Con Crim Pro

4th amendment

Right to be free from unreasonable searches and seizures

5th amendment

Right to remain silent vs. self incrimination

Right for felony defendants to be indicted by a grand jury

• this right is not applied to the states through the 14th amendment so the prosector gets to decide for state crimes if its grand jury or preliminary hearing

6th amendment

Right to effective assistance of counsel if accused of a crime
Right to trial by an impartial jury in all criminal proceedings (non-petty offenses only)

Are the states allowed to provide less protections than set by the Supreme Court?

No. The Supreme Court sets the minimum protections. The states are allowed to offer more protections but not less

What is the punishment/remedy for a violation of constitutional criminal procedure?

Exclusion of evidence when proving the crime against the individual whose privacy rights were violated

Exclusionary rule

The state cannot use evidence against the defendant that they obtained in violation of the rules of criminal procedure

What can be searched?

A person

Bags

Homes

Cars

Documents

Electronic records

Bodily fluids

What can be seized?

Person when they are stopped and detained

Person when they are arrested

Personal belongings or property

If a search or seizure has not occurred, what happens?

There is no 4th amendment issue

Who does the 4th amendment rules apply to?

Government agents or those acting on behalf of the government

General rule for searches / seizures

Generally, a search or seizure that is conducted without a warrant is unreasonable

Requirements for a valid warrant

1. Must be supported by probable cause

2. The person applying for the warrant must affirm under oath that the facts in the affidavit are true

3. Warrant must state with particularity the place to be searched and items or people to be seized

4. The warrant must be executed reasonably

Who issues a warrant

Neutral magistrate

What is the old test in determining if there was a search?

Did the gov. intrude upon a constitutionally protected area?

What is the new test for determining if there was a search?

1. Subjective belief in privacy — did they have a subject belief in privacy?

2. An objective recognition of reasonableness — was the expectation of privacy objectively reasonable?

General rule for privacy expectation for the home

There is a general expectation of privacy for someone’s home or the curtilage.

When is there generally not an objectively reasonable expectation of privacy?

1. Something visible/audible from a public place (available to the public)

2. Open fields

3. Third party doctrine

Open fields definition

Area outside the curtilage, even if it is still private property

Third party doctrine

When someone shares information with someone else, it is no longer reasonable to expect the information to be private

Can police enter open fields without a warrant

Yes, they can even search structures located in the open fields

4 factors to determine if open fields or curtilage

1. proximity to the home

2. is the area within an enclosure surrounding the home? (fence)

3. how is the area used?

4. steps taken to protect the area from observation

   *no factor is determinative by itself

If a helicopter flies over curtilage, is it a search?

Not a search, air accessible by the public. They did not interfere with the use of the home (Florida v. Riley)

Is using a pen register considered a search?

Not a search, no expectation of privacy (third party doctrine) (Smith v. Maryland)

Examples of NOT searches

1. Pen register being used to get numbers being dialed (Smith)

2. Helicopters flying in curtilage above home (Riley)

3. Collection of trash bags by the garbage man and being turned over to police (Greenwood)

4. Recordings of conversations with a gov. informant (White)

5. obtaining of personal information given to a bank (Miller)

6. Dog sniffing closed luggage at airport (Place)

7. Dog sniffing during traffic stops (Caballes)

Right to financial privacy act of 1978

Requires the government to get a warrant or subpoena for any bank records they want to review.

Requires the police to also give a 10 day notice of the request to the person whose records will be reviewed

Is the use of radio transmitters to hear the conversations with a government informant a search?

Not a search. Assumption of risk re talking to an informant

(United States v. White)

Examples of YES searches

1. attaching listening device to outside of phone booth (Katz)

2. using thermal devices to detect heat inside someone’s home (Kyllo)

3. Installing a GPS tracking device on someone’s vehicle and tracking for extended period of time (Jones)

4. obtaining CSLI phone data to track location (Carpenter)

5. Dog sniff on someone’s porch (Jardines)

Katz v. United States

Listening device on outside of payphone

Yes search, there was a reasonable expectation of privacy

Is using a thermal imaging device on a home a search?

Yes search, they would not be able to detect without entering the area when the constitution was written (Kyllo v. United States)

United States v. Jones

GPS installed on someone’s car and tracking them for an extended period of time

Yes search.

Riley v. California rule

Need a warrant before searching a cellphone after someone has been arrested

General rule re dog sniffs

Generally, dog sniffs are not searches

Is a dog sniff during a traffic stop a search?

No but there are limits:

*must be lawful traffic stop

*cannot prolong the duration of the stop beyond what is reasonably necessary

(Illinois v. Caballes)

Is a dog sniff at the front door of a private home a search?

Yes.

(Florida v. Jardines)

Is a dog sniffing closed luggage at the airport a search?

No (Place)

Can a police beat a suspect to get a confession?

