Criminal Justice Cole Spring 2008 Chart Final

8/6/2019 Criminal Justice Cole Spring 2008 Chart Final

1/12

NONCONSENSUAL SEARCH & SEIZUREFacts Need Rule Case

Search Conduct thatinterferes withobjectivelyreasonableexpectation ofprivacy

Seizure Full-scale arrest

(PC) orBrief Terry Stop(RAS)

Officer seizes a person

when he has restrained thatpersons liberty by physicalforce or show of authority

Terry & NEJ 18

Hodari D(badge notenough)

FULL-SCALE ARRESTProbable Cause= sufficient basisfor a warrant

A fair probability Probable causefor seizure/arrest:

fair probability that the person you

are arresting committed a crimeProbable causefor search: fair

probability that evidence of a crime

will be found in place to be searched(must not exceed scope of warrant)

Warrant based onAnonymous Tip

PC based onveracity andknowledge

TOC: deficiency in veracitymay be compensated for bybasis of knowledge and viceversa

GatesSpinelli

Arrest (in public) PC + Pugh Hearingin 48hrs =functionalequivalent of awarrant

Dont need a warrant toarrest;May arrest w/o W for minorcriminal offense punishableonly by fine; If illegallyarrested confession is FOPT

WatsonAtwater(seatbelt)

Arrest in home PC + WarrantReasonable beliefthat person ishome

Unless there are exigentcircumstances (suspect maydestroy evidence; hotpursuit) may not arrest inhome w/o Warrant; Evidenceseized during warrantlessarrest in home isinadmissible; If illegallyarrested confession is FOPT

Payton

Arrest byAssociation

PC based onunparticularized

reasonablesuspicion

Reasonable inference ofcommon enterprise: if drugs

found in car and no oneclaims ownership may arresteveryone in car BUTif develop reason to believethat one person is guilty tothe exclusion of the othersmay not arrest everyone

PringleDi Re

Search pursuant toarrest(SILA)

ArrestNo PC

arrest entitles govt full searchfor evidence or weapons,regardless of whether reasonto believe that suspect is

Robinson


2/12

armed or carrying contraband

Search in homepursuant to arrest(SILA)

substantiallycontemporaneouswith the arrest +confined toimmediate vicinityof the arrest+ obviouscontraband in plain

view

ltd search of area withinimmediate reach of arrestee& protective sweep (beyondSILA) throughout house; Maylook in places that fit aperson or where immediateattack could be launched; ifreasonable belief of threat

elsewhere (other floors) maygo there

ChimelVale (ifarrested indriveway cansearch house)

Search of carpursuant to arrest(SILA)

ArrestNo PC

Search everything but thetrunk; ensures officers safetyand preserves evidence; Butcant conduct full search ofcar if merely issued citation

ThorntonBelton

Knowles(distinguishd)

BRIEF TERRY STOPFacts Need Rule Case

Terry Stop RAS that crime isafoot

(under TOC)No PCNo Warrant

Brief detainment is a seizurebut not an arrest; exigentcircumstance of needingquick response justifies noPC/W; must not be longer(time needed to effectuatepurpose) or more intrusivethan necessary;Objective Test: Reasonableunder TOC; other than drug-sniffing dogs (gives PC) Terrystop cannot be used tosearch for evidence

TerryWardlow(flight + highcrime area)J.L. (anon tipnotcredible; noRAS)Place (notbrief; canine)Royer (notbrief)Reid: Drugcourier profile(NEJ-48)

Terry Frisk RAS of weaponsNo PCNo Warrant

Pat down is a search butexigent circumstance ofneeding quick responsejustifies no PC/W;Objective Test: Reasonableunder TOC & Scope ltd tofinding weapons

Terry;Dickerson:plain feel =may seize ifupon touchyou have PCfor drugs

Royer: exceedscope


3/12

NON-CONSENSUAL STOP & SEARCH GENERALLYFacts Need Rule Case

Pretext Stop(Stop of Driver &Passengers)

PC that D violatedtraffic codeNo PC of crimeneeded

as long as an officer observesa traffic violation, a stop isconstitutionalstop of a driver = stop ofpassengers bc would not feelfree to terminate

Whren

BrendlinMarshall (SM)

Search of house PC + Warrant(or consent)

Search ofcontainer onstreet

PC + Warrant May seize container and letsuspect walk away but needwarrant to search

Hodari D hypo

Search of amotorhome or car

PCNo Warrant

where there is PC nowarrantneeded for search of readilymovable vehicles; ReducedEP; mobile; history ofinspection

Carney

Search ofcontainer in car

PCNo Warrant

May search closed container inyour car EVEN IF lack PC tosearch the entire car. Butscope of the search must berelated to PC

Acevedo

Search of

PassengersEffects if PC tosearch car

PC that effects

may containobject of thesearch

PC to search a car includes

inspecting passengers objectsin the car that are capable ofconcealing the object of thesearch

Wyoming v.

