Criminal Procedure

  1. 14th amendment; ostensible dual citizenship
    Made state citizens also federal citizens; use to apply the BoR to the states
  2. Palko v. Connecticut––Double jeopardy applicable to states
    It wasn't. (OVERRULED)
  3. Adamson v. Cal––Right against self incrimination applicability to states
    It wasn't. (OVERRULED)
  4. "Shocks the conscience" standard
    Exclusionary rule predecessor; kept ev out that was obtained by police through conduct which "shocked the conscience"
  5. Right to Privacy
    Griswold v. Connecticut created it. No mention of privacy in the Const. or BoR
  6. Which provisions of BoR have been incorporated to states?
    All, except right to grand jury indicment; right to bail
  7. BoR unincorporated
    • Right to Grand Jury Indictment
    • Right to Bail
  8. Probable cause
    • - Level of proof, but not to a level that rises to the leve of conviction (above reasonable doubt)
    • - The facts and circumstances w/in the deciosn makers knowledge and of which they had ereasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in th belief that an offense had been or was beeing committed
  9. Prospective use of probable cause (as opposed to retrospective use)
    Proce PC before judge, before the act
  10. Retrospectice use of PC (as opposd to prospective use)
    Exigent circumstance prevented police from approving axn. w/ judge beforehand, so they do so afterwards
  11. Informant PC developmen
    • Criminal CI: good track record; reliable facts
    • Undercover Cop CI: generally more trustworthy
    • Non-Criminal, non-police CI: look at motives and trustworthiness
  12. PC-based, no warrant arrest legitimacy
    Are legitmate. Warrants aren't required for arrests, only reasonableness
  13. Arrest requirements
    When an officer has PC, and arrest is Const.

    • Misdemeanor committed in his presence; Or
    • PC for a felony
  14. FBI warrantles arrest requirements
    Warrant required unless exigent circumstances
  15. Status of getting pulled over w/ regard to arrest
    Getting pulled over is an arret; it is not a custodial arest
  16. State law modifying the 4th amendment
    It doesn't. A state can set the bar higher w/ regard to search and seizure, but no Const. violation occurs when officer acts below the state bar but above the federal bar
  17. Arrests for non-violent misdemeanors: Okay?
    yep. State may bar it, but 4th amendment doesn't (take up in state court if you want recompense0
  18. Nonconsensual encounter
    Being approached by a police officer w/o your request
  19. Pretextual traffic stops
    Cops can stop, even if just for a minor traffice offense, so long as they have PC
  20. PC std. of review
    De novo
  21. Difference between subpeona and search warrant
    Subpoena: "Thanks, we'll get back to you." (You can challenge, etc.; no immediate axn required.)

    Warrant: "Give them what they want, get out of the way." - Judge. (If you don't get out of the way, you and your client go to jail. No discretion in answering a warrant.
  22. Seizure, defined
    Either application of physical force (e.g., Hodari D) OR when force is absent, assertaion of and submission to authority.

    E.g., cop grabs you or turns on lights to stop you
  23. Katz
    4th amendment protects people on places
  24. Search, defined
    • Katz
    • Teh invasion of a reasonable expectation of privacy
  25. Reasonable expectation of privacy test
    • 1) Subjective prong: Expectation of priv. that society is willing to protect.
    • 2) Objective prong: Did the individual at issue expect area to be private
  26. Highest level of proteciton of privacy afforded to ______
  27. Exception to home having highest level of privacy:
    Leav eev. out int he open (e.g., weed/grow light in your picture window that can be seen from the street)
  28. Arrests w/in home
    • Payton
    • Though no warrant is required for a public arrest, warrant is required to enter someone's home to arrest them (excluding exigent circumstances)
  29. Wararnt requirements
    • 1) PC;
    • 2) Must describe person, place, time, and expectations
  30. Implied authority given by arrest warrants (beyond arresting someone
    To search "wingspan" surroundings
  31. Warrant staleness
    Warrants lose their efficacy; e.g., I think guy has drugs so i get a warant, i can't wait two months––I have reason to believe you have contraband not, not in the future or past
  32. EXAM TIP: Police entry into home
    Highest level of 4th amendment protection invoked
  33. CI reliability test
    Totality of circumstances test
  34. Totality of circumstances test
    • Modified the Aguilar/Spinelli test:
    • 1) reveal basis of knowledge of informant (how they got the knowledge) and
    • 2) provide facts establishing either the veracity of the affiants informant or the reliability of the informant's report in the case

    • ToC Test: made this a disjunctive test. "PC is a fluid concept that can't be readilty reduce to a neat set of legal rules."
    • NB: Still show reliability, track records, basis of knowledge
  35. Knock and announce
    • Generally: Knock and announce required for entry by police
    • Exceptions: Reasonableness and exigent circumstances (e.g., flight/danger/spoliation risk demonstrated by sufficient ev.)
