Missouri Criminal Law FTO

Gardner v Tennessee

you may use deadly force to effect and/or maintain an arrest if the following conditions exist:

The person presents a threat of serious physical injury to you or another or the person has committed a felony which involved the use of or threatened use of a deadly weapon and the use of deadly force is necessary to effect or maintain the arrest (that is, deadly force is the minimum force necessary) and a warning is given, if at all possible.

Miranda Warning/Rights

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. You can decide at any time to exercise these rights and not answer any questions or make any statement.

(1) The suspect must state/agree that he/she understands the rights read to him/her. (2)The suspect must agree to waive his/her rights and answer questions.

Graham v. Connor

excessive force test considers three factors (three prong test):

1) The severity of the crime

2) Whether the suspect poses an immediate threat to the officer's or the public's safety

3) Whether the suspect is actively evading or resisting arrest

exclusionary rule (Mapp v. Ohio)

The rule that evidence, no matter how incriminating, cannot be introduced into a trial if it was not constitutionally obtained. The rule prohibits use of evidence obtained through unreasonable search and seizure.

Plain View Doctrine

1.) The officer must be lawfully present at the time of the sighting:

Ex. Search warrant - drugs in plain view

Ex. Consent - "can I look around in your car?"

Ex. Search incident to arrest - arrest made in home - drugs on nearby table (lunging area)

2.) The item must be immediately recognized as evidence or contraband.

3.) You must have legal access to the area to seize it.

In a situation where evidence or contraband is on curtilage, in plain view of the officer, but outside the area where he/she has a legal right to be, the officer should impound the property and seek a search warrant to make the entry unless consent is given.

Terry v. Ohio (1968)

Supreme Court decision endorsing police officers' authority to stop and frisk suspects on the streets when there is reasonable suspicion that they are armed and involved in criminal activity

For a suspect the scope of the Frisk is limited to a pat down of the outer clothing, only looking for weapons.

Suspected crime involved use of weapons

Previous knowledge suspect may be armed

Suspect's behavior - nervous, edgy, evasive

Bulge in suspect's clothing

Person's prior criminal record

Suspect's hand concealed in pocket

Inadequate explanation for behavior

Arizona v. Gant (2009)

Searches of motor vehicles incident to arrest when the arrestee is no longer in the vehicle is valid only if it is reasonable to believe that evidence of the reason for the arrest might be found in the vehicle

Chimel v. California (1969)

Supreme Court decision that endorsed warrant-less searches for weapons and evidence in the immediate vicinity of people who are lawfully arrested. SIA originates from this case.

Carroll v. U.S. (1925)

The officer must have probable cause that the vehicle contains evidence of a criminal offense, AND

The vehicle must be in an apparently mobile condition in a place to which officers have lawful access.

Missouri v. McNeely (2013)

Ruled that police should obtain a search warrant prior to the drawing of a person's blood for alcohol testing.

Taking a blood sample with a warrant or under these special conditions is lawful as long as the extraction is done by competent medical personnel.

Maryland v. Wilson (1997)

During traffic stops, officers may order passengers as well as the driver to exit the vehicle, even if there is no basis for suspicion that the passengers engaged in any wrongdoing

First Amendment

5 freedoms: speech, press, religion, assembly, petition

Second Amendment

Right to bear arms

Third Amendment

No quartering of soldiers

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against UNREASONABLE SEARCHES AND SEIZURES, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment

A constitutional amendment designed to protect the rights of persons accused of crimes, including protection against double jeopardy, SELF-INCRIMINATION and punishment without due process of law.

Sixth Amendment

A constitutional amendment designed to protect individuals accused of crimes. It includes the RIGHT TO COUNSEL, the right to confront witnesses, and the right to a speedy and public trial.

Seventh Amendment

Right to trial by jury

Eigth Amendment

protection from excessive bail, excessive fines, cruel and unusual punishment.

The three branches into which the government is divided

• Legislative Branch- consisting of the two houses of Congress, the House of Representatives and the Senate, is the branch that makes the law by voting on proposed legislation.

• Executive Branch- It includes the President, White House staff, all of the Cabinet members and their large supporting agencies: the FBI, DIA, DEA, etc. On the state level it includes the Governor, Lt Governor, etc. Commissions, agencies, local governments and you.

• Judicial Branch- made up of the judges and their assistants, is concerned with the interpretation and application of the laws.

4.3 Conspiracy (§562.014)

Class C Felony

Elements:

A person commits the offense of conspiracy to commit, in any manner or for

any purpose, an offense if:

1. the person agrees, with one or more persons

2. to commit any class A, B, or C felony offense, OR

3. any unclassified felony offenses if the maximum term of imprisonment for such unclassified felony exceeds ten years or more, AND

4. one or more of such persons do any act in furtherance of such an agreement.

5.2 First Degree Murder (§565.020)

Class A Felony (Penalty shall be death or life imprisonment without probation or parole if over 18 at the time of the commission of the offense

Elements:

A person commits the offense of first degree murder if (s)he:

1. knowingly

2. causes the death of another

3. after deliberation* upon the matter.