Houghton

Search ofpassengers ifPC to search car

PC of passengers PC to search a car does NOTextend to searchingpassengers

Di Re (FNScalia)

ElectronicSurveillance

(Wiretapphonebooth;wiretap phone inhome; invade wall;beeper in home;thermal imaging =Search)

PC + Warrant 4th Am. protects allcommunications that a person

does not knowingly expose tothe public (REP); 4th Amprotects people, not places;tech must not be rare butbroadly avail to public; ifsomething monitored may gointo a home need a warrant toinstall

Katz(phonebooth)

Kyllo(thermal)Karo (if inhome)Riley(helicopter)

Secret Agent/Informant and Bug

No PCNo Warrant

wire on govt informant ok; Dassumes third party risk and

White


4/12

on Informant(Not a Search)

has No REP in conversation

Garbage (Not aSearch)

No PCNo Warrant

No REP in garbage;abandonment

Greenwood

Administrative orRegulatory Search

No PCNo Warrant

(1) Serves special needbeyond ordinary lawenforcement + (2) minintrusion/gov interest/

efficacy/ standardizedInventory/Parolees/Sobriety/Border Patrol ok; checkpt fordrugs not bc no immediatedanger to other drivers

Bertine:inventorySamsonparolees

Sitz sobrietyEdmund drugLidsterknowledge ocrimecheckpt


5/12

CONSENSUAL STOP & SEARCHCONSENT

Facts Need Rule CaseConsensual Stopon Street

Voluntary ConsentNo PCNo WarrantNo Warning of Rtnot to Consent

Objective Test: under thetotality of the circumstances(TOC), would a reasonableperson feel free to terminatethe encounter? dont need

to inform suspect of rightto refuse consent

SchnecklothRoyer

Consensual Stopon Bus


Objective Test: Under TOCwould reasonable person feelfree to terminate theencounter (Usu. not a seizureunless overwhelming show offorce, blocking exits, threatsor commands); dont needto inform suspect of rightto refuse consent

DraytonBostick

Consensual Searchon Street or on Busetc.


Subjective Test: did individualvoluntarily consent? TOC:conditions of encounter andsubjective state of suspect;dont need to informsuspect of right to refuseconsent

SchnecklothBostickDrayton

Consensual Searchof Car Voluntary ConsentNo PCNo WarantNo Warning of Rtnot to Consent

Subjective Test: did individualvoluntarily consent? TOC:conditions of encounter andsubjective state of suspect.Consent to search carincludes any closedcontainers in car UNLESS Dclearly limits scope; dontneed to inform suspect ofright to refuse consent

Florida v.Jimeno

Consensual Searchof House (scope) Voluntary ConsentNo PCNo WarrantNo Warning of Rtnot to Consent

Subjective Test: did individualvoluntarily consent? TOC:conditions of encounter andsubjective state of suspect.Scope limited to object of thesearch & anything in plainview dont need to informsuspect of right to refuseconsent

Bretti v.Wainwright

Consensual Search Voluntary Consent Subjective Test: did individual Randolph


6/12

of House(Co-tenant/ ThirdParty)

No PCNo WarrantNo Warning of Rtnot to Consent

voluntarily consent? TOC:conditions of encounter andsubjective state of suspect.Third Party has legalauthority or apparent legalauthority over spaceUNLESS D is present andobjects

Search ofPassengersEffects after DriverConsents to Searchof Car

PC that effectsmay contain objectof the search

Drivers consent does NOTinclude consent to searchobjects owned by passengers

James(didnt read foclass)

OTHERFacts Need Rule Case

Exclusionary Rule Evidence isillegally obtainedin violation of 4th orother Ams

Fruit of the PoisonousTree: Evidence isinadmissible + evidenceobtained by virtue of theviolation is also inadmissibleagainst you for this crimeand other crimes; but mayuse against someone else

(e.g. if Terrystop invalidevidenceobtained =tainted fruit)

Exceptions toExclusionary Rule

1-6 because theyhaveno deterrenceeffect to outweighsocial cost

Grand Jury!

