Crim Procedure: 4th 5th 6th Amendments

The flashcards below were created by user mjabali on FreezingBlue Flashcards.

  1. standing: For 4th, 5th, 6th Amendment, violation must happen to the person asserting it (i.e. not a drug dealer if unconstitutional activity against defendant who bought drugs)
  2. 4th amendment applies to
    • - arrests
    • - searches
    • - seizures
  3. 5th amendment and Miranda warnings apply to
    self incriminating statements
  4. 6th Amendment applies to
    right to counsel
  5. 4th Amendment
    Standing rule
    D must be the victim of the search or seizure to assert a claim
  6. 4th Amendment: Who has standing?
    -At traffic stops: passengers and drivers 

    -overnight guests, homeowners, and those with a right to possession of a home
  7. 4th Amendment limits government actors, not private parties
  8. 4th amendment: arrests: seizure of persons: a person is seized by police when:
    - an officer, through physical force or show of authority, restricts the person's movement OR

    - if actions of the police do not show unambiguous intent to restrain, then must ask whether a reasonable person in the D's circumstances would believe he was not free to leave

    NY: the police are free to approach someone, but if the individual flees when a police officer approaches, that alone does not create probable cause to arrest
  9. 4th amendment: arrests: warrrants: generally the police do not need an arrest warrant, but an exception if police want to arrest an individual in his home, unless there is consent or exigent circumstances.
  10. arrests: warrants: exigent circumstances:
    - hot pursuit: if police have probable cause to believe an individual committed a felony and they are pursuing him to arrest him, they can enter a private building during the pursuit

    - emergency: if there is a reasonable apprehension that evidence will be destroyed or the safety of an officer or the public is threatened.

    • [NY- for searches, must have:
    • -nexus b/w the emergency and the area to be searched
    • -emergency is immediately attended to
    • - primary reason for the search is to address that emergency and not to pursue an arrest
  11. 4th amendment: arrests: Once have a warrant, police must knock and announce before making an arrest in a home, even with a warrant
  12. 4th Amendment: Searches occur when the government violates a reasonable expectation of privacy
  13. 4th amendment: searches: common areas where individuals expect a reasonable expectation of privacy:
    • 1) In the home, private areas of a store, a private business office, hotel room
    • ~ police using a thermal imaging device to detect heat within a home to detect drugs is a search
    • ~ police using a drug sniffing dog on a homeowner's property

    • 2) Physical search of the inside of luggage
    • ~ canine sniffs are not searches
    • ~ airport luggage search is okay
  14. 4th Amendment: searches: There is no reasonable expectation of privacy in these common areas:
    - anything you can view, smell, or hear from public property, including from airspace

    • - area beyond the curtilage of a home
    • ~ the land closely associate with a dwelling, but not open fields beyond that.

    - prison cell: but search must be founded on a reasonable suspicion that the arrestee is concealing evidence underneath clothing, and the search must be conducted in a reasonable manner

    - garbage left on the curb and other abandoned property

    - handwriting or voice samples

    - information given to government informants or undercover officers
  15. 4th amendment: search warrants: To get a warrant, police need:
    probable cause
  16. 4th amendment: warrants: probable cause is established by:
    - officer's personal observations

    - information from a reliable known informant

    - information from an unknown informant if the information can be independently verified

    - evidence already seized through lawful means (i.e stop based on reasonable suspicion)

    [NY: no requirement that probable cause be based on competent evidence; can be based on unsworn testimony

    informant's testimony must demonstrate the veracity or reliability of the source of information and the bias of the informant's knowledge]
  17. 4th amendment: warrant must state objects or place to be searched with particularity AND search must not go beyond the scope of the warrant
  18. 4th amendment: searches: exceptions to the search warrant requirement
    • - Incident to lawful arrest
    • - Exigent circumstances
    • - Stop and frisk
    • - Cars
    • - Plain view
    • - Consent
    • - Administrative Searches

  19. 4th amendment: searches: warrant exceptions: incident to lawful arrest rule
    Can search a person and area within the person's wingspan as long as the container being searched is large enough to conceal a weapon or evidence of a crime

    [NY: police cannot search containers within an arrestee's wingspan unless the police suspect that the person is armed and dangerous]
  20. 4th amendment: searches: warrant exceptions: stop and frisk: stop rule
    can stop if reasonable suspicion based on articulable facts that the detainees were or are involved in a crime

    - reasonable suspicion is less than probable cause and does not have to be based on personal knowledge. It can be based on informant if the tip is accompanied by sufficient indication of reliability 
  21. 4th amendment: searches: warrant exceptions: stop and frisk: frisk rule
    Can pat-down someone's outer clothing if there is reasonable suspicion that the suspect was involved in criminal activity and the frisk is necessary for safety. 