5.3 Murder In The Second Degree (§565.021)

Class A Felony

Elements:

A person commits the offense of murder in the second degree if (s)he:

1. a. i. knowingly causes the death of another person; OR

ii. causes the death of another person with the purpose of causing serious physical injury; OR

2. a. causes the death of another person,

b. i. while committing or attempting to commit any felony; OR

ii. while in the immediate flight from the perpetration of any felony or attempted felony.

5.4 Voluntary Manslaughter (§565.023)

Class B Felony

Elements:

A person commits the offense of voluntary manslaughter if (s)he:

A. 1. causes the death of another person by

2. a. being practically certain of taking the victim's life; OR

b. having the conscious object of causing serious physical injury;

AND

3. did so under the influence of sudden passion arising from

adequate cause; OR

B. 1. knowingly

2. assisting another

3. in the commission of self-murder (i.e. suicide).

5.5 Involuntary Manslaughter in the First Degree(§565.024)

Penalty Varies

Elements:

A person commits the offense of involuntary manslaughter in the first degree if (s)he:

1. Recklessly causes the death of any person.

Penalty: The offense of involuntary manslaughter in the first degree is a class C felony, unless the victim is intentionally targeted as a law enforcement officer, as defined in §556.061, or the victim is targeted because (s)he is a relative within the second degree of consanguinity (blood) or affinity (marriage) to a law enforcement officer, in which case it is a class B felony.

5.6 Involuntary Manslaughter in the Second Degree (§565.027)

Penalty Varies

Elements:

A person commits the offense of involuntary manslaughter in the second degree

if (s)he:

1. Acts with criminal negligence;

2. to cause the death of any person.

Penalty:

The offense of involuntary manslaughter in the second degree is a class E felony,

unless the victim is intentionally targeted as a law enforcement officer, as defined in §556.061, or the victim is targeted because (s)he is a relative within the second degree of consanguinity or affinity to a law enforcement officer, in which case it is a class D felony.

5.8 First Degree Assault (§565.050)

Penalty Varies

Elements:

A person commits the offense of first degree assault if (s)he:

1. attempts to kill another person; or

2. knowingly causes or attempts to cause serious physical injury to another person.

Penalty:

First Degree Assault is a Class B Felony, unless serious physical injury has been inflicted, or it is to a special victim, then it is a Class A Felony.

5.9 Second Degree Assault (§565.052)

Penalty Varies

Elements:

1. attempts to kill or knowingly causes or attempts to cause serious physical injury under the influence of sudden passion arising out of adequate cause; or

2. attempts to cause or knowingly causes physical injury by means of a deadly weapon or dangerous instrument; or

3. recklessly causes serious physical injury; or

4. recklessly causes physical injury by means of discharging a firearm.

Penalty:

Second Degree Assault is a Class D Felony. If the person is a special victim, then it is a Class B Felony.

5.10 Third Degree Assault (§565.054)

Penalty Varies

Elements:

A person commits the offense of third degree assault if (s)he knowingly causes physical injury to another person.

Penalty:

Third Degree Assault is a Class E Felony. If the person is a special victim, then it is a Class D Felony.

5.11 Fourth Degree Assault (§565.056)

Penalty Varies

Elements:

A person commits the offense of fourth degree assault if (s)he:

1. attempts to cause or recklessly causes physical injury, physical pain, or illness; or

2. with criminal negligence causes physical injury by means of a

firearm; or

3. purposely places another person in apprehension of immediate physical injury; or

4. recklessly engages in conduct which creates a substantial risk of death or serious physical injury; or

5. knowingly causes physical contact with a disabled person, which a reasonable person, who is not disabled, would consider offensive or provocative; or

6. knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative.

Penalty:

Fourth Degree Assault is a Class A Misdemeanor if a person violates subdivisions 1, 2, 4, or 5 above. It is a Class C Misdemeanor if a person violates subdivisions 3 or 6 above unless the victim is a special victim then it's a Class A

Misdemeanor.

5.21 Harassment First Degree (565.090)

Class E Felony

Elements:

A person commits the offense of harassment first degree when, without good cause, (s)he engages in any act with the purpose to cause emotional distress to another person, and such act does cause such person to suffer emotional distress.

5.22 Harassment Second Degree (565.091)

Penalty Varies

Elements:

A person commits the offense of harassment second degree when, without good cause, (s)he engages in any act with the purpose to cause emotional distress to another person.

Penalty:

Harassment in the second degree is a class A misdemeanor, unless the person has previously pleaded guilty to or been found guilty of a violation of this section, of any offense committed in violation of any county or municipal ordinance in any state, any state law, any federal law, or any military law which if committed in this state would be chargeable or indictable as a violation of any offense listed in this subsection, in which case it is a class E felony.

