Professional Documents
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FOURTH AMENDMENT
I. GENERAL
a. The governmental search and seizure of persons, houses, papers, and effects must be reasonable b. Warrants shall have probable cause supported by oath/affirmation describing the searches and/or seizures c. Fourth Amendment applies when a government of the United States searches or seizes a person in the United States d. State action is required e. The Fourth Amendment has been incorporated through the Fourteenth Amendment and applies to the states f. The Federal Constitution is a floor that grants only minimal rights
g. State Constitutions can grant more protection than the Federal Constitution
II.
SEARCH
a. KATZ TEST: Actual subjective expectation of privacy on part of AND objectively reasonable expectation of privacy (recognized by society as legitimate) b. Reasonable expectation of privacy i. "Plain Feel Searches" if "probing tactile examination" of property ii. Thermal Detection Devices detecting heat from inside the home 1. Where technology allows police to view in the home, consider the availability of the technology to the general public (eyeglasses v. night vision gogglesmore available to society = less likely a search) c. No reasonable expectation of privacy i. OPEN FIELD: Search in an open field is not a search UNLESS 1. Curtilageproximity to the home, enclosures, use of area within curtilage, steps taken to protect from passers-by ii. Assumption of Risk: Pen registers and the like. 1. Consensual electronic surveillance is not a search because one "assumes the risk" that another will relay communication to the police
2. Where police request bank records 3. Where police request pen registers 4. Numbers left on pagers by callers BUT a. Owner of pager has reasonable expectation of privacysimilar to address book iii. TRASH: No reasonable expectation of privacy in trash UNLESS 1. In the curtilage iv. Public Areas 1. Homeless persons have a reasonable expectation of privacy in their belongings placed on public property BUT NOT stuff on private property 2. No reasonable expectation of privacy in a bathroom stall where anyone could observe from outside the stall v. AIRPLANES + HELICOPTERS: No reasonable expectation of privacy under aerial surveillance UNLESS 1. Overflight disturbs property vi. Police dog sniffing is not a search if all it reveals is the presence of an illegal substance BUT cannot be grounds by itself for opening the container 1. SUI GENERIS
III.
SEIZURE
a. Interference with property rights b. Interference with personal freedom (Arrest) c. Forcible Stop is a seizure if individual is made not to feel "free to leave" under the circumstances d. If the individual is "free to leave" under the circumstances, it is a mere encounter
IV.
PROBABLE CAUSE
a. Search: Probable cause to believe there is evidence of a crime therein b. Seize: Probable cause to believe the item(s) is evidence of a crime c. Arrest: Probable cause to believe the individual is guilty of a crime
ii. INFORMANTS: Persons giving information as basis for probable cause 1. Veracity and reliability of the Information a. Citizens presumed truthful b. Officers presumed truthful c. Hearsay is O.K. unless it's the only basis for probable cause d. Police Follow-Up Investigation to corroborate information iii. Neutral and detached magistrate must find a fair probability that evidence of a crime will be found/fair probability that the individual committed the crime iv. Reviewing court must find a substantial basis for magistrate's conclusion that probable cause existed V.
Terry Stop & Frisk + reasonable suspicion ( see a couple steps below as well)
a. lesser standard than probable cause i. e.g. see some sketchy looking dudes, stop them for having expired tags b. If police have i. reasonable suspician of criminal malficience; ii. supported by articulable facts; iii. they may detain a person for investigative purposes. (Terry v. Ohio) iv. AND may frisk the detainee for weapons c. Detention duration: Must be no logner than neccesary to conduct a limited investigation to verify the suspician.
i. If, during the detention, the cop finds probable cause, the detention becomes
VI.
v. Copy and receipt for property seized vi. Remediesmotion to return unlawfully seized property or motion to suppress
1. Examples of Exigent circumstances a. Hot pursuit of a fleeing felon b. Imminent destruction of evidence c. Need to prevent a suspects escape d. Risk of danger to the police or to other persons inside or outside of the dwelling 2. Standard for Determining When Exigent Circumstances a. In the absence of hot pursuit there must be at least probable cause to believe that one or more of the other factors justifying the entry were present ant that in assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered
b. Felony or misdemeanor in the presence of the officer does not require a warrant c. Where there is probable cause to believe a felony has been committed, no warrant required to arrest d. Where a misdemeanor-fine only offense is committed in the presence of an officer, no warrant required to arrest
IX.
X.
SEARCH INCIDENT TO ARREST : (HAD NO WARRANT TO SEARCH PERSON AND GRAB-ABLE AREA)
a. First, police must have probable cause to arrest b. Generally: After an arrest, officer can search area within the arrestee's immediate physical control, or the "grab area" at the time of the arrest for protection and preserving evidence i. Officers can also secure the premises by "sweeping" the area for protection c. AUTOMOBILES: After an arrest, officers can automatically search the interior of the car i. Reachable from the interior (NOT the trunk) ii. Panels IF no damage done iii. Containers in the interior d. Search after issuance of a traffic ticket is NOT an automatic justification to search the interior of the car e. FALSE PRETENSE OKAY: Search after a Patrol Stop: Once officer has probable cause to believe a person has committed a traffic offense, officer can pull the car over regardless of motive. f. PolicyOFFICER SAFETY AND PREVENT DESTRUCTION OF EVIDENCE
XI.
b. Imminent destruction of evidence c. Need to prevent a suspects escape d. Risk of danger to the police or to other persons inside or outside of the dwelling 4. Standard for Determining When Exigent Circumstances a. In the absence of hot pursuit there must be at least probable cause to believe that one or more of the other factors justifying the entry were present ant that in assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered
d.
