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Seizure (definition)
Occurs when an officer, by means of physical force or show of authoirty, terminates or restrains freedom of movement.

There is no seizure without actual submission.
Test for whether seizure occurs
Whether a reasonable person would feel free to disregard the officer
Arrest warrant
  • issued by a  neutral and detached magistrate based on a finding of probable cause to believe the named individual has committed a particular crime.
  • Must name the person and identify the offense.
  • Entitles officers to enter a home to arrest the individual.
When can officers arrest someone inside a dwelling without a warrant?

  • exigent circumstances

  • consent to enter

Requirements for a search warrant
  • Must be issued by a neutral magistrate
  • must be based on probable cause to believe that the items sought are fruit, instrumentality, or evidence of crime, and
  • must describe the property and place to be searched with particularity.
Knock and announce
Police officer who is executing a warrant must generally announce his purpose before entering.

Failure to do so will invalidate the arrest, but exclusionary rule does not apply to evidence discovered if pursuant to a valid search warrant.
Warrantless arrests
Police generally do not need a warrant to make a valid arrest in a public place.

  • Police officer or private citizen can arrest if felony or misdemeanor amounting to breach of peace is committed in party's presence
  • If outside police officer's presence, can arrest anyone whom he reasonably believes has committed a felony
  • Private individual may only make an arrest for a crime committed outside their presence if a felony has actually been committed and the private individual reasonably believes the party being arrested is guilty.
Occurs when government conduct violates a reasonable expectation of privacy (Katz v. United States)
Invalid search warrant
Search warrant that is valid on its face will be held invalid if:
  • the affidvait contained false statements that were made knowingly or intentionally, or with a reckless disregard for their truth, and
  • the magistrate could not have found probable cause to issue the warrant or those parts of the warrant that remain after the false portions are deleted.
Exceptions to requirement of warrant
  • Exigent circumstances
  • Search incident to arrest
  • Consent
  • Automobile
  • Plain View
  • Evidence obtained from administrative searches
  • Stop and frisk
Exigent circumstances
  • hot pursuit - applies for felonies
  • emergency situations - reasonable apprehension that the delay required in obtaining the warrant would result in immediate danger of evidence destruction, threatened safety of the officer or public, or suspect is likely to flee
Chimel standard (Chimel v. California)
Lawful arrest creates a situation that justifies a warrantless contemporaneous search of the person and the immediate surrounding area (wingspan)

If arrest occurs in a home, lawful to search closets and other spaces adjoining the place of arrest from which an attack could be launched. (Maryland v. Buie)
Vehicle search incident to arrest
Arizona v. Gant restricted the Belton rule.

Gant: For warrantless vehicle search pursuant to arrest, law enforcement must demonstrate either:

  • arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to officer's safety or need to preserve evidence, OR

  • that it is reasonable that evidence of the offense might be found in the vehicle.

Consent exception to warrant requirement
  • Must be given voluntarily looking at totality of the circumstances
  • Third party has authority to consent to search of property she owns or occupies
Jointly-owned property:
  • If defendant is present, police may not rely on third-party consent if defendant objects
  • If defendant is not present, the third party has authority to consent
Automobiles exception to search warrant
If police have probable cause to believe an automobile contains contraband, they can search those parts of the vehicle, and containers inside, which could contain the contraband. They cannot search other containers.
"Plain-view" doctrine
If police are legally on the premises, they can seize any item in "plain view" (or "plain smell"), even if that item was not named in the warrant, if the incriminating character of the item is immediately apparent.
Evidence obtained from Administrative Searches
Conducted for non-investigative purposes, but if they turn up evidence of a crime, it can be used.

