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| What ever process that is defined by the state is the process that is due. |
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Palko v. Connecticut
Duncan v. Louisiana |
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Fundamental fairness is the definition of due process and is implicit in the concept of liberty.
Normative interpretation of due process |
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| Defined the test that weighed the government's interest against the persons |
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| Taking the procedural that are guarnteed under the bill of rights and applying them to the states in the execution of the 14th amendment due process. |
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in all criminal prosecutions the accused shall enjoy the right to the assistance of counsel.
Right attaches at all critical stages. |
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| Right to counsel applies with potential jail time of 6 months or more |
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| any time actually sentenced to jail time, then the accused had the right to counsel |
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| Counsel must have adequate time to prepare |
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| When does the right to counsel attach? |
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Commencement of adversarial proceedings
- doesn't matter if its a critical stage
- the right to a lawyer exists ONLY at a critical stage |
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| Right to counsel at investigative stages? |
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Definition
Line-ups are a critical stage only if the defendant has been indicted, no indictment no attachment
Photo arrays are not considered critical and therefore offer no 6th amendment protection -- could still violate due process |
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| Whenever the right to counsel attaches that counsel must be effective |
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| Requirement for waiving constitutional rights? |
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| Knowingly and intelligently waive the right. |
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Boyd was required to produce documents for the prosecution of himself
Uses a combination of 4th and 5th amendment to find that this was effectively a search and self incrimination. |
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"Mere evidence" rule
2) Government can seize contraband, can seize anything it has a property right in and stuff that belongs to someone else |
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Government can seize property used in the commission of a crime
Instrumentality rule |
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| 5th amendment doesn't protect corporations from self incrimination |
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| Schmerber v. United States |
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Definition
| Court looks at the 4th and 5th amendment separately to determine that a forced blood draw is nota violation |
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| Warden, Maryland Penetentiary v. Hayden |
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Definition
| Fourth amendment protects privacy not property |
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| Established the exclusionary rule - evidence gathered in violation of the 4th amendment is to be excluded at trial |
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| Why use the exclusionary rule? |
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Definition
| Deter police from violating accused rights. |
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| Scope of the 4th amendment |
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Definition
| Only applies to things that are considered a search or seizure |
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| Establishes the Harlan test - bugged a telephone booth was considered a search under the 4th. |
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| Harlan's test for a search |
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Definition
| Person must have a subjective expectation of privacy and that privacy is one society recognizes as a reasonable expectation |
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Definition
Audiotape recording by an informant is not a violation of the 4th as it was voluntarily given - don't expect
Harlan dissents saying do we want to live in a world where we can't tell secrets? |
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Definition
Entry into an open field is not a 4th amendment activity
- no expectation of privacy outdoors
- police can trespass and its still not a 4th amendment
- limited to observational searches
- curtilage is excluded from the doctrine |
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| tactical Manipulation of luggage |
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Definition
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| dogs cannot reveal anything except illicit substances, the needs of society versus the privacy of only those with illicit substances makes this not a search |
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not a 4th amendment relevant activity
- police can search whenever they want |
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Definition
Karo - police use a beeper - 4th amendment violation but not suppressed as absent that evidence would have been able to get a warrant for the beeper
Kyllo - police use thermal imaging
- presumptively unreasonable as the home is a protected area |
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Term
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Definition
Police asked to search luggage on a bus
Bostick test: totality of the circumstances to determine if a reasonable person would feel free to terminate the encounter - Seizure |
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Definition
| Seizure occurs at the termination of the freedom of movement |
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| Seizure occurs when person stops or submits to the authority |
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Definition
| when facts and circumstances lead a person of reasonable caution to believe an offense has or is being committed |
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| 3rd party tips and probable cause |
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Definition
| Totality of the circumstances - reliability of the tipster and corroborating evidence |
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| Requirements of issuing a warrant |
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Definition
| particularity of facts that leads a reasonable person that there exists a fair probability of criminal activity |
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| in the execution of a warrant the police are required to announce their prescence - general standard of reasonableness |