(1) evidence discoveredthrough independent source;(2) inevitable discovery; (3)link btwn violation &evidence too attenuated(K/A); (4) good faithexception; (5) Non-CriminalTrials; (6) Criminal Trial: Dtakes stand and mayimpeach himself

Nix v. WilliambodyHudson: K/A

Good FaithException toExclusionary Rule

WarrantMagistrate mistakeNo PC but notentirelyunreasonable tobelieve there wasPC

Objective good faith: would areasonably well-trainedofficer have known? Evidenceobtained by officers acting inreasonable reliance on searchwarrant ok (unless recklesslyfalse)

Leon (backtraon Mapp)

NO Good FaithException toExclusionary Rule

No WarrantOr Warrant and 1-5 1. Application is totallylacking in PC2. Officer presents

knowingly false application3. Magistrate wholly

abandons judicial role (eg,goes to the scene of crime)

4. Warrant is so faciallyinvalid to be unreasonableto think it was validImproperly executed by

Leon (backtraon Mapp)


7/12

officer5. W improperly executed by

officer

Good Faith Mistakeon Warrant Info &Execution

Otherwise Valid W=Particularized &ReasonablyExecuted

good faith factual mistakesdo not invalidate anotherwise valid searchwarrant BUT failure to specifythe thing to be searched =invalid warrant and

unreasonable search

Garrison

Groh

Waiving Knock &Announce

reasonablesuspicion that K/Awould bedangerous, futile,or result indestruction ofevidence of thecrime

No general K/A waiver fordrug cases

Richards

Use of deadly force PC + belief thatperson poses athreat (No W)

Equal ProtectionSelectiveProsecution under5th Amendment(via 14th for states)

DiscriminatoryIntent & DisparateTreatment

Prosecuted because of (not inspite of) suspect category &no one similarly situated wasprosecuted; to prove simsituated govt must be awarethat these others committedsame crime; govtadministered the lawbecause ofthe effects itwould have

ArmstrongMcCleskey

Entrapment Agent induced tocommit crime &suspect notpredisposedGovt not justimitating themarket

Maj: Subj. Test: Was Dpredisposed to commit crimeprior to govt contact? (priorarrests, character)Min: Obj. Test: did stateengage in improper conduct?(bright-line)

JacobsonRussellSorrellsSherman

6th AMENDMENT RIGHT TO COUNSELFacts Need Rule Case

6th

Am. Right toCounsel CriminalProsecution(= post-indictment)

6th

Am incorporated via 14th

for states; Once govt initiateslegal proceedings (indicted orarraigned) against suspect rtto counsel attaches; If D hadrt to counsel at trial and wasdenied, conviction must bereversed; Offense specific

GideonArgesinger(actualimprisonmentBrewerMassiah

Proving Violationof 6th Am. Right toAppointed Counsel

Dindicted/arraigned+ invoked right to

Offense specific; Policemay interrogate about otherunrelated offenses; counsel

MI v. Jackson


8/12

DuringInterrogation

counsel + Policecontinue tointerrogate w/ocounsel

must be there for thatspecific right

Pre-trial Right toAppointed Counsel

Any critical stagein the process

Offense specific; Const rt tocounsel arises at initiation ofadversary criminalprosecution; any time whenabsence of counsel might

derogate right to fair trial(line-ups; custodialinterrogation; psych exams;pre-trial arraignment; prelimhearing to determine PCagainst accused)

KirbyMiranda (5th)Brathwaite

No Pre-trial Rightto AppointedCounsel

Pre-indictment;Non-adversarialstage

Grand jury (investigatory innature)Pre-indictment line-up; Non-adversarial post-indictmentphoto line-up

Ash

At Trial Right toAppointed Counsel

ActualimprisonmentSuspendedSentence

Actual (not mere threat of)imprisonment needed; ifcrime punishable by fine orimprisonment D only has rt tocounsel if gets jail sentenceOR if uncounseled D getsprobation + suspended jailsentence & probation is laterrevoked

Argesinger

Shelton

Post-Trial Right toAppointed Counsel

All sentencehearingsFirst automaticappeal

First and only first automaticappeal to appellate (notsupreme) court

DouglasHalbert (disc too)

No Post-Trial Rightto AppointedCounsel

Post-convictionhearingProbation or ParoleRevocationDiscretionaryAppeals

DP not EP inquiry:subsequent courts canprovide fair considerationbased on trial record andinitial appellate briefs; Ddoesnt need counsel to

make further appealsmeaningful

MoffittNEJ 73

Proving IneffectiveAssistance ofCounsel (virtuallyimpossible)

D had right tocounselDeficientPerformancePrejudice

Burden on D to show outsiderange of professionallycompetent assistance &reasonable probability thatresult would have beendifferent; (Actual conflict ofinterest; Counsel failed toreview prior conviction file); If

PowellStricklandRompillaNEJ 78-94(drunk)


9/12

ineffective, resultingconviction may beoverturned, case retried andlesser penalty stipulated

Proving 6th Amright to counselviolation(generally)

DeliberateElicitation &counsel notpresent afterinvoked

Direct, not passive,action by police orinformant

Subjective Test: did officeract deliberately to elicitstatement? protect atty-clientrelationship; 6th Am is a trialright & is offense specific;

