Term
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Definition
| Incorporation doctrine: "selective incorporation" as a compromise between total incorporation and fundamental fairness. Palko "implicit in the concept of ordered liberties" should be incorporated |
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Term
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Definition
| The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated… |
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Term
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Definition
| Makes 4th amd. search and seizure a "property rights" question, i.e. govt. may not trespass on your land; however, no possessory interest in 1) fruits 2) instrumentalities 3) contraband. Mere evidence rule: officers cannot search for mere evidence of a crime as opposed to 1,2,3. OVERRULED. |
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Term
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Definition
| Rejects 4th/5th amd. property rights analysis under Boyd; 5th amd. applies to testimonial evidence. Replaces Boyd analysis with privacy one: reasonableness determined by PC w/ a warrant or a warrant exception. (dui blood case) |
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Term
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Definition
| Rejects "mere evidence" distinction in Boyd; 4th amd. is about privacy not property: gov’t can search for evidence so long as warrant / warrant exception is satisfied. Better protection of priv. via procedural restraints |
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Term
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Definition
| "What is a 4th Amendment search?" Boyd trespass doctrine overturned; 4th amd. protects people, not places; Harlan's concurrence gives us the test- suspect must have 1) subjective (actual) and 2) objective (reasonable) expectation of privacy. Test has empirical (fact-intensive) and normative components (1) social value in protecting privacy 2) level of intrusion 3) degree to which D attempted to protect interest 4) value in crime control/utility |
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Term
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Definition
| False friend w/ wiretap; assumption of the risk analysis: no expectation of privacy in what you voluntarily tell another person. They could snitch even if they weren’t wearing a wire. |
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Term
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Definition
| No reasonable expectation of privacy w/ false friends and a recorder. |
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Term
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Definition
| No reasonable expectation of privacy w/ a recorder. |
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Term
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Definition
| Physical touching/manipulation of a bag is a 4th amd. search and subject to reasonableness test. Luggage=High REP |
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Term
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Definition
| No reasonable expectation of privacy in “smells.” A drug dog sniffing effects = constitutional; Kyllo=home/Place=pub. |
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Term
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Definition
| No reasonable expectation of privacy in your trash. |
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Term
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Definition
| FedEx employee: officers may replicate a citizen's search; not subject to reasonableness requirement, no expectation of privacy if the "cat is already out of the bag." |
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Term
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Definition
| Test for who is a state actor- ToC- did police 1) advise 2) encourage 3) participate? |
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Term
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Definition
| Plain-touch doctrine; tactile version. |
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Term
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Definition
| Thermal imaging is a search; technology not commonplace, privacy level is highest (home). Binoculars would be ok- common technology. Seeing things not visible to naked eye; all details inside home are intimate. |
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Term
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Definition
| No reasonable expectation of privacy in anything you can see from FAA regulated airspace (lawful, public vantage point) |
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Term
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Definition
| Open fields doctrine; low EoP not on house/curt.; not person/house/paper/effect; utility in war on drugs. |
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Term
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Definition
| Curtilage test: 1) proximity to home 2) existence of enclosure 3) nature/use of area 4) steps taken to exclude others |
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Term
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Definition
| GPS tracking beeper on your car is reasonable, just like a tail on a guy visual search; aid. |
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Term
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Definition
| No reasonable expectation of privacy in smoke plumes from D's "open field" |
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Term
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Definition
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Term
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Definition
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Term
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Definition
| Auto passenger: no REP in another's car. SEE STANDING; Dsnt: invited = REP, bad pol. incentives (Ill. pullover; no stand) (5-4). |
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Term
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Definition
| What is a 4th Amendment property seizure? Substantial interference with a possessory interest. |
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Term
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Definition
| What is a 4th Amendment person seizure? Application/threat/appearnce of force so that a RPP would not feel free to leave; mere questioning does not equal a seizure; ToC test |
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Term
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Definition
| Force must be intentional; no "bumping into" someone |
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Term
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Definition
| Seizures in enclosed spaces; in this case, other factors (bus leaving) made him not feel free to leave; instead, test is does objective reasonable person feel they can terminate the police encounter? ToC test |
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Term
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Definition
| Failure to tell someone they have a right to refuse doesn't matter too hard in ToC test; Police = uniforms and guns anyway. |
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Term
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Definition
| A person is NOT seized when being pursued; only when physically caught, or submissive to show of authority. |