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| police can detain for a reasonable time along with force |
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Exception to the warrant requirement
Exigency itself determines the scope of what the police may do
Police created exigency doesn't necessarily violate 4th as long as they acted reasonably
- Police cannot enter home absent probable cause or a warrant
Gravity of the offense consideration when taking into account exigent circumstances
Protection of persons or property
- police have a reasonable basis for thinking someone in danger they may enter
-- objectively reasonable belief |
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Term
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Definition
Requirements
1. legally in the place they get plain view
2. immediately apparent that the thing they are looking at is evidence of a crime or contraband
Moving something is a search and requires probable cause -- not plain view |
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Definition
| Acevedo determined when police have probable cause to believe that evidence or contraband is in a car, they are allowed to search reduced expectation of privacy in cars search containers inside to the extent probable cause |
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Offense committed in the officer's prescence, doesn't need a warrant
felonies with probable cause do not need a warrant |
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| 4th amendment limits to arrest |
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Definition
Arrests permitted by statute are fine - even if the officer had the opportunity to acquire a warrant
must get arrested in front of magistrate within 48 hours to determine if probable cause was correct |
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| Arrest warrants and homes |
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Definition
Police can enter home with an arrest warrant
- can't be a pretextual search
Cannot enter the home of another individual in search of the accused, must procure a search warrant for that. |
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Definition
Custodial arrest is reasonable if officer has probable cause of a criminal violation
- only protection is state law |
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Definition
| Pretext(officer's motive) for an arrest is irrelevant |
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Definition
Search incident to arrest is limited to the suspect's person and the area within which he could reach for a weapon or evidence
police allowed for a cursory sweep to ensure no one else will attack them! |
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| Search incident with respect to cars |
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Definition
if person is unsecured, they can do a traditional search incident
if secured can search the vehicle when it is reasonable to believe the vehicle contains evidence for the crime for which the person was arrested |
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Definition
Basis of the 4th amendment is reasonableness
Terry stop fills the void between an officer's hunch and probable cause
officer may stop and frisk an individual who they reasonably suspect to be armed and dangerous
- officer must point to specific articulable facts that prove a reasonable suspicion |
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Definition
Must be temporary and last no longer than is required to fulfill the purpose of the stop
Cannot move the suspect for further investigation without probable cause
US v. Sharpe - no brightline rule for reasonableness of a terry stop |
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| 4th amendment reasonableness based on tips |
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Definition
Anonymous tip corrobrated by further evidence can give rise to reasonable suspicion
Behavior must be out of the ordinary
Unprovoked flight can give rise to reasonable suspicion |
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Definition
Schnekelove - consent is determined by the the totality of the circumstances, search is limited by a reasonable interpretation of the consent
If a third party has apparent authority to give consent, then the police can act on said consent |
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Definition
Schnekelove - consent is determined by the the totality of the circumstances, search is limited by a reasonable interpretation of the consent
If a third party has apparent authority to give consent, then the police can act on said consent |
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| Scope of the exclusionary rule |
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Definition
| evidence gathered in violation of the 4th amendment but recovered by an officer acting on good faith reliance is not subject to the exclusionary rule |
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Definition
| To have standing a person must have a privacy interest in the place or item searched or seized |
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Term
| Fruit of the poisonous tree |
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Definition
Illegal 4th amendment searches and seizures can result in exclusion of both direct and indirect evidence.
exceptions would be if the evidence was obtained by a third source or that the fruit was inevitably would have been discovered |
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| 5th amendment protections |
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Definition
Compulsion - including lack of testifying
incrimination - reasonable grounds to bleieve you may incriminate yourself, you can invoke
Being a witness |
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Term
| Police interrogation and the 5th amendment |
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Definition
Miranda - custodial arrests are inheritly coercive, the police notifying you of your rights serves to negate
police are required to respect
to waive you must make a knowingly, intelligently, and voluntary waiver. |
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Term
| Miranda and interrogations |
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Definition
| If the right is invoked police cannot use words or any actions that the police should reasonably know are reasonably likely to illicit an incriminating response |
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Term
| Miranda warning requirements |
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Definition
| doesn't have to be the FBI verbatim, just get the warning across |
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Definition
Once invoked the police cannot ask if you changed your mind
allowed to continue asking if the invocation is unclear |
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Definition
| Defendant must make a clear invocation - the answering of a question is construed as a waiver of Miranda |
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