  36. Search incident to a lawful arrest
    • Cops can look anywhere suspect/item would be hiding/hidding
    • E.g., looking for suspect in a house in exigent circumstances would allow inspection of places suspect would hide; looking for stolen laptop after cop had legally entered house because of exigency would allow a greater search
  37. Purposes behind allowing search incident to lawful arrest
    Protect cops (weapson); avoice spoliation (destructivle ev.); look for means of escape
  38. Limits of a search incident to lawful arrest
    Wingspan. Can search person and area around you wher eweapon or ev could be stashed (only applies in custodial arrest)
  39. Protective sweep
    • Cop must have reasonable belief based on specific and articulable facts which, taken together w/ rational inferences from those facts that reasonably warrant thofficer in believing them
    • E.g., cops found one suspect, but one is still unseen, they can search the house where found suspect was captured in places a person might hide (i.e., they couldn't search through drawers, etc.)
  40. Automobile exception
    Cops w/ probable cause to believe a car has contraband can search the car
  41. Extent of serach pursuant to auto exception?
    • Anywhere and in the same manner as if a search warrant was obtained. The only limitation is reasonableness of the search.
    • E.g., looking for a stolen TV would allow looking in a trunk, but not cutting open seats; looking for contraband liquor could required cutting open seats since that's where bootleggers hid it
  42. Warrantless inventory
    • Allowed. Blanket inventorying w/ no discrection in the matter is best (helps protect state from theft claims, etc.)
    • What about private parties that find contraband? They might be made state actors, so they might have to reach reasonableness requirements
  43. Search incident to citation
    • Not allowed.
    • If officer stops someone, he can:
    • 1) Write a ticket, if no PC to search, send them on their way
    • 2) Write a ticket, if there is PC to search, he can search
    • 3) Arrest the malfeasor and search
  44. Reasonable stop
    Long enough to pull malfeasor over and write them a ticket. If longer, it's unreasonable unless the officer places him under custodial arrest
  45. Chadwick auto exception
    Can't use to search someone's priv. property (no longer good law)
  46. Acevedo auto exception
    If PC to search a car, you can look in all areas where contraband may be (e.g., drugs could be in backpak in the trunk; didn't explicityly overrule Chadwick because cops had PC to pull Acevideo over)
  47. Searching personal items seized pursuant to arrest
    Allowed. No warrant needed because it's in the suspect's wingspan (e.g., paint chips on clothse found contemporaneously w/ the arrest)
  48. Inventory of perosonal items seized pursuant to arrest
    Allowed. A std., discretionless procedure is reasonable. Deters false claims and careless handling of articles taken form arrestee (ct. shouldn't administer routine police procedures)
  49. Cupp search
    • (Guy strangles his wife, went to station, they saw him trying to scrape ev from under this fingernails)
    • Voluntary assent to going to station and bineg subjected to general/exigent search is okay
  50. State actors examples
    • 1) Employees of the state
    • 2) Private citizens (e.g., when hotel clerk allows police into a room at police direction to do so)
    • 3) Private college that receives fed funding
  51. Consent given from invalid warrant
    Not valid consent. 4th amendment violation.
  52. Do cops have to give all options? E.g., "You don't have to assent to our request to search"
    • Nope. Look at totality of circumstances; if they were given a choice isa factor, but is not dispositive
    • E.g., N. Korean visitor (who is used to brutal police) is asked by a cop to search; N. Korean had no real choice
  53. Bostick search
    • (Bus serach, blocked exit case; dragnet, suspicionless search was okay)
    • Would a reasonable person feel free to decline cop's request?
  54. Shared spaces and consent
    • Anyone you voluntarily share your expectation of priv. w/ can consent; it's the risk you take when sharing priv.
    • NB: 6 roommates in a house; all can consent to common room search, but can only consent to search of their own rooms
  55. Apparent authority to consent (but not actual authority because space was not shared)
    • Is enough to allow cops in; cop's action would be reasonable if they thought person had the ability to consent
    • Problem: Discourage follow-up questions so cops don't have to see if actual authority exists
    • Dispositive Q: Did cops behave reasonably?
  56. Effect of denial of entry contemporaneously w/ space sharer's consent
    One space sharer can override another. If cops want entry, use assenting space-sharer's testimoney to get a warrant
  57. Plain view exception
    • 1) Police have lawful reason for being somewhere;
    • 2) Probably cause for search
    • (E.g,, overturning turntable to check serial number-–couldn't tell just by looking that it was stolen)
    • NB: Inadvertence is not a requirement! It is a factor, though
  58. Privacy expectation in trash
    • General rule: None. Unless something was done to show that thye expected it to be kepy private.
    • Reasoning: Persons have no expectation in privacy in the numbers they dial, they voluntarily convey them to a phone co., this is similar, trash is voluntarily being conveyed to the trash co.