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Term
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Definition
| At a traffic stop driver as well as passenger have both been "seized". |
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Term
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Definition
| Police force must be proportionate; for deadly force, 1) police must believe suspect poses a risk to safety of self or others 2) use of deadly force will effectuate and is necessary |
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Term
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Definition
| High speed chase force ok (special rule); danger to others…….do other things get special rules now? (flash bangs..etc) |
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Term
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Definition
| An arrest is always a seizure; even non-deadly force must be proportionate |
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Term
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Definition
| 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. |
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Term
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Definition
| Established the federal Exclusionary rule; evidence obtained illegally shall not be permissibly used at trial. Judicial integrity says it’s a must; 4th/5th amd. intimacy; need an effective remedy to protect these rights |
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Term
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Definition
| Wolf v CO.-pseudo incorp.; applied the Exclusionary rule to the states via the 14th Amendment. Why? Judicial Integrity; DETERRANCE; close loopholes; inadequate alternatives…..5th amd. is basically an exclusionary rule by analogy/pub. Policy good. |
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Term
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Definition
| Says ER is judge made prophylactic rule (DETERANCE); ER is between a right and SC supervisory rule making it a const. rule; it’s a rule rather than a right but has const. status making it apply to the states. Can make tons of exceptions b/c not a right. |
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Term
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Definition
| Probable cause to arrest: reasonable officer has facts that lead him to believe that an offense is or has been committed. |
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Term
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Definition
| Probable cause to search: reasonable officer has facts that lead him to believe that an item subject to seizure will be found in the place to be searched. |
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Term
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Definition
| Two pronged test for determining if informant tips are sufficient for probable cause: 1) veracity- reliability, credibility 2) basis of knowledge- self-verifying details. OVERRULED. |
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Term
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Definition
| Overrules Aguillar/Spinelli; for ToC test taking into account the prongs, plus other factors; policy rationale- deference to magistrate, common sense determination, corroborated tip?, basis of knowledge? |
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Term
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Definition
| Pretext is irrelevant; cops pull over for one offense, PC for another develops while pulled over, OK; don’t care about officers subjective motive as long as there is PCfor some crime. |
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Term
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Definition
| Magistrate's PC determination gets great deference: not reviewed de novo on appeal. Want to encourage officers to get warrants. |
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Term
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Definition
| Officer's determination is reviewed de novo on appeal; lower when done by magistrate, higher when officer |
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Term
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Definition
| If no judicial PC determination before, must get it after (Gerstein) within 48 hours (McLaughlin). |
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Term
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Definition
| Warrant preference: magistrates are detached and neutral, not in the competitive enterprise of ferreting out crime. |
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Term
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Definition
| Cannot be a member of the executive branch. |
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Term
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Definition
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Term
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Definition
| "Oath or affirmation": if an officer falsifies an affidavit, the warrant is invalid. |
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Term
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Definition
| Warrants must be reasonably particular; no general search warrant. |
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Term
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Definition
| Publicly executed arrests for felonies and misdemeanors committed in officer's presence w/o warrant is ok. |
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Term
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Definition
| "Threshold of door" is a public place- if police witness crime, then you dart in your house, they can come after you: "hot pursuit" exigency; no Payton requirement. |
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Term
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Definition
| Watson carries over to traffic stops; FULL CUSTODIAL ARRESTS (even for fine-only offenses) OK as long as PC. |
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Term
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Definition
| FCA is ok even if state statute says its not; if violates 4th then ER--here remedy was sue officer for false arrest--ER is what SC wants to be remedy. |
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Term
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Definition
| Must have arrest warrant and PC that they are in the residence to make felony arrest in residence; require AW to protect privacy int. in the home, providing search protection w/ a seizure warrant. |
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Term
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Definition
| To arrest in 3rd party’s home, need SW; protecting privacy of 3rd party. |
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Term
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Definition
| Knock and announce rule must be followed in execution of a search warrant. |
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Term
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Definition
| No knock and announce if reasonable suspicion of exigency/danger. |
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Term
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Definition
| If no answer after knock + 20 sec. you can bust in. |
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Term
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Definition
| Police only have to be reasonable in warrant execution. If they fuck up it’s not a violation as long as it’s a RPP fuck up. |