The following administrative-type searches may be validly made without a warrant:

  • Airplane boarding areas
  • International borders
  • Highly regulated industries (liquor stores, gun shops, etc.)
  • Reasonable searches of students in public schools
  • Special needs searches – best examples are drug testing of railroad employees after an accident
  • Roadblocks for drunk driving or seeking information
  • Inventory searches
  • Oral statements seized by wiretaps, when matter of national security
  • Factory searches of the entire workforce to determine citizenship
  • Searches of government employees file cabinets and desk if justified by reasonable suspicion of work-related misconduct or work-related need
  • Parolees and their homes
  • Contaminated or spoiled food
Stop and Frisk
Officer may make a limited search of the person if he has a reasonable suspicion tha thte suspect was or is involved in criminal activity and the frisk is necessary for his or others safety.

"Plain feel" exception - officer conducting valid frisk may seize evidence if he feels an object whose physical characteristics make its identify immediately obvious
Requirements to obtain a warrant authorizing a wiretap
The warrant:
  • Must be limited to a short period of time
  • must demonstrate probable cause that a specific crime is or is about to be committed
  • must name the person or persons to be wiretapped
  • must describe with particularity the conversations that can be overheard
  • must include provisions for the termination of the wiretap
  • must demonstrate to the court, after termination, the converstaions that were intercepted, unless
  • the speaker assumes the unreliability of the person with whome he is speaking, or claism that he attempted to keep the conversation private.
Legitimiate expectation of privacy
  • Person owns or has right to possession of the place searched
  • place searched was in fact his home, regardless of whether he owned or had possession
  • overnight guest of the owner of the place searched
Fruit of the poisonous tree
Exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary "derivative evidence" discovered as a result of the primary taint
Fruit of the poinsonous tree exceptions
  • inevitable discovery rule
  • independent source doctrine
  • attenuation principle (passage of time/intervening events purge the taint)
  • good faith exception
  • isolated police negligence
  • knock and announce
  • in-court identification
good faith exception
Applies to police officers who act in good faith on either a facially valid warrant later determinedc to be invalid or an existing law later declared unconstitutional.

Does not apply if:
  • No reasonable officer would rely on the affidavit underlying the warrant
  • the warrant is defective on its face
  • the warrant was obtained by fraud
  • the magistrate has "wholly abandoned his judicial role", or
  • warrant was improperly executed
Privilege against compulsory self-incrimination
No person shall be compelled in any criminal case to be a witness against himself (but extends to civil cases if there is some reasonable possibility of incriminating the defendant in future criminal proceedings).
Invoking the privilege
  • Defendant invokes privilege by not taking the stand.  Prosecution cannot bring defendant's failure to take the stand to the jury's attention.
  • Witness would invoke privilege after listening to the question and specifically invoking the privilege.
The Fifth Amendment in Police Interrogations
Any statement, whether inculpatory or exculpatory, obtained as the result of custodial interrogation, may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege agaisnt self-incrimination.
  • Either a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.
  • Test: whether a reasonable person would believe that he is not free to leave.
Includes express questioning and any words or actions that the police know or should know are likely to elicit an incriminating response.
Content of Miranda warnings
Law enforcement must inform defendants:
  • of right to remain silent
  • that any statement uttered may be used in court
  • of their right to consult an attorney and to have the attorney present during an interrogation, and
  • that an attorney will be appointed to represent indigent defendants
Invoking the right to counsel
Defendant must make a specific, unambiguous statement asserting his desire to have counsel present.

Once right is invoked, all interrogation must stop until counsel is present, unless Defendant voluntarily initiates communication with the police.
Exceptions to Miranda
  • Public safety
  • routine booking
  • undercover police
Waiving Miranda
Defendant may knowingly, voluntarily, and intelligently waive his Miranda rights.

Burden on the government to demonstrate, by preponderance of the evidence, that waiver was made knowingly, voluntarily, and intelligently.
Use of confession take in violation of Miranda
Involuntary confessions cannot be used either substantively or for impeachment.

However, if coerced confession is admitted into evidence, harmless error test is applied.
Use of other statements (not confessions) in volation of Miranda
May be used to impeach the credibility of a criminal defendant if he takes the witness stand and gives testimony at variance iwth previous admissions.
Prosecution may compel incriminating testimony if it grants immunity.

