Procedure

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ShannonHeichel
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153151
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Procedure
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2012-05-09 19:49:48
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Criminal Procedure
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Criminal Procedure Final review
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  1. The fouth amendment seizure of a person is an _____?
    Arrest
  2. 2 Requirements of a Lawful Arrest.
    • Probable Cause- Always
    • Sometimes an arrest warrant as well
  3. An arrest warrant is not needed for??
    Murders, felonies, or misdemeanors which occur in the officers presence.
  4. In most cases an arrest warrant is needed to arrest for a past misdemeanor.
    Exceptions include:
    • Theft
    • DUI
    • Domestic Assault
    • and Scattering rubbish on the highway
    • Officer can arrest for those even if they are past misdemeanors
  5. To arrest a defendant in his/her home,
    Officers need:
    • A) Probable Cause to Arrest
    • B)Probable Cause to Believe the Defendant is in the Home.
    • C)An Arrest Warrant (there are exceptions)
  6. What are the Exceptions to needing an arrest warrant to arrest a defendant in their own home?
    • 1. There are exigent circumstances (such as hot pursuit)
    • 2. The officers have consent to enter the home.
  7. When has an arrest occured?
    The Court will determine that the point in time when the arrest occured depends on the reasonable impression conveyed to the arrestee. The officers intent is not relevant.
  8. 4 essential elements for a search warrant
    • 1.Probable Cause
    • 2. Supported by Oath or Affirmation
    • 3. Particularly describing the place to be searched
    • 4. and the persons or things to be seized.
  9. When does probable cause for a warrant exist?
    • it exists if the facts and circumstances within the officers knowledge, and of which s/he has reasonably trustworthy information, are sufficent in themselves to warrant the conclusion urged.
    • *A crime has been commiteed and a particular person committed it*
    • -May use the totality of the circumstances test-
  10. What does supported by oath or affirmation mean?
    The officer must swear that the information that they have written in the warrant is true to their knowledge
  11. What does it mean to particularily describe the place to be searched?
    Should be described so well that any person who was looking for the location would be able to find it without issue.
  12. What is the 4 corners rule?
    The judge may not look outside of the warrant to see if there is sufficent probable cause. The officer may not supplement the information written in the warrant with additional information. The warrant must stand of fall based solely on what is written in the warrant.
  13. Requirements for a search warrant approval
    • A. The 4 corners rule
    • B.There are no phone approvals
    • C. Only Judges with jurisdiction over the place to be searched can approve the warrant
    • D. The Judge must be neutral and detached
  14. 4 Kinds of Evidence
    • 1. Contraband
    • 2.Property used or intended to be used in the commission of a crime.
    • 3. Mere Evidence
    • 4. Fruits of the crime
  15. What is Contraband?
    Property that is unlawful per se. (drugs, stolen items, prohibitive offensive weapons, etc)
  16. What is property designed or intended to be used in the commission of a crime.
    For instance pry bars, glass cutters, kitchen knives, - property which is normally lawfully possessed, but becomes seizable becasue of its connection to criminal activity.
  17. What is Mere Evidence?
    nontestimonial evidence which will aid in a particular apprehension or conviction. (for instance-particular clothing that an individual was wearing at the time of the crime)
  18. What are fruits of a crime?
    • what the defendant gained as a result of their criminal activity.
    • -Money earned from drug transactions
  19. Can police seize items that are not listed on a seach warrant?
    • Officers may seize items not named on the search warrant if the officer is where s/he is allowed to be, looking where s/he is allowed to look, and it is apparent that the item is subject to seizure.
    • -For instance you would not find a bull dozer in a desk drawer.
  20. If an officer has probable cause to search a dwelling what can s/he do until a warrant arrives?
    guard the dwelling until the warrant arrives.
  21. Why can an attorney be kept out of a home during a search?
    The defendant has no right to have an attorney present during the execution of a search warrant.
  22. In Pennsylvania, a search warrant must be executed within __hours of its approval.
    48
  23. Officers must have special judicial approval to execute a search warrant WHEN?
    at night (10pm-6am).
  24. In general, officers must “knock and announce” before entering to execute a search warrant. Officers may forego the “knock and announce” if:
    • 1. the officers have a reasonable belief the occupants are fleeing
    • 2. the officers have a reasonable belief the occupants are destroying evidence
    • 3. no one is home
    • 4. the occupants refuse to let the officers in 5. knocking and announcing would endanger the officers’ lives (the prosecution must prove this)
  25. Officers must read the warrant to the occupant, and __________________________?
    Officers must read the warrant to the occupant, and leave a copy at the dwelling.