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Term
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Definition
| Warrant execution is preferred to be carried out in the daytime. Not a constitutional requirement. |
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Term
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Definition
| Unreasonable destruction of property while serving warrant is impermissible; don’t kick my door in. But no ER, just compensation. |
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Term
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Definition
| Officers may detain a suspect while executing a search warrant (SW gives privacy of person). Particular places; reverse of Peyton. |
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Term
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Definition
| While executing search warrant on business, officers may not search all patrons; need individual suspicion for each person. OK to name a person in SW. |
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Term
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Definition
| Occupants need not be on site to execute a search warrant. |
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Term
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Definition
| No requirement to leave a copy of the warrant/items to be seized if they aren't there. |
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Term
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Definition
| 1) destruction of evidence 2) hot pursuit 3) preventing flight 4) protecting public safety; all = Warrant exception. |
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Term
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Definition
| Officers may not create their own exigency. If you could’ve gotten a warrant and didn’t = ER. |
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Term
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Definition
| Police may enter to break up a fight (protecting public safety); RS required. |
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Term
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Definition
| Officers may temp. seize a house and make you wait outside while they obtain a warrant; destruction of evidence concerns. |
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Term
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Definition
| DUI walk home. No exigency b/c minor offense and no danger b/c no car and at home, need a warrant to go in. Homes get highest protection. |
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Term
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Definition
| Plain-view doctrine of warrant exception; need 1) lawful vantage point 2) right of access 3) must be immediately apparent that item is subject to seizure b/c of its association with crime . |
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Term
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Definition
| Automobile warrant exception. Still need PC, but warrant exception based on recurring exigency: 1) inherently mobile 2) diminished REP 3) highly regulated. |
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Term
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Definition
| Test for automobile: 1) appearance of ready mobility 2) use as a vehicle or home 3) curtilage; POLICY- not a repository for things, reduced REP in vehicle still, vehicles driving = highly regulated. |
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Term
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Definition
| PC to search a car doesn’t provide cause to fully search passengers clothing they are wearing. Loopholes: Terry, SIA, FCA. |
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Term
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Definition
| Common enterprise: PC to arrest any/all passengers and driver for drugs found in back seat. |
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Term
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Definition
| SIA is ok w/o warrant. Limited to area in immediate control of suspect: 1) temporal (time) "reasonably contemporaneous" and 2) spatial (area): grabbing area, wingspan, person. Rationale: police protection, prevent destruction of evidence. |
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Term
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Definition
| Chimel extends to automobiles in traffic stops. |
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Term
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Definition
| If valid arrest, and recent occupant of vehicle, police may search passenger compartment (but not trunk) incident to arrest. OVERRULED by Gant. |
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Term
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Definition
| Police wait till suspect is out of car, then arrest, still valid per Belton; Scalia: let's be honest, Belton is fiction--Rabinowitz should govern (officer has RS to believe evidence of crime in car then he can search for evidence to make the arrest). OVERRULED by Gant. |
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Term
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Definition
| Can search the entire passenger compartment if: (1) unsecured arrestee could gain access or (2) reasonable belief that evidence related to the crime or offense may be found in the car; litigating reaching distance. Still need PC: Chambers governs. |
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Term
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Definition
| No search incident to traffic citation (if arrestable offense, hard to square with an Atwater, Belton/Robinson interplay). |
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Term
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Definition
| Following arrest, officers may conduct a protective sweep of adjoining areas to search for third parties that could be a danger to the officers (obviously not containers). RS that someone may be hiding elsewhere in house |
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Term
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Definition
| Inventory searches are constitutional. Policy rationales: 1) false claims of property loss, 2) police safety, 3) protect property, 4) need to ID person. Must have 1) good faith, 2) limited discretion, 3) SOP, 4) incarceration. People: Lafayette, Vehicles: Opperman. |
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Term
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Definition
| Inventory search done on arrest premises is OK, even containers (per Wells). |
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Term
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Definition
| No warrant exception for containers- need a warrant. 1) heightened level of privacy, 2) purpose is storing effects, not transportation. |
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Term
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Definition
| D puts suitcase in car; officers had PC for of drugs in the case, no warrant. Chadwick governs- need a warrant b/c PC was particularized to container, not car. OVERRULED. |
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Term
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Definition
| Officers w/ particularized PC about drugs in an automobile, search bag in the car, find drugs. Chambers governs, thus OK. Particularized PC was in car, not container. |