Transactional (blanket or total) immunity: fully protects a witness from future prosecution for crimes related to testimony

Use and derivative use immunity: only precludes prosecution from using the witness's own testimony or any evidence derived from the testimony against the witness.
Types of proceedings where right to counsel applies
In all felony cases

In any misdemeanor case in which actual (or suspended) incareration is imposed
When right to counsel applies
At all critical states of a prosecution.

Automatically attaches when the State initiates a prosecution with an indictment or formal charge, and ends at the sentencing stage of the trial.
"Critical stage"
Those proceedings between an individual and an agent of the state that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or meeting his adversary.

Generally attaches at:
  • Post-indictment lineups and identifications
  • custodial police interrogations
  • post-indictment interrogations, whether custodial or otherwise,
  • arraignment
  • guilty pleas and sentencing
  • appeals as a matter of right
Waiver of right to counsel
Defendant can refuse counsel and proceed pro se unless the request is untimely or defendant is unable or unwilling to abide by the rules of procedure or protocol.

Waiver must be voluntary, knowing, and intelligent.
Blockburger test
Two different crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless one offense requires proof of an element the other does not.
Remedies for denial of counsel
  • If right to counsel at trial is denied, conviction should be automatically reversed
  • If defendant pleaded guilty without counsel, defendant has right to withdraw plea and it may not be used against defendant
  • If counsel is denied at non-trial proceeding, apply harmless error analysis
  • Post-indictment statments made to an information will be inadmissible where police intentionally create situation likely to induce defendant into making incriminating statements without counsel, but no violation if police place informant simply to listen and report.
Ineffective assistance of counsel
To reverse a conviction on these grounds, defendant has burden to show that:
  • counsel's representation fell below an objective standard of reasonableness; and
  • counsel's deficient performance prejudiced the defendant, resulting in an unreliable or fundamentally unfair outcome in the proceeding.
Conflict of Interest
  • May amount to ineffective assistance of counsel
  • Defendant must show actual conflict and such conflict adversely affected the attorney's performance
Admissibility of Pre- and Post-Indictment Identification
Two-prong test:
  • defendant must prove that the identification procedure was impremissibly suggestive, and
  • the court must determine whether the testimony was nonetheless reliable, using five factors:
  • witness's opportunity to view the defendant at the time of the crime
  • witness's degree of attention at the time of the crime
  • accuracy of the witness's description of D prior to identification
  • level of certainty at identification, and
  • length of time between crime and identification
Indictment jurisdictions
  • Federal system and many states
  • No need for a preliminary hearing because the grand jury makes a finding of probable cause with the return of the indictment
Information jurisdictions
Prosecutor will file a criminal complaint or information, and preliminary hearing is held by magistrate to determine if there is sufficent probable cause to bind defendant for trial.
"Right" to bail
No constitutional right to bail, but denial of bail must comply with due process.

Bail set higher than amount reasonably calculated to ensure presence at trial is "excessive" under 8th A.

Presumption in favor of pre-trial release, but against post-conviction bail.
Competency standard
Same for whether to stand trial or competence to plead guilty:

Whether the defendant comprehends the nature of the proceedings against him and has the ability to consult with a lawyer with reasonable degree of rational understanding.
Administration of anti-psychotic drugs
If defendant is mentally incompentent to stand trial, and charge is a serious offense, government may administer anti-psychotic drugs if three conditions are met:
  • Treatment should not cause serious side effects that would affect the fairness of the trial;
  • treatment is necessary an dthere is no less intrusive method to further the government's important interest, and
  • the treatment is medically appropriate.
Brady duty to disclose
State has an affirmative duty to disclose any material evidence favorable to the defendant and relevant to the prosecution's case in chief tha twould negate guilt or diminish culpability or punishment.

Failure to make this disclosure violates due process and is grounds for reversal if defendant can show that:
  • evidence is favorable, and
  • failure to disclose cause prejudice against defendant.
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