  26. FAILURE TO ADHERE TO THE RULES FOR EXECUTION OF A WARRANT ....
    WILL NO LONGER RESULT IN SUPPRESSION OF THE EVIDENCE SEIZED AS A RESULT OF THE EXECUTION OF THE WARRANT.
  27. HEARSAY may be used in the affidavit of probable cause if :
    • the officer can establish in the affidavit of probable cause his/her
    • reasons for believing the informant is telling the truth (that is,
    • establish in the affidavit the credibility of the informant) and the
    • reliability of the information provided by the informant.
    • (Aguilar-Spinelli rule).
  28. What is Hearsay?
    Hearsay is “an out of court statement offered by someone other than the person testifying or speaking, and offered for the truth of the matter asserted.”
  29. Generally there are three sources of hearsay:
    • An anonymous tip – even the officer doesn’t know the identify of the tipster
    • A disclosed informant – a witness who is willing to be openly identified
    • An undisclosed informant – only the officer knows the informant’s identity
  30. What is The “SUBSTANTIAL BASIS TEST”?
    It is the test a Court uses to review and rule on the correctness of a lower Court’s ruling. Even if an appellate court judge would have ruled differently from the lower court judge, the appellate court judge will not overrule the lower court judge if the lower court judge had a “substantial basis” for ruling the way s/he did.
  31. What is the problem with the warrant clause in the 4th amendment?
    Scholars debate whether the Fourth Amendment prohibits warrantless seizures, or merely unreasonable seizures. (If the latter is true, then what is the purpose of the warrant clause?) So far, however, the Court seems to begin its reasoning with the premise that warrantless searches are unreasonable searches. So, if an officer wants to conduct a search, the rule is that she must first obtain a warrant, UNLESS the search falls into one of the many judicially accepted exceptions to the search warrant requirement.
  32. Terry v. Ohio (1968)
    Resulted in TWO rules of law, giving police officers an additional tool to fight, and actually PREVENT crime. This phenomenon is called a Terry stop, an intermediate response, and a stop and (maybe) frisk.
  33. Terry argued that Officer McFadden did not have probable cause, and therefore could not stop, frisk, search or arrest him. The prosecutor argued that the Officer observed suspicious behavior that would lead any reasonable person to believe that a crime of violence was about to occur. He further argued that Officers, in that situation, should be permitted to infringe on individual rights, to some degree, to investigate these reasonable suspicions. The U.S. Supreme Court agreed and held:
    1) A police officer may, in appropriate circumstances and in an appropriate manner, temporarily stop, detain and question an individual, if the officer can point to specific and articulable facts, which along with their reasonable inferences, lead him or her to reasonably suspect that criminal activity is afoot. The Court reasoned that police officers should not only solve crime once it has occurred, but should have the authority to PREVENT crime as well.The Court continued with the second rule of law, because Officer McFadden didn’t just “detain” Terry, he also “frisked him. So because they want officers to be safe, they held that:2) Furthermore, if the officer can also point to specific and articulable facts, which, along with their reasonable inferences lead him or her to reasonably suspect that the individual may be armed and dangerous, (s)he may perform a carefully limited search of the outer clothing to determine whether or not the suspect is armed.
  34. stop and maybe frisk
    Officers are not permitted to frisk on every stop. That’s why we call it a “stop and maybe frisk”. The officer must have reason to believe the suspect is armed and dangerous to conduct the patdown (a flathanded touching of the outer clothing. The purpose is to keep the officer safe.
  35. Michigan v. Long (1983)
    =Terry in a car. If the officer can articulate specific facts, which along with their reasonable inferences, lead him or her to reasonably believe that the occupant of a vehicle may be armed and dangerous, (s)he may search the passenger compartment of the vehicle, and all opened and closed containers therein, for weapons only. Note that the officer cannot search the trunk – the theory is that the suspect could not quickly get to the trunk to get a weapon with which to hurt the officer.
  36. Minnesota v. Dickerson (1993)
    Where a police officer has lawfully affected a stop based upon reasonable suspicion, and has performed a patdown also based upon a reasonable suspicion, (s)he may seize objects which from their "plain feel" give rise to probable cause to believe that they are unlawfully possessed. Note that the "plain feel" cannot exceed the permissible scope of the frisk under Terry. That is, it must be a flathanded patdown by which the officer develops “probable cause” to believe that what he is feeling through the fabric is contraband. Here, in this subset of Terry, we finally see a requirement of “probable cause to search”.