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Term
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Definition
| Sanders (PC for container only) situation governed by Chambers (vehicle exception), not Chadwick (container w/o vehicle). Particularized PC irrelevant: same exigency rationales apply to a container in a car as the car itself. PC for container inside car. Harlan: exigency+seize car+SW; Scalia: fuck a SW, PC exists, search and seize away. |
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Term
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Definition
| Owner of container irrelevant: if PC, they can search anyone's containers in the car unless on person (jackets, etc). |
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Term
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Definition
| Sobriety checkpoints ok; must have 1) SOP 2) balance level of intrusion w/ state interests. |
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Term
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Definition
| No roving roadblocks: much higher level of intrusion than Sitz (DUI checkpoints) where motorists are put on notice. |
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Term
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Definition
| Road blocks for generalized crime fighting unconstitutional. |
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Term
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Definition
| Hit and run checkpoint ok: exigency. Particularized crime fighting, not general as in Edmond. |
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Term
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Definition
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Term
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Definition
| Special needs search: school agents simply need 1) reasonable suspicion at time search undertaken, and 2) search is limited in scope. |
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Term
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Definition
| Random drug testing for athletes, after school programs ok. |
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Term
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Definition
| Customs agents drug testing ok. |
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Term
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Definition
| Railway workers involved in accident drug testing ok. |
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Term
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Definition
| Drug testing for those seeking public office NOT ok. |
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Term
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Definition
| Search of a govt. office ok on RS of work related misconduct. |
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Term
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Definition
| Consent searches are reasonable when voluntary. ToC Test; cannot be the product of coercion or submission to authority. |
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Term
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Definition
| Acquiescence does not equal consent. |
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Term
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Definition
| No requirement of "you are free to go" per se rule needed. Consent searches during or w/in r’able amount of time after traffic stop are ok. |
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Term
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Definition
| Scope of consent search: "would officer reasonably believe D consented to search of ____?" |
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Term
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Definition
| Roommate consents while other isn't there, search ok. Assumption of the risk analysis. |
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Term
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Definition
| Wife consents to search, husband is present and says no. Have to get a warrant. Analysis of social expectations. Dissent: "societal expectations"? WTF? Domestic violence issue (5-4). |
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Term
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Definition
| Standing to give consent: based on apparent authority. "Police must reasonably believe that the person had the authority to consent." |
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Term
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Definition
| Stop and frisk that does not rise to the level of a full custodial arrest, but is a search and seizure anyway. Creates the reasonable suspicion standard. Officer may stop and frisk for weapons if there are specific and articulable facts that lead the officer to believe crime is afoot and the suspect is armed and dangerous. |
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Term
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Definition
| Past crimes (felonies only?) are susceptible to Terry doctrine. |
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Term
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Definition
| RS is a ToC test. Fleeing in high crime area is not totally conclusive about wrongdoing but certainly indicative of such. |
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Term
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Definition
| Nervous, false name, false name on luggage, traveling under alias = RS. |
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Term
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Definition
| Conceal traveling together/early in morning: too broad a category might subject too many to random seizure - no RS. |
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Term
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Definition
| Distinguishes Terry from full custodial arrest based on duration- "detained a reasonable amount of time?" |
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Term
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Definition
| Distinguishes Terry from full custodial arrest based on spatial dimension, hauling them to interrogation room, for instance. |
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Term
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Definition
| Basically Terry with a car. Officers are allowed to search automobile for weapons if they have RS suspect is armed and dangerous and could gain access. |
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Term
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Definition
| If officer has RS passenger is armed & dangerous as well, may frisk passenger. |
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Term
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Definition
| Officers may demand identification during the course of a Terry stop if state law says refusal is arrestable. |
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Term
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Definition
| Mimms: traffic stops can be Terry stops: may order driver out of car. Wilson: same applies to passengers. Need RS that driver/passengers are armed and dangerous. |
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Term
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Definition
| Drug dogs ok for traffic stops. Can’t unreasonably extend stop. No case yet for Terry stops. |
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Term
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Definition
