is not a punishment, but rather a regulation |
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Term
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Definition
- 3 categories to address when deciding to prosecute:
1) is there substantial federal interest?
2) has there been effective prosecution in another jurisdiction?
3) is there an adequate non criminal alternative to prosecution?
** can't consider race, religion, sex, political affiliation, personal feelings
- prosecutor given broad discretion
- to show selective prosecution D must:
1) ID people similarly situated and that the court is only prosecuting one group of those people
2) basis for selecting some rather than others is on an impermissible ground (religion, expression of 1st amend rights, race, etc.) |
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Term
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Definition
- in federal courts only, indictment is constitutionally required under 5th A
- 16-23 people and must get 12 to indict person
- purpose to discover is PC exists
- only prosecuting attorney and testifying witnesses allowed in proceedings
** no judge, no defense attorney - show is run by prosecution
- if there was enough evidence to convict, then there must have been enough evidence to indict; therefore, if there was error in indictment process it is harmless error
- grandy jury may base its indictment on evidence that would be inadmissible at trial - court is not a supervisory body to grand jury
- X-rule is inapplicable to grand jury proceedings
- gov't not required to disclose exculpatory evidence to grand jury |
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Term
| FR 11 - Pleas and Plea Bargaining |
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Definition
- purposes
1) ensure guilty plea is VOLUNTARY AND INTELLIGENT (D must understand waiving of cn'l rights; max penalty, nature of the charge, and crucial element of the charge must be given)
2) produce a complete record
- remedy for failure to meet these standards is withdrawal of plea and PLEADING ANEW |
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Term
| package deal plea bargains |
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Definition
| - not unconstitutional nor improper, but court must be persuaded that the plea is given voluntarily by looking at the totality of the circumstances |
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Term
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Definition
| - two or more offenses may be charged in the same indictment if they are THE SAME OR SIMILAR CHARACTER or are BASED IN THE SAME ACT OR TRANSACTION or CONSTITUTING PARTS OF THE SAME SCHEME |
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Term
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Definition
- two or more Ds can be tried together if they are alleged to have participated in the SAME ACT OR IN THE SAME SERIES OR ACTS
- 2 part test
1) was the joinder permissible? (balance trial efficiency with prejudice toward one of the Ds)
2) once the court determines the rule was violated, court will reverse the conviction (REMEDY) |
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Term
| factors on whether a delay to trial is 6th A violation |
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Definition
1) length of delay
2) gov't reason for delay (deliberate or justified)
3) Ds responsibility to assert his right
4) prejudice to D
- totality of circumstances test |
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Term
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Definition
- statutes now in effect
* SD - must be brought to trial in 180 days; Fed - 70 days
- Remedies is inordinate delay:
1) SoL rules/remedies
2) due process claim, but must show substantial delay was prejudicial and delay was intentional (difficult burden for D)
- speedy trial starts at indictment/arrest |
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Term
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Definition
- work product is not subject to disclosure
- gov't must produce evidence which would create a reasonable doubt that did not otherwise exist (Brady, Agurs)
- gov't has duty to disclose exculpatory evidence - failure to disclose violates due process and is ground for REVERSAL IF D can prove:
1) evidence is favorable to D
2) prejudice has resulted and it is reasonably probable that case would have ended up different if evidence was presented
- D is required to disclose alibi and alibi witnesses, but the prosecution must disclose rebuttal evidence in return (reciprocal rule)
- Judge has the right to preclude evidence (don't allow witness to testify) as one of his options if there has been intentional w/holding of the witness in noncompliance with the discovery rules even if other sanctions are available (continuance, mistrial, contempt of attorney) |
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Term
| When must a prosecutor give evidence? |
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Definition
1) when undisclosed evidence demonstrates that the prosecution's case included perjured testimony
2) requests for specific evidence by D
3) evidence so clearly supports D's innocence that the prosecutor has a duty to disclose
* duty is based on materiality
** materiality test: if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed (D has Burden of proof of different outcome)
- same test for materiality whether there was a specific request, general request, or no request at all by D to get evidence
- unless a criminal D can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process (purposeful mishandling of evidence) |
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Term
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Definition
- Cn'lly impermissible to strike members simply b/c of their race as this offends the equal protection clause of the 14th amend
- D must prove
1) prosecution has stricken members of D's group
2) circumstances raised an inference of purposeful discrimination
* B of P then shifts to prosecution to show individuals weren't stricken for race
* remedy = reversal
- also applies to gender |
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Term
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Definition
- confrontation clause doesn't require excluding from evidence the prior statements of a witness who concedes making them, and is asked to defend or explain inconsistencies, thus opening himself to cross-examination
- Court asks 3 questions - if yes to all, then evidence doesn't violate right to confrontation
1) did witness testify under oath?
2) was there an opportunity for cross examination at preliminary hearing?
3) was the D represented by counsel at prelim hearing? |
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Term
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Definition
| - MS evidence rule of no 2nd cross exam and no witnesses of hearsay cumulatively resulted in denial of due process rights |
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Term
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Definition
- when you appeal a conviction, you are waiving your protection of double jeopardy (double jeopardy doesn't attach until you really have a final judgment - appeals process, remand, etc is complete)
- if jury is silent on a charge then it is seen as an acquittal
-- jeopardy attaches to the silent charge seen as acquittal |
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