  37. Chimel v. Ca. (1969)
    • In Chimel, the Court actually restricted law enforcement authority. Prior to 1969, officers would search the entire area in which the arrest took place, just by virtue of the arrest. If the arrested a defendant I his house, they searched the house, without a search warrant.In Chimel, officers, armed with an arrest warrant (necessary if you want to arrest a defendant in his house), arrested Chimel at home and charged him with burglary of a coin shop. They asked if they could search his house. He refused. They searched anyway, and found coins stolen in the burglary of the coin shop. Chimel filed a motion to suppress the coins, and the issue went to the U.S. Supreme Court. The Court held: incident to a lawful custodial arrest, officers may search the arrestee and the area within his/her reach or control in order to protect the officers and others in the area, and to preserve evidence.
    • - Officers can search the arrestee down to his skin (no invasive searches);
    • - Officers can search the area within his reach or control (this will differ in every case – depending on the location and the agility of the arrestee)
    • - Officers can search anything the arrestee is carrying or anything within his reach and control
  38. Probable Cause is not needed for a search incident to arrest because.....
    THE ARRESTEE LOSES A PRIVACY INTEREST IN HIS PERSON AND THE AREA WITHIN HIS REACH OR CONTROL BY VIRTUE OF THE LAWFUL CUSTODIAL ARREST.
  39. So what can officers search FOR incident to a lawful custodial arrest?
    ANYTHING.
  40. N.Y. v. Belton (1981)
    incident to the lawful custodial arrest of an occupant of a vehicle, officers may search the arrestee and the passenger compartment of the vehicle and all open and closed containers therein (but not the trunk!). The Court permits officers to search the passenger compartment even if the driver has been handcuffed and placed in the patrol car. (Overruled in part by Gant.)
  41. Arizona v. Gant (2009)
    Gant overruled Belton. In Gant, the U.S. Supreme Court held that “police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of the arrest.”
  42. Comm. v. White (1995)
    in Pennsylvania, police officers may not search the passenger compartment of a vehicle once the arrestee has been removed from the vehicle. The logic is that the passenger compartment is no longer within the reach or control of the arrestee at the time of the search. It appears that the Pennsylvania Supreme Court was well ahead of the U.S. Supreme court on this issue.
  43. An inventory of an object or a person may be made without a search warrant as long as:
    • a) the object or person is lawfully seized by the police, and
    • b) the police have a standard, routine inventory procedure. No probable cause to search is needed. Inventories are not searches, but simply a recording of the items that have come into the possession of the police. Theoretically, this protects police officers from false civil suits, and it keeps the officers safe.
  44. Schmerber v. California (1966)
    It is not a violation to take someones blood as a search portion of an arrest. It is an exigent circumstance and blood alcohol dimishes quickly.
  45. Evidence which falls in the plain view of an officer who has the right to be where (s)he is and the right to look where (s)he is looking is not subject to the warrant requirement. The specific requirements are:
    • 1) The officer must have legal justification to be in a constitutionally protected area,
    • 2) The officer must be looking where (s)he is allowed to look,
    • 3) It must be immediately apparent that the object is subject to seizure (evidence, contraband, etc.)
  46. NOTE THAT THIS EXCEPTION TO THE SEARCH WARRANT REQUIREMENT INVOLVES THE ENTRY BY THE POLICE INTO A ___________
    A CONSTITUTIONALLY PROTECTED AREA.

    A street or sidewalk is not a “constitutionally protected area” – that is, no one really has an enforceable privacy interest there.
  47. ABANDONED PROPERTYCourts have held that no "search" occurs where police observe property which has been voluntarily discarded. Generally, the Court must conclude that the property was voluntarily abandoned, and not the result the police coercion. To decide, the Court will look at the following factors:
    • 1) the nature of the place where the evidence was found
    • 2) indications of intent to abandon the property
    • 3) lawfulness of the police behavior (the abandonment cannot be “coerced” by the police)
    • 4) the defendant's reasonable expectation of privacy in the objectex. California v. Greenwood - no expectation of privacy in trash left at curbside for pickup
  48. Consent
    Police officers may search without a warrant where VOLUNTARY consent is given by one who has the AUTHORITY to consent. VOLUNTARINESS must be proven by clear and convincing evidence. That the "consenter" had the AUTHORITY to consent must be proven by a preponderance of the evidence.
  49. Two issues with consent:
    • 1.Was the consent knowing and voluntary?
    • 2.Did the person who gave the consent have the authority to give that consent?
  50. What level of proof is needed to prove consent was voluntary?
    Clear and Convincing evidence
  51. Who can consent to a search?
    • Husband/wife – either has the authority to consent to a search of the common domicile; however, if one spouse refuses to consent, the police cannot proceed with the search;
    • Landlord/tenant – generally, a landlord has no authority to consent to a police search of a house or apartment he has leased out; this is true even if there is a clause in the lease giving the landlord the right to unannounced inspections; of course, the landlord could see something and inform the police.