XVIII.
ADMINISTRATIVE SEARCHES
a. Totality of the Circumstances AND b. No warrant requirement i. Balance public interests against private interests
i. But for the illegality, the evidence would not have been obtained AND ii. Illegality was the proximate cause of the evidence being obtained 1. TEST: Whether, considering the totality of the circumstances, the independent free will of the OR an intervening event broke the chain of causation
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Exceptions
i. Independent Source DoctrineIf the search or seizure was independent from any violation of the Fourth Amendment, the evidence is admissible 1. Illegality NOT used to establish probable cause for warrant 2. Exceptionillegality used to establish probable cause AND grossly intrusive police behavior 3. Problemsopens the door to confirmatory searches BUT is not happening in practice (officers do not try to violate the Fourth Amendment) ii. Inevitable Discovery DoctrineIF the evidence would have inevitably been discovered absent the violation of the Fourth Amendment, the evidence is admissible 1. Preponderance of the evidence that a. Officers would inevitably discovered the evidence linking to the crime b. Officers were already looking in the place where the evidence was iii. Good Faith Exception 1. Good faith, reasonable reliance, on a defective warrant issued by a neutral magistrate, the exclusionary rule does not apply 2. Exceptions a. Misleading evidence b. Magistrate is not neutral c. Police submit clearly insufficient affidavit d. Warrant is facially deficient 3. Policyonly apply exclusionary rule for police misconduct, not magistrates mistakes
FIFTH AMENDMENT
I. GENERAL
a. No person + shall be compelled + in a criminal case to be a witness + against himself
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II.
ELEMENTS
a. "PERSONS" i. Fifth Amendment is a personal right. One cannot rely on the Fifth Amendment for other people ii. Privilege does not extend to corporations, partnerships, or other types of legal business entities EXCEPT sole proprietorships
b. "COMPELLED" i. State's use of contempt power is compulsion because it poses substantial punishment on person who claims the privilegepresents the witness with the cruel trilemma of choosing between self-accusation, contempt, and perjuryeach of which could lead to imprisonment
d. "CRIMINAL CASE"
i. Prohibits the Government from compelling individuals to provide incriminating testimony in any proceeding if their answers might tend to incriminate them in an ongoing or future criminal proceeding ii. Silence cannot be used as evidence against in a criminal case BUT iii. Silence can be used as evidence against in a civil case iv. Fact finder can draw "any reasonable inference" from the 's silence in a civil case
e. "AGAINST HIMSELF"
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i. Immunity takes away the Fifth Amendment Privilege 1. Transactional immunity is a complete bar to any future prosecution of the who is granted immunity 2. Use immunity is not a complete bar to any future prosecution of the who is granted immunity, but bars the prosecution from using the immunized testimony against the
III.
IV.
c. MIRANDA RIGHTS
i. Right to remain silent (Fifth Amendment) ii. Anything said can and will be used against you in court (consequence, not a right) iii. Right to the presence of an attorney during questioning iv. Right to have attorney appointed if you cannot afford one (not mandatory if police know you can afford an attorney)
d. CUSTODIAL INTERROGATION
i. Custody 1. Whether, under the totality of the circumstances, the suspect has been deprived of his freedom of action in any significant way (free to leave) a. Arrests generally, but NOT Terry Stops ii. Interrogation
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1. Express questioning OR 2. Functional equivalent of express questioning a. Any words or police action which the police should know is reasonably likely to elicit an incriminating response from THIS suspect
V.
IDENTIFICATIONS
a. Formal Chargesany police lineup after formal charges have been brought requires the presence and participation of counsel i. PolicyPrevent suggestive lineups
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b. No Formal Chargesbalance the benefit to the individual in having counsel present WITH burden on society to have counsel present at this identification i. Totality of the Circumstances c. Permissible suggestiveness i. Early Identificationsfresh in witness' mind, exonerate the accused ii. Independent SourceIf witness is able to identify suspect without any suggestiveness and from an independent ability to identify the suspect the evidence of identification is admissible iii. Photographic Identifications generally do NOT require the presence of an attorney
SIXTH AMENDMENT
I. GENERAL
a. In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel b. The accused in felony cases have a fundamental right to counsel c. The accused in misdemeanor cases have the right to counsel IF the benefits of providing counsel outweigh the costs to society of providing counsel d. The accused in other cases will have the right to counsel IF liberty is at stake, but NOT if money is at stake i. Gives trial judge choice between appointing counsel and being free to sentence to imprisonment OR forego appointing counsel and be barred from sentencing to imprisonment
II.
g. Right to use of experts attaches if competent representation would require the aid of experts
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III.
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