No, it violates due process

What does a positive identification from a police lineup get you?

Probable cause to support an arrest

Trial evidence to support a conviction

Arrest definition

Seizure of a person who is suspected of having broken the law

What must an arrest be based on?

Probable cause to believe that a crime has been committed and that the person being arrested is the one who did it.

Is a warrant required before making an arrest?

Not always

If an arrest is warrantless, what must it be based on?

The police officer’s determination of probable cause

If someone is arrested without a warrant, what happens?

A judicial determination of probable cause must be made within 48 hours of the arrest

Who decides if an arrestee gets formally charged?

The prosecutor

Does a prosecutor need to charge the arrestee for the same crime they were arrested for?

No

After a criminal complaint is filed, what happens next?

he parties go to the arraignment to get the date for the preliminary hearing

What happens at the arraignment on the complaint?

The magistrate informs defendant of the charges and his constitutional rights.

The judge decides if bail will be set, appoints an attorney and sets a date for the preliminary hearing

What happens at the preliminary hearing?

The mag. evaluates the case for probable cause for the charges in the complaint

*Defendant has a right to be at the hearing, right to counsel, and right to cross-examine the state’s witnesses

*State does not need to prove every element of the charge, just probable cause

The information replaces the complaint

What happens at the grand jury hearing?

The grand jury decides if probable cause exists to support the indictment.

it is one-sided, the D is not there.

Indictment replaces complaint

After an information / indictment, what happens?

The parties go to the arraignment on the indictment/information

What happens at the arraignment on the indictment/information?

D is informed of the charges and enters a plea.

*if guilty or no contest, then the judge makes sure it is voluntary and informs D of his rights he is waiving

*if not guilty, trial date is set

The Brady rule

Prosecutor has a constitutional duty to disclose evidence that is both favorable and unfavorable

Plea collequy

Discussed before a judge will accept a guilty plea

essentially a conversation with the judge and defendant to ensure D understands the constitutional rights he is waiving

What is the person called who applies for the warrant

Affiant

Knock and announce rule

Requires the police to knock and announce their identity before forcibly entering a dwelling to execute a search warrant

Is searching an entire 3rd floor apartment considered unreasonable if there was only a warrant for half of the apartment?

No, not unreasonable.

The search was reasonable because the information they knew at the time of applying for the warrant pointed to one apartment.

(Maryland v. Garrison)

Requirements for a search warrant

1. Warrant authorization - search must be pre-authorized by a warrant issued by a neutral magistrate unless an exception applies

2. Probable cause - warrant must be based on affidavit re probable that evidence of a crime will be found

3. Specificity - must specify the locations to be searched and items to be seized

Is mere suspicion enough for probable cause?

No

Probable cause to search definition

1. A fair probability that specific evidence of a crime will be found AND

2. A fair probability that the evidence will be found in the place that is to be searched

Probable cause to arrest definition

1. A fair probability that a crime has been committed AND

2. A fair probability that the person who is arrested committed the crime

If there is probable cause to arrest someone is there automatically probable cause to search?

No

Ways to establish probable cause

1. observations of law enforcement officers

2. information provided by a reliable source

Ways law enforcement can make observations for probable cause

1. directly observing criminal activity. This provides clear evidence of probable cause for a search/arrest.

2. They can witness different things that when taken together will amount to probable cause

If a confidential informant gives a tip about drugs being used in a hotel and the officer smells drugs, is there probable cause to enter?

Officer did have probable cause to knock and go in because they were trained to smell the drugs and did.

(Johnson)

What is crucial to analyze when discussing information provided by a reliable source?

Reliability and specificity of the information provided

Is there probable cause for a search based on information by a reliable source that there was illegal gambling with 2 phones?

No.

Not enough for probable cause because the affidavit did not establish the reliability of the informant and the basis of their information

(Spinelli v. United States)

Spinelli test for reliable sources being probable cause

1. The affidavit for the warrant must establish the basis of the informant’s knowledge

2. The affidavit must establish reliability of the informant

3. The affidavit must establish the veracity of the informant

   *rejects totality of the circumstances

How can an informant’s credibility be enhanced?

Track record, self incrimination, corroborated details

Is there probable cause based on an informant’s tip that someone was smuggling drugs from Florida with their husband?

Yes probable cause, the informant’s letter was accurate and was corroborated

Gates

Things that WILL NOT satisfy probable cause

1. Mere hunches / suspicions from law enforcement that are not supported by specific facts

2. Anonymous tips without corroboration or reliability

3. Incomplete/inaccurate information

Exceptions to the knock and announce rule

1. Threat of physical violence - if there is reason to believe a threat of violence, then police can request a no-knock warrant

2. Hot pursuit - if they are chasing someone and they run into a home there is no need to knock and announce

3. Likely destruction of evidence - can request a no-knock warrant

Policy justifications for no-knock warrants

1. Officer safety

2. Solving crimes by preventing destruction of evidence

Policy justifications for knock and announce requirement

1. protects human life

2. protects property damage

3. dignity & privacy

Is forcibly entering a hotel room allowed if the defendant slammed the door in the officer’s faces when they were trying to execute a warrant?