Robbery in the First Degree (§570.023)

Class A Felony

Elements:

A defendant forcibly steals property and in the course thereof (s)he, or another participant in the offense:

1. Causes serious physical injury to any person; or

2. Is armed with a deadly weapon; or

3. Uses or threatens the immediate use of a dangerous instrument against any person; or

4. Displays or threatens the use of what appears to be a deadly weapon or dangerous instrument; or

5. Steals any controlled substance from a pharmacy.

Robbery in the Second Degree (§570.025)

Class B Felony

Elements:

A defendant forcibly steals property and in the course thereof causes physical injury to another person.

Stealing (§570.030)

Penalty Varies

Elements:

A person commits the offense of stealing if (s)he:

1. appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion; OR

2. attempts to appropriate anhydrous ammonia or liquid nitrogen of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion; OR

3. for the purpose of depriving the owner of a lawful interest therein, receives, retains, or disposes of property of another knowing that it has been stolen, or believing that it has been stolen.

569.160 1st Degree Burglary

Knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing an offense therein, and when in effecting entry or while in the building or inhabitable structure or in immediate flight therefrom, the person or another participant in the offense:

1. Is armed with explosives or a deadly weapon or

2. Causes or threatens immediate physical injury to any person who is not a participant in the crime or

3. There is present in the structure another person who is not a participant in the crime.

Class B Felony

569.170 2nd Degree Burglary

Knowingly enters unlawfully or knowingly remains unlawfully

in a building or inhabitable structure for the purpose of committing an offense therein.

Class D Felony

Peace Disturbance (§574.010)

Penalty Varies (See Below)

Elements:

A person commits the offense of peace disturbance if (s)he:

1. unreasonably and knowingly disturbs or alarms another person or persons by:

a. loud noise; OR

b. offensive language addressed in a face-to-face manner to a specific individual and uttered under circumstances which are likely to produce an immediate violent response from a reasonable recipient;

OR

c. threatening to commit a felonious act against any person under circumstances which are likely to cause a reasonable person to fear that such a threat may be carried out; OR

d. fighting; OR

e. creating a noxious and offensive odor; OR

2. a. is in a public place or on private property of another without consent;

AND

b. purposely causes inconvenience to a person or persons by

unreasonably and physically obstructing

i. vehicular or pedestrian traffic; OR

ii. free ingress or egress to or from a public or private place

Penalty:

Peace disturbance is a class B misdemeanor upon the first conviction. Upon a second or subsequent conviction, peace disturbance is a class A misdemeanor.

Upon a third or subsequent conviction, a defendant shall be sentenced to pay a fine of not less than one thousand dollars and not more than five thousand dollars.

Resisting or Interfering with Arrest (§575.150)

Penalty Varies (See Below)

Elements:

A person commits the offense of resisting arrest if:

1. (s)he (knows) that a law enforcement officer is making

a. an arrest; OR

b. attempting to lawfully detain or stop an individual or vehicle; OR

2. (s)he reasonably should know that a law enforcement officer is making

a. an arrest; OR

b. attempting to lawfully detain or stop an individual or vehicle; AND

3. for the purpose of preventing the officer from effecting the arrest, stop or detention, (s)he

4. resists the arrest, stop or detention himself/herself by the use of or threat of violence, physical force, or flight from the officer; OR

5. interferes with the arrest, stop or detention of another by using or threatening the use of violence, physical force, or physical interference.

Penalty:

Class E Felony-if resisting or interfering with arrest for a felony

Class E Felony-if resisting an arrest or lawful detention by fleeing in such a manner that the person fleeing creates a substantial risk of serious physical injury or death to any person

Class E Felony - if arresting on a "failure to appear" warrant on a felony case

Class A Misdemeanor-all other cases

Armed Criminal Action (§571.015)

Penalty Varies (See Below)

Elements:

A person commits the offense of armed criminal action if:

1. (s)he commits any felony

2. by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon.

First offense -- not less than three years and not more than fifteen years of imprisonment. If the person was unlawfully possessing a firearm, then the term will be not less than five years.

Second offense -- not less than five years and not more than thirty years imprisonment. If the person was unlawfully possessing a firearm, then the term will be not less than fifteen years.

Third offense -- not less than ten years imprisonment. If the person was unlawfully possessing a firearm, then the term will be not less than fifteen years.

544.665 Failure to Appear

Any person who having been released upon a recognizance or bond pursuant to any other provisions of law while pending preliminary hearing, trial, sentencing, appeal, probation or parole revocation or any other stage of a criminal matter against him, knowingly fails to appear before any court or judicial officer as required shall be guilty of the crime of failure to appear.

569.140 Trespass 1st Degree

1. Knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property.

2. A person does not commit the offense of trespass in the first degree by entering or remaining upon real property unless the real property is fenced or otherwise enclosed in a manner designed to exclude intruders or as to which notice against trespass is given by:

-actual communication to the actor

-posting in a manner reasonably likely to come to the attention of intruders

Class B misdemeanor

569.150 Trespass 2nd Degree

A person commits trespass in the second degree if he enters unlawfully upon real property of another.

Infraction