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61 Cards in this Set
- Front
- Back
Eight Steps to Search and Seizure Issues
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- is there govt conduct?
- did the S/S invade an individual's reasonable expectation of privacy? - was the search authorized by a facially valid warrant? - does and officer's "good faith" save a defective warrant? - was the search warrant properly executed? - is the search valid under any of the 8 exception to the warrant requirement? - can prosecutors use the evidence gather in an UN-constitutional S/S against the D in court? - is there any evidence introduced by the prosecution "Fruit of the poisonous tree" and if so, is the evidence admissible? |
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4 AMD Protected Areas (4)
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- persons
- houses - papers - effects |
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Unprotected items (8)
P-A-A-G-V-O-H-O |
- paint scrapings
- account records at bank - airspace - garbage left at curb - voice - open fields - handwriting - odors |
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Rule for Overnight Guests
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may always grant search to guest areas
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Rule for seizing a purse in a car
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the purse may not be seized ONLY if the passenger has a reasonable expectation of privacy in the item searched and seized
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Two core components for a valid warrant
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- probable cause
- particularity |
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4 Exceptions where an officer's "good faith" cannot save a defective search warrant
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- eggregiously lacking in p/c
- eggregiously lacking in particularity - district atty was lied to or misled - magistrate was biased |
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Three exceptions to "knock and announce"
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- futile
- danger - inhibit investigation |
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8 Exceptions to warrant requirement
E-S-C-A-P-I-S-T |
- exigent circumstances
- search incident to arrest - consent - automobile - plain view - inventory - special needs - Terry Stop and Frisk |
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Five Examples of Special Needs Doctrine
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- random drug testing
- probationer's home - govt employee's desks and files - student effects in public school - non-citizens |
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Terry Stop
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brief detention or seizure to investigate suspicious conduct
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Terry Frisk
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pat down of body and outer clothing for weapons
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Evidentiary Std for Terry Stop and Frisk
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reasonable suspicion
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What can you seize in a Terry Stop (2)
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- weapons
- obvious contraband (without manipulating) |
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When are you "seized" for 4AMD purposes?
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based on the totality of the circumstances that a reasonable person would not feel free to leave or to decline an officer's request to answer questions
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What should be considered to determine seizure (3)
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- did officer brandish a weapon
- officer's demeanor - was the individual told he could refuse consent |
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Who is seized suring a traffic stop?
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driver and all passengers
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Exclusionary Rule
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Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated
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4AMD limits to exclusionary rule (4)
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- case-in-chief cross examination (used to impeach)
- exempted proceedings (grand jury, civil trial, parole revocation hearings) - knock and announce violations (failure to comply does not require suppression) - officer's reasonable mistake |
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How to nullify Fruit of Poisonous Tree
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show a break in the causal link between original illegality and criminal evidence discovered
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Three Doctrines which nullify Fruit of the Poisonous Tree by breaking causal connection
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- independent source
- inevitable discovery - attenuation (D's free will has been restored by passage of time an intervening events) |
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Four Major Requirements for Wire-tap Warrant
P-P-C-T |
- prob cause
- persons (named) - conversations (particularly described) - time (strictly limited) |
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"Unreliable Ear" Doctrine
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if you speak to someone who has agreed to wiretap or some other form or electronic monitoring, you have no 4AMD claim, you have assumed the risk that the other party will not keep the conversation private
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When does ARREST occur?
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when police take a person into custody against his well
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De Facto Arrests (2)
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come to the station for:
- fingerprinting - questioning |
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What do you need to arrest a person in the home of another?
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arrest and search warrants
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"Common Enterprise" theory of a traffic stop
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where a police officer discovers evidence of a crime that it suggests a common unlawful enterprise between the driver and passenger(s), the officer may arrest any or all of them based on reasonable inference of shared dominion and control over the contraband
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Three Const Challenges brought to exclude a confession
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- Due Process (14AMD)
- Right to Counsel (6AMD) - Miranda Doctrine (5AMD) |
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What is the standard for excluding a confession under the Due Process Clause?
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involuntariness
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When does 6AMD right to counsel attach?
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when D is formally charged
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Two Core Requirements for Miranda Warnings
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- custody
- interrogation |
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Two core requirements for Miranda waiver
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- knowing and intelligent
- voluntary |
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Burden of Proof for Miranda Waiver
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prosecution bears BoP by a preponderance of evidence
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Difference between Miranda and 6AMD in terms of treatment
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- 6AMD all questions must cease unless initiated by suspect
- 5AMD (Miranda) scrupulously honor the earlier request |
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What can statements taken against Miranda be used for?
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- impeach D on cross but not witnesses
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Does failure to give Miranda warnings exclude "physical fruits"?
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no
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Three types of pre-trial ID's
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- line ups
- show ups - photo arrays |
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Is there a 5AMD right to counsel under Miranda for pre-trial ID procedures?
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no
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Does a right to counsel exist under the 6AMD at line-ups and show-ups taking place after formal charging?
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yes
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Is there ever a 6AMD right to photo array ID procedures?
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no
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Does a pretrial ID which is so unnecessarily suggestive that there is a substantial likelihood of misidentification crease a Due Process Concern?
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yes
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What is the remedy for constitutional violations in pre-trial identifications?
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exclusion of witness ID in court
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What happens at "First Appearance"
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D is brought before a magistrate who will advise him of his rights, set bail, and appoint counsel if necessary
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Are decisions regarding bail immediately appealable?
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yes
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What must a prosecutor disclose to a criminal D
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all material exculpatory evidence
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When does a criminal D have a right to a jury trial?
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when max sentence CAN BE > 6 months
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Fewest number of jurors in a criminal trial
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6
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Must jury trial verdict be unanimous?
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only if 6 jurors are used
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What is the meaning "cross-sectional" requirement regarding jurors?
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jury pool represents cross section of the community
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Two prong test for ineffective assistance of counsel
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- counsel's performance was deficient
- but for the deficiency the outcome would be different |
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Four requirements for plea taking colloquy
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- nature of charge
- max authorized sentence and any mandatory minimum - D has right to plead not guilty and proceed to trial - by pleading guilty, D is waiving trial and going directly to sentencing |
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When may a D withdraw a guilty plea after sentencing (4)
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- problem with colloquy
- jurisdictional defect - D prevails on ineffective assistance of counsel claim - prosecutor fails to fulfill his part of the bargain |
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What does the 8AMD prohibit?
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criminal penalties that are grossly disproportionate to seriousness of offense committed
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Three categories of people who may not be sentenced to death
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- mentally retarded
- presently insane - under 18 when relevant offense occurred |
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When does double jeopardy attach?
- jury trial - bench trial - guilty plea |
- when jury is sworn
- when first witness is sworn - when CT accepts plea, unconditionally |
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Does double jeopardy apply to civil proceedings?
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no
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Requirement for two offenses to not be the "same" offense for purpose of double jeopardy?
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each has a element the other does not
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Same Sovereign
State v. Fed State v. State Stave v. City |
- no
- no - yes |
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Four exceptions for double jeopardy rule that permit retrial
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- hung jury
- mistrial for manifest necessity - retrial after appeal - breach of plea bargain by D |
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If "taking the fifth" is not asserted at the first opportunity, is it forever lost?
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yes
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Three ways to eliminate the Self-Incrimination privilege
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- prosecutorial grant of "use and derivative use" immunity
- D takes stand - SoF runs on underlying crime |