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Criminal Procedure
Criminal Procedure
27
Law
Graduate
04/29/2012

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Term
Inevitable discovery
Definition
If police gathered evidence from misconduct, but it would have been discovered anyway, the evidence is allowed in
Term
Independent source doctrine
Definition
evidence not excluded from constitutional violations if discovered from an independent, constitutional source
Term
Test for informant validity
Definition
1. Credibility

2. Reliability

3. The Totality of the circumstances
Term
Credibility prong of informant test
Definition
Is he likely to be telling the truth?

A. Whether the tip is against his interest
B. Whether the informant has given prior, accurate tips
3. Whether the informant has a reputation for truthfulness?
Term
Reliability prong of informant credibility
Definition
A. Whether he the informant personally observed or participated
B. Whether the tip was so detailed that informant must have first hand knowledge
C. Whether the nature of the info in the tip could indicate it could have only come from personal knowledge
Term
Warrant requirements
Definition
1. Supported by probable cause
2. Supported by Affidavit
3. Describe with particularity the places to be searched and things to be seized
4. Issued by a neutral and detached magistrate
Term
Good Faith Exception does not apply when
Definition
1. Judge not neutral and detrached
2. Warrant so lacking in PC
3. Affiant upplies false info or acts in reckless disregard for the truth,
4. Warrant is facially deficient as to particularity requirement
Term
Mistake in executing a warrant (Good Faith?)
Definition
An objectively reasonable mistake in a warrant does not invalidate it
Term
Exceptions to the warrant requirement
Definition
1. Search incident to arrest
2. Protective sweeps
3. Exigent circumstances
4. Automobile Exception
5. Special needs
6. Consent.
Term
Protective sweep
Definition
When the police make an arrest in a home, if they have a reasonable belief that they are in danger (that there may be "confederates lurking"), then police may look anywhere a person could be hiding who wishes to do them harm.
Term
Standing
Definition
1. Must have a reasonable expectation of privacy in the place searched or the items seized

2. A person aggrieved by an illegal search/seizure must establish
1)Standing
2) Search was by a government actor
Term
Reasonable suspicion (*Informant tip)
Definition
Look to the totality of the circumstances to see if he has a particularized and objective basis for suspecting wrong doing.

*A predictive informant tip gives reasonable suspicion enough for a stop
Term
Requirements for a vehicle risk, and scope
Definition
1. Reasonable suspicion to stop the car
2. Reasonable belief that the suspect is armed and dangerous.

Scope: Only where occupants have access
Term
Automobile Exception to the warrant requirement
Definition
If probable cause exists, police can search any area where they believe evidence of criminal activity would be found

*The same particularity applies that would be for a warrant
Term
Scope of a vehicle frisk
Definition
The search of a passenger compartment of an automobile is limited to those areas where a weapon may be placed or hidden.
Term
Plain feel
Definition
It must be immediately apparent that the item is contraband during a frisk.
Term
Gant rule of Search Incident to Arrest
Definition
The arrestee must have access to the area at the time of the search, or there must be a reasonable belief that evidence of the crime of arrest will be found in the vehicle
Term
Seizure
Definition
When a government actor significantly interferes with a person's freedom of movement, and a reasonable person wouldn't feel free to leave or otherwise terminate the encounter
Term
5th Amendment Due Process Clause (Eyewitness ID, Out of Court)
Definition
Under the totality of the circumstances,
1. Unnecessarily
2. Suggestive
3. To give a substantial likelihood
of misidentification
Term
When does the 6th Amendment Right To Counsel Attach?
Definition
After the first adversarial proceeding
Term
Coercion and the 5th amendment due process clause
Definition
DPC protects against involuntary statements (Statements that were coerced); involuntary statements are excluded from trial.

1. Did police subject defendant to coercion
2. WAs the coercion sufficient to overcome the suspects will
Term
5th Amendment Self incrimination clause requires
Definition
1. Custody
2. Interrogation
3. Advice of rights
4. Knowing, voluntary, intelligent waiver
Term
Custody
Definition
A significant restraint of the freedom of movement. Objective ("Would a reasonable person believe there was a significant restraint on a freedom of movement"
Term
6th Amendment Right to Counsel
Definition
1. RTC attaches after formal proceedings have been filed against defendant
2. Applies only to critical stages
3. Waiver must be knowing voluntary and intelligent
4. Statements given in violation 6th may not be used in case in chief, but can be used to impeach the defendant
Term
5th Amendment Due Process Clause (Eyewitness ID InC) ****
Definition
Not available if
1. Unnecessary
2. Suggestive
3. substantial likelihood of irreparable mis-id
Term
6th Amendment Right to Counsel (Line-up)
Definition
A line-up is a critical stage according to U.S. v. Wade because the evidence gathered is difficult to rebut at trial, and there's grave potential for injustice.
Term
Factors that determine if a 6th amendment ID can be used in court
Definition
1. The prior opportunity to observe the act
2. The existence of any discrepancy between any pre-line up description and the defendant's actual description
3. Any identification prior to line up
4. Any ID by picture of the defendant of prior to the line up
5. Failure to ID defendant on any prior occasion
6. The lapse of time between the alleged act and the line up ID
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