    ~ if the officer feels something that he can obviously identify, he can seize it. 

    [NY: police can make a warrantless seizure only of items they reasonably believe to be a weapon]

    - if frisking from terry stop of a car, police may frisk a driver or passenger if there is reasonable suspicion that the individual has a weapon.
  22. 4th amendment: searches: warrant exceptions: police can search car under three methods
    • 1. if probable cause that it contains contraband or evidence of criminal activity
    • ~ but cannot search passengers in the car under this basis. 
    • ~ may search passenger compartment after a terry stop of a car if reasonable belief the suspect is dangerous and may gain control of weapons but the search is limited to those areas where a weapon could be hidden
    • ~ may search entirety of the car and containers within if probable cause to search entirety of car

    2. if driver is arrested and arrestee within reaching distance of the passenger compartment at the time of the search OR officers have a reasonable belief that evidence of the offense may be found in the vehicle

    3. if driver arrested and car legally impounded, can search the entire car, including the trunk and containers within the car
  23. 4th amendment: searches: warrant exceptions: plain view rule
    If officer is in a house, he can seize evidence in plain view even if it's not in the warrant as long as:

    • - the officer is on the premises for a lawful purpose; AND
    • - incriminating character of the evidence is immediately apparent
  24. 4th amendment: searches: warrant exceptions: consent by D
    - if D consents to a search there is no need for a warrant

    [NY: any individual who operates a motor vehicle is deemed to have consented to blood, breath, urine, or saliva tests for drugs and alcohol if police officer has reasonable grounds to believe that the individual was operating a motor vehicle while intoxicated]
  25. 4th amendment: searches: warrant exceptions: rules for consent by a third party 
    - A third party can give consent to search of any area over which he has joint control but not over areas where D has exclusive control

    ~ apparent authority: police can rely on the consent of someone who has apparent authority even if person did not actually have authority
  26. 4th amendment: searches: warrant exceptions: people who do and do not have joint authority or other authority to consent to search
    • joint do: 
    • - roommates
    • - spouses
    • - homeowners
    • - guests when the homeowner is the one giving consent
    • - parents, even of adult children

    • BUT All the above may be excepted if a physically present resident expressly refuses
    • joint don't: 
    • -landlords
    • - hotel managers and guests who are still registered as having the room
    • - employers and the personal lockers of employees
  27. 4th amendment: searches: warrant exceptions: administrative searches
    • - people in airplane boarding areas
    • - highly regulated businesses (i.e. liquour stores)
    • - oral statements seized by wire tap when matters of national security are at issue
    • - searches of students by public school officials
    • - special drug testing
    • - inventory searches of items in official custody [NY: must be conducted through established procedures that limit officers' conduct]
    • - borders
    • - uniform and non discriminatory vehicle check points
    • - factory searches to determine citizenship
    • - government employees' file cabinets/desks IF reasonable suspicion or work-related need
    • - travelers suspected of smuggling contraband internally
    • - parolees and their homes IF parolee agrees as condition of parole
    • - contaminated or spoiled food
  28. 4th amendment: exclusionary rule: the rule
    Evidence obtained in violation of the 4th amendment cannot be used against the victim of a search
  29. 4th Amendment: exclusionary rule: applies to:
    • - evidence initially seized in violation of the 4th Amendment AND
    • - derivative evidence discovered as a result of the primary taint
  30. 4th Amendment: exclusionary rule: exceptions
    • 1. inevitable discovery rule
    • 2. independent source doctrine
    • 3. attenuation principle
    • 4. good faith exception
    • 5. back-office police negotiation
    • 6. knock- and-announce
    • 7. in-court identification
    • 8. grand jury proceedings
  31. 4th Amendment: exclusionary rule: exceptions: inevitable discovery rule:
    evidence would have been discovered anyway through lawful means
  32. 4th Amendment: exclusionary rule: exceptions: independent source doctrine
    discovered in part by an independent source unrelated to the tainted evidence
  33. 4th Amendment: exclusionary rule: exceptions: attenuation principle:
    if time has passed or intervening events are long enough, court may find that the chain of causation between the primary taint and derivative evidence has been broken.
  34. 4th Amendment: exclusionary rule: exceptions: good faith exception
    If police officers act in good faith on a warrant that later turns out to be invalid, can still use evidence from it unless