| Plain-touch doctrine, tactile version. Can seize contraband if found when frisking for a weapon. If officer determines it’s not a weapon, can’t keep searching. Have to say “found out wasn’t a weapon at exact time I found out it was contraband.” |
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Term
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Definition
| Tips in a Terry context. Example of the bottom level of reliability to give rise to reasonable suspicion. |
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Term
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Definition
| Kid in plaid shirt at bus stop has gun. Crosses the line, all innocent details any member of the public could have given. |
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Term
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Definition
| Turns 4th amd. rights analysis from a standing/agency/"legitimately on premises" test into a Katz legitimate expectation of privacy one (REP). 4th amd. rights are personal rights. |
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Term
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Definition
| Standing? Must have privacy interest to contest a search (Katz) must have possessory interest to contest seizure (Jacobson). |
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Term
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Definition
| Overnight guests = REP--> standing. |
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Term
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Definition
| Social guests = No REP--> no standing. |
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Term
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Definition
| Fruit of the poisonous tree doctrine introduced. Primary and derivative evidence excluded. |
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Term
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Definition
| independent source doctrine (exception to the FoPT based on but for causation). Policy rationale: prosecutors, investigators should be put in no worse/better position than before violation. Must show 1) info from illegal source did not aid in PC determination and 2) motivation for search 2 did not come from search 1. |
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Term
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Definition
| Inevitable discovery doctrine (but for exception). Police must show(preponderance) that evidence would have been obtained by an independent line of investigation anyway, then the illegal method is irrelevant. AKA hypothetical independent source. |
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Term
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Definition
| Attenuation of the taint (proximate cause exception). Totality test looks at 1) remoteness in time b/w evidence and illegality 2) remoteness in chain of events 3) acts of free will (Wong Sun guy returning after 1st interrogation) 4) flagrancy of rights violation. |
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Term
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Definition
| Testimonial evidence attenuates much faster than physical evidence. Witnesses can come forward on their own, physical evidence can’t. |
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Term
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Definition
| New attenuation doctrine (policy attenuation) on type of violation, not remoteness. Protection guarded by original interest violated should reasonably match up. Here it was K&A rule protects 'robe on privacy' / safety so evidence ok. Dsnt: kills K&A rule (5-4). |
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Term
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Definition
| No right to destroy evidence; if that is the sole reason, attenuation is automatic. |
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Term
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Definition
| Good-Faith exception: if a warrant is found to be invalid after served and relied upon in good faith, then the evidence is ok. NOT valid if 1) magistrate = rubber stamp 2) false info in affidavit 3) bare bones 4) lacks particularity. |
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Term
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Definition
| Good faith applies to legislatures. |
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Term
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Definition
| Good faith applies to judicial clerks. |
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Term
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Definition
| Good faith exception for electronic filing errors by police. |
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Term
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Definition
| Impeachment exception: 1) ok if statement is on direct 2) only used collaterally (other crimes) 3) only for D, not D's witnesses |
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Term
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Definition
| Walder #1: cross OK so long as it is w/in scope of direct; Direct: no, don’t engage in activity; cross: oh act like t-shirt cutting? |
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Term
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Definition
| Walder #2: jury instruction, then tainted evidence can be used to impeach testimony for actual crime D is on trial for! |
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Term
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Definition
| Leaves Walder #3 intact. Limits exception to the D and not other witnesses. |
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Term
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Definition
| …nor shall be compelled in any criminal case to be a witness against himself… |
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Term
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Definition
| Confessions must be voluntary (ToC test); becomes one of three Zerbst prongs post-Miranda. OVERRULED. |
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Term
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Definition
| Crazy guy confesses. Voluntariness is based on gov’t actions (overbearing), not D's (subjective D though). |
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Term
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Definition
| Voluntariness is sub-constitutional, if it is violated, you get it excluded. No right to be free from interrogations. |
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Term
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Definition
| Interrogations don’t violate constitution unless it "shocks the conscience", then you get a 1983 suit. |
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Term
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Definition
| Triggered by custody and interrogation --> creates a coercive environment. CE dispelled by four Miranda warnings, then must get a valid waiver. Takes the Ashcraft test and morphs it into a threshold issue: if Miranda is complied with, generally good to go. If not, confession presumed involuntary. |
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Term
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Definition
| Tucker makes Miranda a prophylactic rule, Dickerson turns it into a constitutional rule. |
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Term
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Definition