  59. Open field exception
    • No. Priv. expectation.
    • NB: Cops could be lisable for trespassing, but the exclusionary rule wouldn't apply because no 4th amendment violation
  60. Cost-benefit analysis of exclusionary rule
    Only exclude when the benefits of deterrence are higher than the costs of excluding the v.
  61. The Leon Exception
    • Warrants obtained int he absence of PC are valid so long as:
    • 1) Plice were actingin good faith;
    • 2) Police must have believed magistrate was neutral and detached
    • Redux: So long as cops were working under a good faith belief that they were following the reqs of obtaining a warrant, the ev. is not excluded
  62. Clerical errors and false warrants
    Not the cops' fault; ev. is not excluded––deterrence does not outweigh the costs (that is, excluding ev. will not avoid clerical errors)
  63. Inevitable discovery rule
    • "We would have found it, anyway."
    • If cts can conclude that police would have found ev. that they found by violating the Const. w/o the violation, the ev. stays in
  64. 3d party standing to challenge 4th amendmment violation
    • Doesn't exist.
    • Result: Cops can come into non-suspect's house and rrest an actual suspect
    • NB: The dispositive Q is whether visitor had an expectation of priv.; overnight guest, yes; short-term visitor who's just there to pack coke, no.
  65. Exception to 3d party exception to exclusionary rule
    Overnight guests in others' houses have expectation of priv.
  66. Plain view in vehicles
    • 1) Offiercer lawfully present;
    • 2) Sees something that is reasonably, on its face, ev. of a crime;
    • 3) Cop may do what cops do when stopping car (e.g., ins. check, regis. check)
    • 4) Cop may also ask to see car VIN, if in the process he sees  something in plain view, it's allowed in
  67. Fruit of Poisonous Tree
    • If info that lead to getting v came from an illegal axn, you can't use that ev.
    • NB: Even warrants can be fruit of poisonous tree (unless Leon applies)
  68. Fruit of poisonous tree––Intervening event
    If there's a break in the chain of causation, ev. is admissible
  69. Illegal arrest effect on ev. admissibility
    • If the ev. is obtained separately from the illegal arrest (e.g., it's not obtained while they're illegally cuffing suspect), it's admissible.
    • "We have all the ev. we need to prosecute him outside of the illegal arrest, so this act is okay (for 4th amendment purposes)."
  70. Terry Stop
    Investigatory stops based upon reasonable and articulable suspician are okay
  71. Terry Frisk
    Patting down outer clothing to look for dangerous items is okay; must have reasonable and articulable suspician that a person poses a danger
  72. 3d-party info as basis for Terry frisk
    • Allowed.
    • NB: But must be a reason to believe they pose a risk:
    • e.g.,
    • Fla v. J.L.: "Black male wearing plaid shirt has a gun." Was not valid
    • Wardlow: Just because people walk away from cops ≠ reasonable, articulable suspicion
  73. Terry stop and traffice stops––Reasonable period
    • Cops have long enough to figure out what's up (e.g., time to seek a wararnt, etc.)
    • NB: Investigatory stops can be even as long as 30 min, so longa s the reason for the delay is reasonable ("The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.")
    • NB: Four hours is okay in some circumstance (e.g., to see if a suspect passes a heroin balloon)
  74. Terry frisk and finding non-weapon cotraband
    Cops shouldn't ignore what they find in a legit Terry frist, but they can go too far; e.., feeling an obvious non-weapon lump in a pocket and moving in his fingers, etc.
  75. Terry stop for ID
    • MUST be reasonable, articulable suspiciion, can't justu stop someone to get their ID (and then arrest them if they don't)
    • Hiibel, drunk man, taunting police, did give reasonable, articulable suspiciion to get his ID/arrest him
  76. Sobriety checkpoints
    Okay. Non-discrectionary, brief, and important gov't interest.
  77. Drug checkpoints
    • Not okay. No direct relation between driving and drugs w/in a car
    • Takeaway: Can't stop to look for general criminal investigation purposes.
  78. Strop/body cavity searches in prison processing
    • Okay. Even for non-violent and misdemeanor crims.
    • Public police: Jailers are responsible for the safety of every prisoner in the joint; prevents contraband from entering––even non-violent offenders can get arrested on purpoes to sneak in contraband
  79. Parole officers and seraches
    Can perform "administrative searches" w/ no worry of 4th amendment violations; regular cops can't enter w/o warrant, P.O.'s can
  80. Problem of "officers of public safety"
    Hybrid cop/firefighters––Firefighters have far more "exigent" situations in which they can act (e.g., I'm here to inspect a cod violation.)
  81. Permission to seize
    Takes away a 4th amend violaiton
  82. Forcible removal from home to obtain fingerprints
    Not okay.