    • People sharing an apartment – look to “common authority” and “mutual use”; if everyone has access and use to all of the rooms, any one of the lessees can consent to a police search. However, if you have a separate bedroom and have a big “no trespassing sign” on your door, and lock it when you leave, then your roommate does not have “mutual use” or “common authority” over your bedroom and therefore has no authority to consent to a police search of your room.
    • Employer/employee – once again, use the “common authority and mutual use” reasoning – each case will differ
  52. The level of proof necessary to prove that someone had the authority to consent to a search....
    a preponderance of the evidence
  53. Carroll v. U.S. (1925)
    Police officers who have probable cause to search a vehicle may do so without a search warrant. In this case, federal officers developed probable cause to believe that Carroll was transporting moonshine. They pulled him over and searched the car. In the trunk they found the illegal alcohol. The Court held that there is a lesser expectation of privacy in an automobile, (it travels on public thoroughfares, it is regulated by the government (license to drive, registration insurance and traffic laws), it is rarely a repository for personal effects (hmmm …. The Court never saw my car). The court also held that the mobility of the auto provided its own kind of exigency. So they said that all that was needed to search a vehicle was probable cause to search. However, in a later case (Chambers v. Maroney), the exigency factor was gone because the officers had impounded the car in a police lot before searching it. Still the Court said that the search was lawful because based on probable cause.,
  54. Open Fields Search
    Police officers may enter onto fenced and posted "open fields" without a search warrant and without probable cause to conduct a search. The Court has held that there is no enforceable expectation of privacy in these “open fields” even if they are fenced, locked and posted.
  55. Aerial Surveillance
    police officers may fly in navigable airspace over private property to conduct a search without a search warrant and without probable cause. The logic is that private citizens can fly in private planes or helicopters over private properties, so the police should be able to do so as well. Police can even use highly sophisticated photographic equipment from the air to gather evidence, without a warrant and without probable cause.
  56. What are Adminstrative Inspections?
    Administrative inspections are not criminal searches. They are inspections to determine if there are regulatory infractions (health/safety laws in restaurants, hotels, hospitals, bars, gun dealers, etc.) Generally, it is a civil matter rather than a criminal matter. Most administrative inspections occur with the consent of the owner of the premises. However, if there is no consent.
  57. The rules of administrative inspections
    • A.Camara v. Municipal Court (1967) – Inspectors may conduct an administrative search of licensed premises without a warrant. (These establishments are open to the public, and normally sell alcohol, firearms, etc, and so it is in the public interest to permit inspectors to proceed without a warrant.)
    • B. Inspectors must obtain an administrative search warrant to perform an administrative search of unlicensed premises.
  58. BORDER SEARCHES
    • Individuals have a lesser expectation of privacy at the border, and some
    • cases hold that citizens have no enforceable expectation of privacy at
    • the nation’s borders.
  59. Skinner v. Railway Lab. Execs. Assn. (1989)
    the Federal Railroad Administration can administer blood/urine tests to employees involved in major accidents or incidents without a search warrant, without probable cause and without a reasonable suspicion of drug or alcohol use. Regulating the conduct of railway employees engaged in safety-sensitive tasks presents “special needs” beyond normal law enforcement and justifies departure from warrant and probable cause requirements.
  60. Nat’l Treas. Emp. Union v. Von Raab (1989)
    U.S. Customs Service required drug screening for employees seeking transfer or promotion to positions having direct involvement in drug interdiction or requiring the employee to carry firearms or handle classified material. The Court held that under the circumstances, no warrant, no probable cause, and no individualized suspicion was necessary. The government had a special need to ensure that front line drug interdiction personnel are fit, have impeachable integrity and are not impaired as to perception or judgment.
  61. Patriot Act (2001)
    this Act permits the FBI to issue National Security Letters (NSL’s) requiring people, businesses, and institutions to turn over information about individual and client activity upon demand. It is essentially an administrative subpoena. There is no warrant, no assertion of probable cause, no assertion of reasonable suspicion, and no judicial oversight. The standard for issuance is “relevance”, and that is determined internally by the FBI. The letter can include a procedure to be followed for non-compliance. The letter can also include a “non-disclosure” section forbidding the recipient from telling anyone that he has received this letter. It is estimated that 30,000 NSL’s are issued annually. The legality of NSL’s has yet to be reviewed by the U.S. Supreme Court.