    • - unreasonable
    • - defective warrant
    • - warrant obtained by fraud
    • - improperly executed warrant
    • - magistrate wholly abandoned his judicial role

  35. 4th Amendment: exclusionary rule: exceptions: back-office police negligence
    negligence of police dept's admin staff will not lead to exclusion as long as it is isolated and not systemic or reckless negligence
  36. 4th Amendment: exclusionary rule: exceptions: knock- and-announce
    If a search is otherwise valid, failure to comply with the knock and announce rule will not lead to exclusion
  37. 4th Amendment: exclusionary rule: exceptions: in-court identification
    a witness's in-court identification of D is not considered the fruit of an unlawful detention. So identification cannot be excluded on that basis. 


    Live testimony may be excluded if there is a sufficient link between illegal police conduct and the testimony
  38. 4th amendment: a conspirator does not have automatic standing to challenge the seizure of illegally obtained evidence from a co-conspirator
    4th amendment rights are personal rights, so no need to exclude evidence against one D to protect rights of another
  39. Self-incrimination: 5th Amendment: rule
    no person shall be compelled in any criminal case to be a witness against himself
  40. self-incriminaiton: 5th amendment: who is covered
    - individuals (not corporation)
  41. self-incrimination: 5th amendment: what does it cover? what doesn't it cover?:
    • covers:
    • - testimony (including a personal diary)

    • doesn't:
    • - blood or urine samples, handwriting, breathalyzers, measurements, voice identification, or business records (tax returns etc.)
  42. self-incrimination: 5th amendment: invoking and waiving the privilege for D and witness
    D: invoke by not taking stand, waiving by taking stand

    Witness: invoke only after listening to the questions and specifically invoking the privilege rather than responding to the question; waive by disclosing self-incriminating information
  43. self-incrimination: 5th amendment: involuntary statements cannot be used in the prosecution's case in chief or for impeachment
  44. self-incrimination: 5th amendment: voluntary and trustworthy statements made in violation of Miranda can be used for impeachment purposes.  Fruits obtained of unwarned but voluntary statements do not have to be suppressed.
  45. self-incrimination: 5th amendment bars coerced confessions, but voluntary confessions are admissable
  46. self-incrimination: 5th amendment: test for involuntary (coerced) confessions
    • - totality of the circumstances:
    • ~D's age healthy, education, and mental condition 
    • ~ police conduct: police can lie to a suspect and it won't necessarily be an involuntary confession BUT threats of physical harm could be coercion

    [NY- additional factors: duration of interrogation; if a minor, the absence of a parent]
  47. Self-incrimination: Miranda rule
    any statement made in custodial interrogation may not be used against a suspect at trial unless the police provide Miranda warnings
  48. self-incrimination: Miranda rights: elements of custody and exception
    Whether a reasonable person would believe that he is not free to leave or the person is deprived of freedom in any significant way 

    exception if public safety is at risk
  49. self-incrimination: Miranda rights: elements of interrogation
    questioning and anything else police know or should know is likely to elicit an incriminating response.
  50. self-incrimination: Miranda Warnings: elements
    Police must warn suspect and obtain waiver  of rights BEFORE beginning questioning:

    • 1) right to remain silent
    • 2) any statement may be used in court
    • 3) right to consult an attorney and have an attorney present during interrogation
    • 4) right to have an attorney appointed if suspect cannot afford one
  51. self-incrimination: Miranda warnings: factors in waiver of right to remain silent
    [Same as from 5th]

    • - knowing and intelligent waiver
    • ~ but intoxication defense generally unsuccessful

    - totality of the circumstances: 1) competence of D 2) police conduct
  52. self-incrimination: Miranda warnings: action once right to counsel and right to silence invoked
    • Right to counsel: all questioning must stop until counsel is present unless D voluntarily initiates communication with police
    • ~ if no renewed Miranda warnings, cannot renew questioning until attorney there! 