Fruit of poisonous treeapplies; concerned withofficer intent

BrewerKuhlmann

Proving 6th Amright to counselviolation of line-up

Critical Stage +Post-indictmentline-up or show-up

If counsel not present forpost-indictment line-up thenper se inadmissible: FOPT(unless can show indy basis);BUT No rt to counsel at post-indictment photo lineup & no rt at

line/showup if just arrested and not

yet indicted

WadeKirby

Ash

Admitting In-CourtID even thoughOut of Court Post-Indictment IDviolated 6th Am rtto Counsel

State must showclear & convincingevidence ofindependent basisfor ID besides pre-trial uncounseledID

Burden is on the state to show in-

court ID is from independent source.Prophylactic rule = counselneeded to be there tosafeguard process

Wade


10/12

5th AMENDMENT RIGHT TO COUNSEL AND RIGHT AGAINST SELF-INCRIMINATION

Miranda warning ofright to counsel, rightto remain silent, andright against S-I

(Prophylactic rule tosafeguard yourrights; founded in theConst but not literallyrequired by text)

Custody +Interrogation bythe state ( +suspect is aware itis the state)

Custody = arrest or functionalequivalent of arrest (not Terryor auto stops!); Obj Test: wouldreasonable person in samesituation know that he could

terminate questioning?+ Interrogation = Expressquestioning or the functionalequivalent = Obj Test: wouldreasonable officer thinkstatement/q would elicit anincriminating response? Turnson assumption that custodialinterrogation is inherentlycoercive

YarborouBerkemeInnis(indirect)Perkins

(state)Moran:sister hirelawyer bucops mayblock fromrm

Proving 5th Amviolation of self-incrimination

Interrogation bythe state &suspect knows itsthe state

Objective test: would areasonable officer thinkstatement/Q would likely leadto an incriminating response?Coercive effect of action (notofficer intent); Not offensespecific: any interrogationabout anything triggers 5th Amright against S-I

PerkinsMosley (2break ok)

Proving waiver of 5th

Am rights (generally)Burden on govt: DKnowingly &intelligentlyvoluntarily waived

State bears burden of provingthere has been an expresswaiver of rights; Voluntariness:Ds prior history w legalsystem; evidence of coercion,trickery; delay btwn arrest andconfession

Video

Cessation ofquestioning(rt to counsel)

Unambiguousassertion of rt tocounsel

Once rt to counsel asserted,must stop questioning untilcounsel is present even if D

consulted with counsel; Policemay not reinitiate

EdwardsMinnickDavis

Proving waiver of 5th

Am right to counselduring questioning:Resume questioning(pre-indictment)

D invokes rt to counsel

but then waives it byevincing a willingness

and a desire for a

generalized discussionabout the investigation

Officer says you dont

have to talk to me

Minnick restricts police (not suspects)

from re-initiating. Unlike a "necessaryinquiry arising out of the incidents of

the custodial relationship" (like asking

for H20); could reasonably have beeninterpreted by the officer as relating

generally to the investigation (e.g.

Whats going to happen to me?) =

Bradshaw(p.389)


11/12

knowing waiver of 5th Am right

Resumingquestioning(rt to remain silent)

Passage of asignificant amountof time

May ask if want to waive rt toremain silent after previousassertion of rt

Mosley

Public SafetyException to Mirandawarning

Presumptive (notactual) coercion

Obj. Test: is there a publicsafety concern? If so noviolation of 5th to admit non-

Mirandized testimony

Quarles

Using non-Mirandizedstatements in court

Impeaching awitnessUse of statementto incriminateothersUse of non-testimonialevidence obtainedthrough Mirandaviolation

Prophylactic so fruit of thepoisonous tree doctrinedoesnt apply = may submitnon-testimonial evidencefound via the statement; ifgovt doesnt use incriminatingstatement in trial obtaining itdoesnt violate 5th Am Constright (but may have a DPclaim)

PataneChavezElstad:miakeSeibert

CompellingTestimony despite 5th

Am SI Privilege

Use and derivativeuse immunity fromcriminalconsequences

your testimony cant be used to

prosecute you in crim trial (use) or as

link in prep of a case against you (deriv

use) but you can still be prosecutedwith indy identification (state has

burden of establishing every piece of

evidence obtained indy fromtestimony-chinese wall); applies in

ANY legal proceeding that may lead to

incrimination = may invoke SIprivilege in civil suits

Kastigar

CompellingProduction ofDocuments despite5th Am Privilege

Admissible only if act

of producing docs doesnot have testimonial

consequences =

functional equivalent ofanswering an

interrogation

Privilege against S-I doesnt protect

compulsion of docs (bc not compelledto create them) but ACT of production

is testimonial if testifies to the

existence, location, ownership andauthentication of docs; if existence &

location was foregone conclusion (ex.

tax records created by accountant), you

do not get immunity;Non-testimonial:

blood/handwriting/lineup/diary

BoydHubbellFisher


12/12