  62. The Foreign Intelligence Surveillance Act (FISA) 1978
    authorizes electronic surveillance of phone calls and communications for the purposes of collecting foreign intelligence only upon approval of a FISA judge. In emergency situations, agents may conduct a warrantless surveillance if they obtain judicial approval within 72 hours.Former President Bush authorized violations of FISA by ordering the NSA to conduct widespread surveillance of electronic communications within the United States without seeking judicial approval.
  63. Former President Bush signed, the FISA Amendments Act of 2008 which_________
    broadly expanded the federal government’s power to conduct surveillance of Americans without a warrant or judicial oversight, essentially rendering the FISA court irrelevant. The Act also gave blanket immunity to telecommunications companies that turn over subscriber information, including phone and email records, to the government. The FISA Amendments Act is set to expire in 2012, but will most certainly be renewed by Congress.
  64. RIGHT TO COUNSEL (6TH AMENDMENT)
    Federal
    Pretrial ID
    • FEDERAL RULES
    • 1. Defendants have a right to counsel at a post-indictment line-up. (U.S. v. Wade)
    • 2. There is no right to counsel at a pre-indictment line-up. (Kirby v. Illinois)
    • 3. Therefore, on the federal level, the right to counsel attaches at indictment.
  65. RIGHT TO COUNSEL
    PA
    Pretrial ID
    • B. PENNSYLVANIA
    • 1. For pre-trial identification purposes, the right to counsel attaches at ARREST in Pennsylvania. (Comm. v. Richman)
    • 2. There is an exception to this rule for prompt, one-on-one, neutral location identifications because:a. they are deemed more reliable because they occur close in time to the offense, andb. it allows for the prompt release of an innocent suspect, andc. it allows for a prompt resumption of the chase if the police have seized an innocent person, and society has a strong interest in the prompt resolution of crime.
  66. THE INDEPENDENT BASIS TEST (U.S. v. Wade)
    Pretrial ID
    • 1. Where there has been a constitutional violation at a pretrial identification procedure, the Court will use the “independent basis test” to determine whether or not the in-court identification will be suppressed.
    • 2. The “independent basis test” requires prosecutors to prove by CLEAR AND CONVINCING EVIDENCE, that there is an independent basis for the in court identification - that is, that the in court identification has an independent basis from the tainted pretrial identification.
  67. DUE PROCESS (FIFTH AMENDMENT)
    Pretrial ID
    When the defendant alleges that the pre-trial identification was SUGGESTIVE, (s) he is alleging a violation of his/her Fifth Amendment due process rights. The due process clause of the Fifth Amendment will be deemed to have been violated if the pre-trial identification was so UNDULY SUGGESTIVE as to give rise to a substantial likelihood of irreparable misidentification.Some suggestiveness is okay. But the in court identification will be suppressed if and only if the pre-trial identification was so unduly suggestive as to give rise to a substantial likelihood of irreparable misidentification.
  68. MIRANDA V. ARIZONA (1966)
    • 1. Miranda warnings must be given when the individual is:
    • a) in custody (the reasonable impression conveyed to the arrestee) AND
    • b) being interrogated (any communication designed to elicit an incriminating response)
    • 2. Any individual subjected to custodial interrogation must be told BEFORE that interrogation that:a) (s) he has the right to remain silent (this is just a statement of her/his rights under the Fifth Amendment) AND
    • b) anything (s)he says CAN AND WILL be used against her/him in a court of law (officers may not "soft sell" Mirandas by changing the wording to "may be used against you" or "may be used for or against you"; such a change is a violation of Miranda)
    • c) s) he has the right to have an attorney present prior to and during any questioningd) if (s) he cannot afford an attorney, one will be provided free of charge (to comport with Gideon v. Wainwright and our Fourteenth Amendment equal protection clause)
  69. Berghuis v. Thompkins 2010
    the supreme court ruled that an arrestee must invoke the right to remain silent clearly. If he does not assert the right, but remains silent, and then responds to an incriminating question, his answer can be used in court even though he did not affirmatively waive his right to remain
  70. New York v. Quarles
    • Exception to Miranda warnings
    • :Wheres the gun"-Public Safety
  71. At the motion to suppress a confession , the prosecution must prove, by a preponderance of evidence, that:
    • 1. Mirandas were knowingly and voluntarily waived, and that
    • 2. The statement was voluntary.
  72. Boumediene v. Bush (2008)
    the High Court stated that individuals detained by the United States at Guantanamo Bay and designated as “enemy combatants” have the constitutional privilege of habeas corpus. Accordingly, it declared Section 7 of the Military Commissions Act unconstitutional.

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