    Right to silence: police must not ask any questions. If suspect changes his mind and wants to speak, the suspect must receive fresh Miranda warnings
  53. self-incrimination: If Miranda is violated
    - cannot use statement in case in chief

    • - can use to impeach D if statement is volutnary and trustworthy
    • - does not require suppression of physical fruits of suspect's statements if unwarned but voluntary
    • - does not require suppression of later voluntary, post-Miranda statements UNLESS police intentionally attempted to circumvent Miranda
  54. self-incriminating statements: immunity: Prosecution may compel incriminating testimony if it grants immunity to the individual
  55. self incriminating statements: two types of immunity:
    - transaction immunity is total immunity that protects a witness from future prosecution for crimes related to testimony

    - use and derivative immunity prosecution can't use witness' own testimony or evidence from it.
  56. 6th Amendment: right to counsel in criminal cases
  57. 6th amendment
    Applies to:
    • all felony cases
    • misdemeanor cases in which incarceration is imposed
  58. 6th amendment applies when formal charges are brought, until sentencing is over. Formal proceedings begin with indictment, arraignment, or a preliminary hearing
  59. 6th amendment: does not apply to these stages of criminal procedure:
    • - witness viewing photo IDs
    • - pre-charge investigative lineups
    • - taking of fingerprints; handwriting, voice, blood samples
    • - preliminary hearings to determine probable cause to detain D
    • - discretionary appeals
    • - post-conviction proceedings (parole or probation)
  60. [NY Distinction: 6th amendment protects these stages of criminal procedure:]
    1. commencement of formal judicial proceedings, whether or no D has retained or requested a lawyer

    2. at investigatory lineups when D is represented by counsel on another charge and D requests that counsel to be present

    3. where there is any significant judicial activity, including grand jury appearances

    4. when accuse in custody where police conduct is likely to be overwhelming to a layperson and counsel is requested
  61. 6th amendment: once adversary proceedings have been commenced against an individual, he has a right to legal representation when the government interrogates him
  62. 6th Amendment: "interrogation": proof of formal interrogation unnecessary to invoke protection--> an informal conversation tantamount to interrogation is sufficient.
  63. Can waive Sixth Amendment right to counsel once invoked if voluntary, knowing, and intelligent
  64. [NY: A waiver is valid from D represented by counsel only if waiver is in the presence of that counsel.
    BUT if D had an atty on a previous charge and is now suspected of a new and unrelated charge, D can waive outside the presence of atty.]
  65. 6th amendment: remedies for violation
    - Denied right at trial: automatic reversal of conviction

    - If D plead guilty at a preliminary hearing: right to withdraw plea

    - After indictment and police place D with an informant to induce D into making statements: statements inadmissible

    - Post indictment line-up: exclusion of the identificaiton

    -non trial proceeding (i.e. pre-indictment line-up): harmless error analysis

  66. 6th amendment remedies: any statement and physical evidence obtained inadmissible in the prosecution's case in chief under fruit of the poisonous tree doctrine.
  67. 6th Amendment: right to counsel means reasonable competent counsel
  68. 6th Amendment: to make a claim for ineffective assitance, D must show
    • - deficient performance: counsel fails to meet objective standard of reasonableness AND 
    • - prejudice

    • [NY:
    • 1) D did not receive "meaningful representation," 2) attorney's error was "egregious and prejudicial"
    • 3) but/for the deficiency, the result would have been different]
  69. 6th amendment: to overturn a conviction on the basis of conflict of interest of counsel, D must show an actual conflict of interest that adversely affected the attorney's performance.
Card Set:
Crim Procedure: 4th 5th 6th Amendments
2014-07-13 18:22:35
crim law
crim pro
Show Answers: