Current Crim Pro Law

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Current Crim Pro Law
2011-04-28 18:08:11
Criminal Procedure

Current Law and Rules for Criminal Procedure
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  1. Right to Appointed Counsel
    Gideon v. Wainwright: there cannot be a fair trial without a lawyer; selective incorporation of the 6th A to the states
  2. Right to Counsel (6th A)
    • Gideon v. Wainwright: all felonies
    • Argensinger, Scott, Shelton: if the offense is less than a felony the arrestee gets representation only when their actual sentence is imprisonment even if the sentence is suspended
    • Nichols: a legitimate previous conviction can be used at a later time to increase the sentence for a subsequent crime
  3. 6th A Right to Counsel Triggers
    • 1. Adversary Judicial Proceedings have begun (any of: formal charge, indictment, information, preliminary hearing, arraignment)
    • 2. Critial Stage of Prosecution (both confronted by gov't agency and situation is likely to effect trial)
  4. 14th A Right to Counsel (Appeals)
    • - right to a trial transcript
    • - right to appointed counsel on appeal (Douglass v. California)
    • - discretionary appeals, as opposed to appeals as of right, do not grant appointed counsel (Ross v. Moffit)
    • - first appeal comes with a right to counsel (Halbert v. Michigan)
  5. 14th A Right to Further Assistance
    Ake v. Oklahoma: the state needs to provide proper experts in order to meet due proces; usually limited to absolutely necessary experts
  6. Exclusionary Rule
    • The court cannot introduce evidence that has been deemed to have been acquired through unconstitutional means (Weeks v. United States)
    • -Mapp v. Ohio: exclusionary rule extends to the states
  7. Exclusionary Rule Good Faith Exception
    • United States v. Leon: will not exclude evidence that is obtained by reasonable relaince on a search warrant that is ultimately found to not be supported by probable cause
    • - the error can be by the police or a magistrate/court
    • - does not apply when the warrant is actually deficient (i.e. lacks particularity)
  8. Exclusionary Rule and Knock and Announce
    Hudson v. Michigan: exclusionary rule does not apply when there is a knock and announce violation
  9. 4th A. Search
    • Katz v. United States: a person has exhibited an actual expectation of privacy that society is prepared to recognize as reasonable
    • - there is not a reasonable expectation of privacy in what a person knowingly exposes to the public
  10. Probable Cause Arrest
    Did the police have reason to believe that (1) a crime was committed and (2) the arrestee commited it
  11. Probable Cause Search
    Did the police have reason to believe that (1) evidence of the crime exists and (2) it is in the place to be searched
  12. Issuing a Warrant
    • 1) Probable Cause
    • 2) Neutral and detached magistrate
    • 3) Particular description of the place to be searched and the things to be seized (search warrants only)
  13. Executing a Warrant
    • -Warrants generally have no expiration date
    • -Time of day: generally during the day
  14. Knock and Announce
    • -do not have to K&A when it would be dangerous, futile, hindersome or allow evidence destruction
    • -wait time is based on reasonable police knowlege at the time and exigent circumstances
  15. People on Warrant Premises
    • -PC does not automatically extend to close-by third parties (Ybarra v. Illinois)
    • -reasonable suspicion exists for any occupant of the home to justify detainment while a warrant is executed (Michigan v. Summers)
  16. Warrantless Arrests (Felony)
    • -there may be a warrantless arrest in public when the person is suspected of a felony (United States v. Watson)
    • -those arrested in public need a trial w/in 48 hours to determine PC to hold the person
  17. Warrantless Arrests (Misdemeanor)
    • Atwater v. City of Lago Vista: the crime must be committed in a police officer's presence and be a serious misdemeanor that amounts to a breach of peace
    • -most courts hold that the lower Watson standard (just suspicion) is enough
  18. Search Incident to Arrest
    • Chimel v. California: the police are allowed to do a limited search incident to arrest w/o a warrant if the arrest is custodial
    • -what is found cannot be used as PC solely for arrest
  19. Scope of Search Incident to Arrest
    • 1) arrestee's person
    • 2) area within the arrestee's immediate control (does not include concealed areas, courts hold either may be where the person was when arrested or when the search took place)
  20. Plain View
    • Coolidge v. New Hampshire: if the police see something in plain view then they are allowed to take it
    • Elements
    • 1) police are in a place where they have a right to be
    • 2) police find somethin in plain view (a place where the item that the warrant specifies may actually be)
    • 3) probable cause to believe that the item found is evidence exists
  21. Exigent Circumstances (Protective Sweep)
    • Part of the Search Incident to Arrest
    • 1) areas immediately adjoining the place of arrest from which an attack could be launched
    • 2) conduct a broader search if there is a reasonable suspicion of another posing a danger being in the area
  22. Exigent Circumstances (Full Search)
    • The presumption is that a warrant is needed so the burden is on the prosecution to show
    • 1) an exigency existed (safety, evidence destruction, escape)
    • 2) there was probable cause that there was something in the home
  23. Exigent Circumstances (Secure Premises)
    • 1) From outside -- allow no one in
    • 2) From inside -- follow people around the house
  24. Arrests in the Home
    • Payton v. New York: an arrest warrant is required but not a search warrant -- it is presumed that the arrest warrant gives authority to enter a dwelling reasonalbly
    • Steagland v. United States: when searching a 3rd parties home for the warrant suspect, a search warrant specified for that house is necessary
  25. Vehicle Searches
    California v. Carney: once there is probable cause of evidence in a car then a warrant is not needed because (1) vehicle mobility is an exigency and (2) there is a diminished expectation of privacy in a car
  26. Vehicle Exception
    • 1) vehicle is used or is capable of being used on a highway
    • 2) vehicle is foudn stationary in a place not regularly used for residential purposes
  27. Vehicle Compartments
    • United States v. Ross: PC for a car extends to the entire vehicle and all contained within it
    • California v. Acevedo: if PC exists then the container can be opened no matter if the original PC was just for the car
    • Wyoming v. Houghton: when there is PC to search a car, individualized PC to search containers is not needed
  28. Vehicle and Search Incident to Arrest
    • Arizona v. Gant: may search a vehicle incident to arrest if (1) arrestee is unsecured and w/in reaching distance of the car or (2) it is reasonable to believe the vehicle contains evidence of the offense of arrest
    • - applies to the passenger compartment for arrests of vehicle occupants and recent occupants
  29. Inventory Search of Vehicle
    Colorado v. Bertine: inventory searches must take place after the vehicle has already been lawfully impounded pursuant to standard police policies
  30. Stop and Frisk
    Terry v. Ohio: allows police to do a stop and frisk if there is reasonable suspicion that (1) the person may be involved in a crime and that (2) the person may be armed and dangerous
  31. Stop & Frisk Analysis: Was there a seizure?
    • -there is a stop when a reasonable person would believe that they are not free to leave
    • -the police asking a person a question is not a stop
  32. Stop & Frisk Analysis: Justification for Intrusion
    • -the police must have particularized and objective basis for suspicion
    • -a stop may be based on reasonable suspicion of a past felony
    • -reasonable suspicion cannot be based on mere inferences about actions/associations
    • -a combination of (1) setting and (2) suspicious action can give rise to reasonable suspicion
    • -if a patdown does not give reasonable evidence of a crime then further exploratory search is not allowed
    • -predicted information gives rise to reasonable suspicion while current innocent behavior does not
  33. Stop & Frisk Analysis: Stop v. Arrest
    • Factors
    • -amount of force
    • -duration (police must be diligently pursuing the investigation)
    • -transportation or confinement of suspect
    • There must be reaonable relation to the scope of the stop and not alter the nature of the stop
  34. Administrative Inspection (General)
    • A search with another or additonal purpose to evaluating a crime is ok if the government can show
    • (1) scpeical need (purpose of inspection)
    • (2) limit to the inspector's discretion (reasonable suspicion, area warrant, general safety inspection, statute or regulation, supervisor)
    • (3) reduced expectation of privacy (usually)
  35. Administrative Inspection (Drug Testing)
    • Employment related
    • School activities
  36. Consent Searches
    • Voluntary consent is an exception to the need for a warrant and PC
    • Voluntary Factors
    • (1) characteristics of the defendants (age, IQ, intoxication)
    • (2) actions of the police (no express or impled coercion)
    • (3) knowledge of the right to decline the search
  37. Third Party Consent
    United States v. Matlock: a 3rd party with common authority may consent to a search (common authority is an equal right to the property and an assumed risk)
  38. Standing
    • Alderman v. United States: those whose rights were violated by the search have standing
    • -does not apply when someone else's rights were violated (i.e. 3rd party rights violated but initial party is implicated by discovered evidence)
    • -must be a Katz search for each defendant who challenges the evidence
  39. Standing and Reasonable Expectation of Privacy
    • An expectation of privacy exists outside the 4th A...
    • 1) real/personal property law (property rights of a place)
    • 2) societal understanding/customs (what people expect)
  40. Overnight Guest (standing) v. Legitimately on Premises (no standing)
    • Factors to consider
    • 1) commercial-ness of transaction
    • 2) relative time of visit
    • 3) prior connections between parties
  41. Fruits of the Poisonous Tree
    • Once there is a 4th A violation established then the defendant's goal becomes to connect as much as possible to that violation
    • -applies to both primary (direct from violated rights) and derivative (indirectly from violated rights) evidence
  42. FOTPT Exception: Independant Source
    • If the police have something that led them to the evidence independant of the constitutional violation then the evidence is admissable (i.e. line-up is a violation, but independant court ID is ok)
    • -Segura v. United States: a search warrant is an independant source for a search subsequent to an illegal seizure as long as it is based on independant PC
  43. FOTPT Exception: Attentuation
    • Even if there is a causal link between the evidence adn the constitutional violation, if the link is so far removed it can be ignored
    • Factors
    • 1) time lapse between illegal event and evidence
    • 2) intervening circumstances (i.e. release, Miranda)
    • 3) purpose or flagrancy of the violation
  44. FOTPT Exception: Inevitable Discovery
    • The evidence would have been found even if there had not been a constitutional violation (need PC and a chain of events independant of the search)
    • Standard: there must be a propnderance of evidence that the information ultimately would have been discoved by lawful means
  45. Voluntariness Due Process
    • Factors
    • 1) defendant's characteristics (age, education, physical/mental, criminal record)
    • 2) police interrogation methods (violence, threat, promises, time span)
  46. McNabb/Mallory Rule
    If a statement is made by a defendant when he is illegally detained (i.e. not taken to the magistrate in time) then it must be suppressed
  47. Massiah on 6th A Right to Counsel
    • A defendant is entitled to a lawyer at any critical stage of the prosecution
    • -a critical stage is once adversarial judicial proceedings have begun
    • Being under investigation is not a critical stage (Escobedo)
  48. Miranda
    • 1) Right to remain silent
    • 2) Anything said can be used against you
    • 3) Assistance of an attorney
    • 4) An attorney may be appointed
  49. Miranda Triggers
    • 1) suspect is in custody
    • 2) interrogation of the suspect has begun
    • 3) interplay between custody and interrogation (suspect knows they are faced with a government agent)
    • 4) no public safety exception
    • -you need both of these to raise a Miranda claim, without them you can still raise a 6th A or Due Process claim
  50. Custody
    Berkimer v. McCarty: objective person test says that what is important is how a reasonable man in the suspect's position would have understood the situation
  51. Custody Factors
    • 1) Pre-interrogation (how did the suspect get there?)
    • 2) Interrogation
    • - where does it take place
    • - how long was it
    • - what restraints were used
    • - what was the suspect told
    • 3) Post-Interrogation (was the suspect released)
  52. Interrogation
    • Rhode Island v. Innis: express questioning or its functional equivalent
    • - any words or actions on the part of the police that they should have known were likely to elicit an incriminating response (supposed to focus on the perceptions of the suspect)
  53. Public Safety Exception
    • New York v. Quarles: questions reasonably prompted by a concern for public safety do not require Miranda
    • - the questions should be preventative not clearly investigative
  54. Waiver of Miranda
    • Waiver must be voluntary, knowing and intellignent
    • Totality of the Circumstances Test
    • 1) characteristics of the defendant
    • 2) police interrogation methods
  55. Implied Waiver of Miranda
    • Silence, coupled with an understanding of rights and a course of conduct indicating waiver may imply waiver
    • An "uncoerced statement" made by the suspect can be considered a courseof conduct indicating waiver
  56. Invoking Miranda (Silence)
    • Michigan v. Mosley: when the rights are invoked the polce must "scrupulously honor" the invocation
    • Scrupulously Honor
    • 1) must immediately stop interrogation
    • 2) must suspend action for a significant period
    • 3) must re-give Miranda rights at the outset of a second interrogation
  57. Invoking Miranda (Counsel)
    • Edwards v. Arizona: once a suspect invokes his right to counsel he mat not be subjected to further interrogation until counsel has been made available unless he himself initiates the communication
    • -police cannot even initiate conversation about unrelated crimes (Arizona v. Roberson)
    • -officials cannot reinitiate interrogation w/o counsel present even if there has already been consultation (Minnick v. Mississippi)
  58. Invoking Miranda Pitfalls
    • 1) if the suspect initiats the conversation then he is removed from protection (must be more than a routine incident of custody i.e. can I have some water)
    • 2) there must be unambiguous invocation of the right to counsel or silence
    • - the suspect must sufficiently articulate the desire for counsel sufficiently clearly that a reasonable police officer in the circumstances would understand
    • 3) once thre is a break in custody of at least 14 days it is as if the rights were never invoked
  59. Attempted Contact by an Attorney
    • Moran v. Burbine: it is a valid waiver of Miranda if a suspect waives his rights when unaware that an attorney is trying to contact him
    • -police culpability in failing to inform the defendant of an attorney presence has no bearing on validity of waiver
    • -events outside of the presence and unknown to the suspect have no bearing on his ability to properly waive
  60. Custody
    • Miranda: formal arrest or restraint of freedom associated with formal arrest
    • Alvarado: the D believes reasonably that they were in custody and deprived if freedom in a significant way
  61. FOTPT Miranda
    • Oregon v. Elstad: Miranda is not a tree, there is no causal connection, mere good faith violation
    • United States v. Patane: Miranda is not a tree, evidence is non-testimonial, mere failure to warn and no attempt to admit a statement
  62. 6th A Suppresion of Statements
    • Brewer v. Williams: once adversarial judicial proceedings have begun there can be no interrogation w/o a lawyer -- interrogation is any police action deliberately and decidedly set out to elicit information or incriminating remarks
    • Kuhlmann v. Wilson: undercovers listening, but not eliciting information, is not a violation
  63. 6th A Waiver
    • Patterson v. Illinois: waiving Miranda also waives the 6th A right to counsel under Messiah because the Miranda warnings essentially inform of the 6th A rights as well
    • Montejo v. Louisiana: when the 5th A rights are waived the 6th A right to counsel is waived also even if the defendant is a represented defendant (i.e. counsel has been appointed)
  64. 6th A Waiver Offense Attachment
    Texas v. Cobb: the 6th A right to counsel is ofense specific -- it attaches for the specific offense and those offenses that would be considered the same offense under the Blockburger test
  65. Blockburger Test
    There are different offenses when each requires proof of a fact that the other does not