Shared Flashcard Set


Con Crim Pro
Barbri Final Exam Prep, Fall 2009

Additional Law Flashcards




Exclusionary Rule

- Remedy of American Constitutional Procedure.


- Someone whos is the victim of an illegal search or a coerced confession can have, among other remedies, the product of that that illegal search or coerced confession excluded from any subsequent criminal prosecution.

Limitations on Exclusion

1. Exclusion does not apply to grand jury proceedings.

- A grand jury witness may be compelled to testify based on illegally seized evidence

2. Exclusion is not an available remedy in civil proceedings.

3. In order to qualify for exclusion, the search in question must either violate the Federal Const. or a Federal Statute

4. Exclusion is not an available remedy in parole revocation proceedings.

5. The use of excluded evidence for impeachment purposes since 1980 all illegally seized real or physical evidence may be admitted to impeach the credibility of the defendant's trial testimony.

- Note - ONLY the D's trial testimony may be impeached, not the testimony of other witnesses

6. Not an available remedy for violations of the knock and announce rule in the execution of search warrants if the police officer reasonably believed that knocking and announcing would be futile, dangerous, or inhibit the investigation (destruction of evidence).


Fruit of the Poisonous Tree Doctrine

(expands exclusion)


- We'll exclude all evidence obtained or derived from exploitation of a police illegality.


- 3 ways gov't can break the chain between original unlawful police action and some supposedly derived piece of evidence (3 I's of breaking the chain):

1. Independent source of that evidence: independent of that original police illegality.

2. Inevitable discovery: police would inevitably discovered this evidence anyway.

3. Intervening acts of free will on the part of the D.


4th Amendment

- Arrest requires probable cause.

- Police may arrest w/o a warrant for a felony any time they have reasonable grounds to believe a felony was committed and this person did it.

- Police may arrest w/o a warrant for a misdemeanor committed in their presence.

- Arrest warrants generally not required to arrest someone in a public place.

- A non-emergency arrest of individual in his home DOES require an arrest warrant.

- A station house detention DOES require probable cause.


Search and Seizure


5 Step process to answering a search and seizure essay question.


1. Does the person have 4th amend. right?

Requirements and steps:

1. Was there was gov't action?

- Police on or off duty are gov't actors.

- Any private individual acting at the direction of the police is gov't action.

- Private police (campus, security guards) do not consitute gov't conduct, unless they are deputized with the power to arrest you. (campus police almost always are deputized)

2. Is there a reasonable expectation of privacy?

- If you don't have it, then you don't standing to object to illegality of search.

3. Did the police have a valid search warrant?

- Probable cause (a fair probability that contraband or evidence of a crime will be found in the area searched) and particularity (warrant must state with particularity the place to be searched and the things to be seized).

Police can rely on hearsay the probable cause they need to get a search warrant.  Can have warrant based on part by anonymous informant.  There is a very strong minority rule that many states will not follow Illinois v. Gates.  More states follow Aguilar, 2 prong: Affidavit based in part on informants tip must: 1. Set forth sufficient underlying facts and circumstances to allow the magistrate to know how the informer got this info. 2. Police must vouch for reliability and credibility of that informant.


If warrant is no good, go to step 4 to see if evidence can be saved in some other warrant:


4. Does the officers good faith reliance save the defective search warrant?

- General rule: Officer's good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements.

4 exceptions to good faith reliance on defective search warrant:

1. Affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it.

2. Affidavit underlying the warrant is so lacking in particularity that no reasonable police officer would have relied on it.

3. The police officer or prosecutor lied to or mislead the magistrate in seeking the warrant.

4. If the magistrate is biased. (If magistrate is paid per issuance of every warrant.)


Step 5. If warrant is in valid and cannot be saved by good faith defense or police never had a warrant: 6 excceptions to warrant requirement:

1. Search incident to arrest.

2. Automobile exception.

3. Plain view.

4. Consent.

5. Stop and frisk.

6. Hot pursuit/evanescent evidence.


You have Automatic standing:

1. If you own the premise searched.

2. If you live on the premise searched, whether or nor you have ownership interest.

3. Overnight guests


Sometimes have standing:

1. You own the property seized, you have standing only if you have a reasonable expectation of privacy in the item or area searched.

2. If you are a passenger in a car; passengers in cars who don't claim they own the car or the property taken out of the car do not have standing to object to the search of the car.


No standing, no expectation of privacy:

1. The sound of your voice.

2. The style of your handwriting.

3. The paint on the outside of your car.

4. Account records held by a bank.

5. Monitoring the location of your car on a public street or even in your drive way.

6. Anything that can be seen across the 'open fields'.

7. Anything that can be seen by flying over the public air space.

8. The odors eminating from one's luggage.

9. Your garbage set on the curb for collection.



Search incident to lawful arrest

1. Arrest must be lawful.  (If arrest is unlawful, then search is unlawful).


2. The arrest and search must be contemporaneous in time and place. (Ex. D is lawfully arrested in LA @ noon, he is later searched in San Diego @ 5pm, this is not contemporaneous in time and place).