| What is custody, for Miranda purposes? Full custodial arrest, not Terry stops. |
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Term
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Definition
| What is interrogation for Miranda purposes? Express questioning, or its functional equivalent: "a statement likely to elicit a response from a suspect." Reasonable officer standard. |
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Term
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Definition
| No Miranda warnings needed if atmosphere isn't coercive. Prison co-inmates, one is an undercover cop. |
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Term
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Definition
| Statements given in exchange for protection in prison setting is coercive --> need Miranda warnings (child killer in jail case). |
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Term
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Definition
| Being in prison alone does NOT constitute custody under for Miranda purposes. |
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Term
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Definition
| Miranda warnings don't have to be precise, must reasonably convey the rights of the original four warnings. |
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Term
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Definition
| "You can have an attorney, just not now" ok, no requirement to have station house attorney around. |
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Term
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Definition
| Miranda waiver test: must be voluntary, knowing, and intelligent. |
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Term
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Definition
| No requirement to apprise suspect of scope of oncoming questioning. |
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Term
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Definition
| Zerbst waiver must be proven by preponderance of evidence. |
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Term
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Definition
| Express waivers are best, implied ones are ok in certain circumstances. OVERRULED. |
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Term
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Definition
| OVERRULES Butler. Miranda waiver doesn’t have to be express, it can be implied. 1) MW 2)understood? 3)course of conduct, answering questions here. |
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Term
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Definition
| Police need not give helpful information to attorney or suspect. E.g. that family had hired attorney for suspect. |
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Term
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Definition
| Right to silence invocation: "scrupulously honored" test, even higher standard than Zerbst if they come back in and re-interrogate after invocation. Different: time, place, officers, subjects? |
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Term
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Definition
| Once right to counsel has been invoked, questioning must cease until counsel is present. “Cry for help.” |
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Term
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Definition
| Edwards rule lasts 14 days after release from custody. |
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Term
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Definition
| Edwards means counsel must be PRESENT, not conferred with counsel, then we may resume questioning w/o counsel. |
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Term
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Definition
| Invocation for counsel must be unambiguous. If ambiguous, police may continue. |
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Term
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Definition
| Right to counsel is not offense specific. It applies to any and all offenses. |
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Term
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Definition
| If suspect re-initiates contact, ok. Initiation can be ambiguous so long as it evinces a desire for a more generalized discussion about the investigation. Interpreted pro-police. |
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Term
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Definition
| Miranda impeachment exception. |
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Term
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Definition
| Miranda public safety exception. |
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Term
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Definition
| No fruit of poisonous tree exclusion for Miranda. |
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Term
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Definition
| Testimonial evidence in; no Miranda FoPT. |
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Term
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Definition
| Physical evidence in too; no Miranda FoPT. |
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Term
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Definition
| Limits Elstadt. Police tactic of ask, Mirandize, ask again is really one interrogation setting, perverts Elstadt exception. |
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Term
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| …and to have the assistance of Counsel for his defense. |
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| 6th amd. right to counsel kicks in at commencement of judicial proceedings. Policy becomes not dispelling of coercive atmosphere, but protection of adversarial nature of CJ system. |
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| Deliberate elicitation of information constitutes an interrogation under the 6th amd. |
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| Deliberate w/in meaning of Massiah = likely to induce a response. |
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| Miranda warnings appropriate for 6th Amendment waiver. Zerbst (voluntary, knowing, and intelligent) & inform that lawyer has been retained if that is the case. |
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| 6th amd. version of Edwards (no questioning w/o counsel once invoked in Miranda context). Once right to counsel asserted questioning must cease till counsel present. OVERRULED by Montejo. |
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| OVERRULES Jackson. Voluntariness requirement for waiver analysis w/ 6th; no version of Edwards. If in custody, then you have Edwards anyway. |
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| 6th amd. rights are "charged crime" specific. Blockburger doctrine: if two crimes have same facts and elements, then they are the same crime for a Cobb analysis. |
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| When asserting right to counsel look at context. Here being arraigned in front of a judge, not interrogated = 6th amd NOT Miranda invocation; Miranda (broader right to counsel) vs. 6th amd. (narrower right to counsel). |
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| Makes 6th RtC an interrogation practice rule: how/when police can interrogate. Ex.: interrogation in Massiah was wrong so 1983 suit. Also creates an impeachment exception for 6th. |
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