Yes.

This was allowed because there was reason to believe he knew they were police and he was about to destroy the drugs

(Richards v. Wisconsin)

Search rule statement

A search occurs when the government intrudes into an area where a person has a reasonable expectation of privacy.

Katz 2 part test

Seizure rule statement

A seizure occurs when an item is taken or someone is arrested or detained

4th amendment analysis

1. Is there a search or seizure by a government entity?

2. Was it reasonable?

Lawful search rule statement

For a lawful search, the government is generally required to have probable case and a search warrant.

Were there any applicable exceptions?

What is the validity of a warrant assessed on?

The basis of the information that officers disclosed, or had a duty to discover and disclose, to the issuing magistrate

Kinds of seizures

Seizure of things - government control over physical items

Seizure of people - arrests or restriction of movements

Does the government actually need to take something into custody to be considered a seizure?

No

If someone is shot, is it considered a seizure?

Yes

Requirements for a lawful arrest

1. Arrest must be based on probable cause

   1. probable cause that a crime has been committed

   2. probable cause that the person being arrested committed the crime

2. Location of the arrest

   1. If arrested in their home, a warrant is required

   2. If arrested in public, a warrant is not required.

Maryland v. Pringle

(Probable cause re arrest)

3 people riding in car, consent given to search, drugs found.

Police had probable cause to arrest all 3 people because they had probable cause that all 3 people could have been involved with the drugs

United States v. Watson

Gov informant told the police re D’s stolen credit cards. He gave a signal and the police arrested D.

The police had probable cause. The informant was reliable, detailed, and clear. no warrant needed

Rule from Payton v. New York

Arrest warrants are required to arrest someone in their home.

Fruit of the poisonous tree doctrine

Police are supposed to exclude evidence that can be traced back to unconstitutional police action

Exceptions to the general 4th amendment requirements

1. Search incident to arrest

2. Vehicle searches incident to arrest

3. Automobile exception

4. Stop and frisks

5. Vehicle stop and frisks

6. Plain view

7. Plain feel

8. Consent search

9. Exigent circumstances

10. Emergency aid

11. Administrative Searches

    1. Inventory

    2. Strip

    3. Checkpoints

Things to consider before analyzing the search incident to arrest exception

1. Was there an arrest of the person who was searched

2. Was the arrest lawful (constitutional)

Limitations placed on searches incident to arrest

Areas that CAN be searched incident to arrest

1. arrestee and containers on his body

2. Immediate areas that the arrestee can reach to grab a weapon or destroy evidence

3. Areas within arrestee’s immediate control

4. Closets and spaces immediately adjoining the location of the arrest if they could be used to launch an attack

5. Police can conduct a cursory inspection of the house if they have reasonable suspicion (based on facts) that someone posing a danger is hiding there.

6. Areas within the arrestee’s grabbing distance or wingspan, areas they could lunge to

Limitations placed on searches incident to arrest

Areas that CANNOT be searched incident to arrest

1. a room other than the room where the arrest occurred or where the arrestee walked during the arrest

2. Searching through areas in the same room where the arrestee could not reach (drawers)

If an officer cites someone instead of arresting them, can they do a search incident to arrest?

No

(Knowles v. Iowa)

If state law requires a cite instead of an arrest but the police arrest anyway, can they do a search incident to arrest?

Yes. the arrest was lawful as it pertains to the constitution even if it violates state law

When is a search incident to an arrest?

When it is substantially contemporaneous with the arrest and is confined to the area within the immediate vicinity of the arrest

Can police perform a search incident to arrest before making the actual arrest?

Yes, as long as the arrest follows quickly after the search and probable cause to arrest existed before the search took place

Can police arrest someone for minor traffic offenses that hold no jail time as punishments?

Yes

(Atwater v. Lago Vista)

Are the rules different for searching vehicles incident to arrest based on if the person is restrained?

Yes

If someone is not a recent occupant of a vehicle, can the police search their vehicle anyway under vehicle search incident to arrest?

No, the person must be arrested in the vehicle or be a recent occupant of the vehicle for it to be searched. They can search under the basic search incident to arrest rules

Is a search of a jacket in the car authorized under search incident to arrest?

Yes, the police can conduct searches of passenger compartments and containers inside, but cannot search the trunk

(New York v. Belton)

Who does the vehicle search incident to arrest exception apply to?

Recent occupants of the vehicle and people who are arrested while inside the vehicle

(Thornton v. United States)

Arizona v. Gant

Defendant was arrested for driving with a suspended license and was put into the police car before they searched his vehicle.

The court held this is not allowed under search incident to arrest because he was restrained