3. Georgraphic scope limitation.

- What can be searched?  The person and areas in which the person can reach and procure a weapon or destroy evidence. Kind of like the person's wing span.

Note: D taken out of car and arrested there is no search incident to arrest unless it reasonable that D could gain access to the car and procure a weapon or destroy evidence.  Once these 2 concerns are no longer valid there is no search incident to arrest (Ex. D handcuffed and locked in the back of police car, no search incident to arrest - this was Gant case, did not overrule Belton, but greatly limited)

Automoblie Exception

Very limited amount of cases will actually fit here.


- Police must have probable cause to search anything or anybody and fall under automobile exception. (Standard same they would need to get a warrant)


- If, and only if, before searching anything or anybody the police have probable cause they may search the ENTIRE vehicle, including interior compartment, trunk, package, luggage or other container which could reasonably cause the item they had probable cause to look for whether that container is owned by the passenger or the driver.

Plain View
- The key to good/valid plain view is that officer must be legitimately present when the viewing of the item takes place.

- For consent to be valid, consent must be voluntary and intelligent.


- Police saying they have a warrant negates consent.


- Police do not have to warn you to your right not to consent.


- 3rd party consent? 3rd party consent primarily deals with who has the authority to consent to a particular search.  General rule: when 2 or more people have an equal right to use a piece of property either can consent to its warrantless search.  However, if both people are present and one person consents and one does not, then the one who does not consent controls.


Stop and Frisk


(Terry stop)


- A Terry stop is a brief detention for the purpose of investigating suspicious conduct.


- Legal standard for stopping is "reasonable suspicion" (reasonable suspicion is less than probable cause).


- Terry frisk is a pat down of out clothing and body to check for weapons.


- Terry frisk is justified by concern for officer safety.

Hot Pursuit/Evanescent Evidence

Evanescent Evidence: evidence that might disappear if the police took the time to get a warrant. (can scrape under a suspects finger nails w/o getting a warrant, b/c suspect might wash hands while getting warrant.


Hot Pursuit of a fleeing felon:

- If police are not within in 15min. of fleeing felon than it will not fall within hot pursuit exception.


- They can enter into anyone's home while pursuing a felon and any evidence in plain veiw in that home is admissable.


Wire Tapping & Eaves dropping

- All wire tapping and eaves dropping requires a warrant.


- Big exception is known as the "unreliable ear", no warrant necessary: Everyone in society assumes the risk that the person to whom you are speaking may have given consent police to wire them or listen to them.

Confessions & Miranda

- The trigger for required Miranda warnings: Custodial interrogation

1. Custody: is defendant in custody? if not, then no M. warning required.

- You are in custody if at the time of the interrogation you do not feel free to leave.  This is an objective standard.  (Probation and routine traffic stops are NOT custodial, so police can ask you questions with out M. warnings and it can be used against you.)


2. Interrogation: under the 5th amend. interrogation is defined as "any conduct where the police knew or should have known that they might elicit an incriminating resposne from the suspect."

- Interrogation is more than just asking questions.

Waiver of M. Rights

Must be voluntary and intelligent.


A suspect can waive M. rights w/o formally signing the waiver.  If you say, "I waive my rights", that is good enough.


Shoulder shrugging does not waive M. rights.


5th Amendment Right to Counsel




- Once the D. asserts his right to terminate the interrogation and requests an atty, re-initiation of the interrogation w/o his atty present violates 5th amend. right to counsel.


- When a suspect upon hearing the M. warnings says "he wants a lawyer", the S. Ct. has interpreted this to mean that suspect needs an atty for help with the process of custodial interrogation.  Therefore, police may not re-initiate on any topic.


- 5th amend. right to counsel is NOT offense specific.

(All other times you getting a lawyer invokes your 6th amend. right, and 6th amend right is offense specific.)

6th amendment right to counsel
6th amendment right to counsel is offense specific.
Pre-trial Identification

2 substantive basis on which you can attack a pre-trial ID technique:


1. The denial of the right to counsel at the ID.

POST charge line ups and show ups both give rise to the right to counsel.

- No right to counsel when they go to show victim or witness photographs


2. The denial of due process.

Some techniques are so unnessecarily suggestive they deny due process of law. (Ex. Suspect is white, and your client is only white suspect in line up)

- Remedy of denial of pretrial due process is to exclude in court ID. (Note: the denial to the right to counsel or denial of due process will not automatically get the remedy of excluding in court ID.  State can defeat suspect's claim for that remedy that there was an adequate independent source of that bad line up.  i.e. we're not remembering from the pre-trial line up, we are remembering from the time crime was committed b/c there was ample time to do so.)

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