  83. Search by school admin
    Okay. Not a search for criminal activity, search to protect sutdents in school and to enforce school rules (reasonable suspicion probably required)
  84. Search by school police officers
    Different from admin. School police officers are still plice officers.
  85. Search of person by school-provided-medical-profession
    Perhaps okay, but can go too far ("Come to the office and strip.")
  86. Fed. regulated employer mantdating drug tests
    Okay. Narrow (e.g., only after accident or at yearly physical), dealing w/ an activity that had a huge impact on public safety
  87. Admin junk yard searches
    Okay. Junk yards had to keep meticulous records or they could become a chop shop
  88. Carnara v. San Fran
    Ct. said it was okay to go to a person's house, tell them they wanted to inspect for earthquake readiness, an, if person didn't let them, they could get a warrant (w/o probable cause)
  89. Dunaway and Terry stops
    Taking a person into custody (w/o arrest because there is no PC) and in which they'd be physically restrained f they tried to leave is not a brief, investigatory stop. Unreasonable.
  90. Miranda efefcts upon the exclusionary rule
    Can attentuate the connection between illegal seizure and inculpatory ev/statements
  91. Voice seizure
    Not an illegal seizure. Not asking to display something considered private
  92. Police lying to gain permisison to invade privacy
    • It's okay. Otherwise, no undercover work coudl be done. (Even if they sign a statement verifying they aren't cops!)
    • NB: Can't lie and say they have a warrant; but they can life and say they're going to buy drugs
  93. "Snitches"
    When you speak to someone, you take the risk that they're a snitch and you do so at your own peril
  94. Cameras recording externals of private home
    Okay. External ≠ private
  95. GPS devices
    • Depends. did cop trespass to place on vehicle? If so, fruit of poisonous tree.
    • NB: Jones began a shift of SC jurisprudence, Katz now means that 4th amendment protects people and places.
  96. IR devices
    Not okay to use.
  97. Technology and cops
    There is a line to be drawn in regard to law enforcement use of technology
  98. Entrapment
    Gov't actor induces someone into doing something he would not have done otherwise w/o the inducement; that it, the gov't implants the idea into an actor's head
  99. Miranda--Most important factors
    • 1. Custody
    • 2. Interrogation
  100. Miranda––Components of warning
    • 1. Right to remain silent
    • 2. Anything said can be used against you in court
    • 3. Right to an attorney
    • 4. Can invoke right at any time
  101. When in jail and questioned in a room (not a cell) w/ open door, is Miranda needed?
    Nope. No custody, even though you're in jail.
  102. Post-Miranda confession admissibility after pre-Miranda eliciting of confession
    May not be admissible (depends on whether confession was tainted)
  103. Must Miranda rights be affirmatively invoked?
  104. Miranda––Pseudo-interrogation statements made to another officer, NOT the D
    Any response by D will be admissible, this is not considered an interrogation
  105. Non-mirandized statements and impeachment
    Can use them. Miranda does not facilitate perjury.
  106. Non-Mirandized, coerced statements and impeachment
    Not admissible. Const. violation
  107. Types of Immunity
    • Transactional (highest protection)
    • Derivative use ( = 5th amendment)
    • Use (lower than 5th amendment; can't compel testimony)
  108. When is right to counsel invoked?
    After the beginning of a criminal prosecution?
  109. When does a criminal prosecution begin?
    Fluid concept.

    Indictment? Probably. Arraignment? Definitely.
  110. Right to counsel in all meetings? 
    Nope. Only critical meetings.
  111. Does an arrest invoke right to counsel?
    Nope. Neither does questioning. Right is only invoked when they decide to bring charges.
  112. Public Safety Exception
    Can't have dangerous contraband lying around
  113. Gideon: Right to counsel fundamental?
  114. Right to counsel––Appeal of Right
    You have one. 
  115. Right to Counsel––Discretionary review
  116. Right to Counsel––Misdemeanors
    Yep, so long as jail time is on the line.
  117. Right to Counsel––Compulsion to accept counsel
    Can't do it.
  118. What is effective counsel?
    • Low bar.
    • Two prong test:
    • 1. Atty performance was outside the wide range of professional competent assistance; and
    • 2. D must show poor performance affected the outcome of the trial (requires clairvoyance)
  119. Effective counsel in plea bargains
    • Two prong test:
    • 1. D would have accepted the bargain had he known of it; and
    • 2. Neither prosecution nor trial court would have revoked the offer
  120. Right against self-incrimination
    Coerced statement are never, ever allowed in as ev. or as impeachment
  121. Spano coercion
    Psychological coercion can make statements inadmissible
  122. Source of coercion effect upon statments
    Coercion must come from the cops, not an external source (e.g., voices in your head, conscience)
Card Set
Criminal Procedure
Criminal Procedure Flash Cards