definition of seizure of individual for 4th amdt purposes
reasonable person feels not free to leave/refuse to answer (totality of circumstances)
factors suggesting 4th amdt seizure of person
police brandish weapon; police tone/demeanor as to the specific person; police failure to tell person can refuse to answer/leave
effect of police pursuit on 4th amdt seizure of person
pursued person is seized if stops/submits or police catch & restrain
4th amdt seizure of persons in traffic stop
all passengers are seized
4th amdt reasonable expectation of privacy: examples of what is protected
person, house (incl hotel room) + curtilage, papers, effects (incl bags)
4th amdt reasonable expectation of privacy: examples of what is unprotected
paint scraping from car, acct records bank holds, air space, garbage @ curb, voice (incl eavesdropped, speak w/wired person...), odors, handwriting, open fields (i.e. land beyond curtilage)
4th amdt search/seizure standing: who always has it
owner or resident of premises incl overnight guest as to areas to which he would be expected to have access
4th amdt search/seizure standing: who never has it
mere business invitee
4th amdt search/seizure: when owner of thing seized has standing
reasonable expectation of privacy in the area from which thing seized (e.g., ≠ D's girlfriend's purse)
evidentiary effect of admitting ownership of seized thing at preliminary hearing to challenge seizure
nil; can still deny ownership at trial
4th amdt search/seizure: when car passenger has standing as to thing searched/seized
reasonable expectation of privacy in specific searched/seized item (e.g., bag)
two ways a 4th amdt search/seizure can be constitutional
warrant; exception to warrant requirement
two ways a warrant can render a 4th amdt search/seizure constitutional
warrant facially valid; warrant defective but saved by police good faith
warrant/affidavit for 4th amdt search/seizure is facially valid if states:
(1) probable cause (more likely than not) of finding contraband/evidence (can be based on hearsay; tipster [incl anonymous] needs police corroboration supporting magistrate's common sense) + (2) particularity (place, items [incl via explicit incorporation of affidavit in warrant])
supposed police good faith categorically does not save defective warrant if:
affidavit so egregiously vague/overbroad that reasonable police cd not rely on it; officer misled magistrate; magistrate wholly abandoned neutrality
the core requirement for execution of valid/good-faith 4th amdt warrant
respect scope of warrant
the pseudo-requirement for execution of 4th amdt warrant
knock and announce: can forgo if reasonably believe futile or dangerous or would inhibit investigation, + violation does not require evidence suppression anyway
time limit to execute 4th amdt warrant in Md.
15 days
eight excuses to 4th amdt warrant requirement
exigent circumstances, arrest, Terry stop & frisk, special needs, automobile, consent, plain view, inventory
two types of exigent circumstances excusing 4th amdt warrant
evanescent evidence, hot pursuit (incl anyone's home where suspect fled)
elements of a constitutional unwarranted search incident to arrest
lawful arrest + police safety/evidence preservation concern + search & arrest contemporaneous (Md.: OK to search first) + within scope
scope of constitutional unwarranted search incident to arrest, generally & in car
wingspan incl containers + car cabin incl containers, but if suspect secured then search car cabin for only evidence
requirements for valid consent excusing 4th amdt warrant
voluntary + intelligent (but police failure to say can refuse does not invalidate consent) + from person with at least apparent authority (police reasonable belief)
shared-premises variations on consent excusing 4th amdt warrant
consent of any sharer is valid in others'/'s absence; no valid consent where sharers disagree; any sharer may always consent as to hs own areas of dominion & control
requirements for constitutional unwarranted car search (i.e. where search is not otherwise valid via consent, arrest etc.)
presearch (not necessarily pre-pulling over) probable cause of evidence/contraband + w/in scope (incl cabin + trunk but only containers reasonably able to contain the item creating probable cause)
elements of valid unwarranted plain-view search
lawful access to viewing location & to item (e.g. see guy's backpack in plain view ≠ lawful access to inside of backpack) + immediately apparent criminality of item
two contexts for valid unwarranted inventory search
jail booking, vehicle impoundment
elements of validity of unwarranted inventory search
governing regulations reasonable in scope + search compliant therewith
examples of valid unwarranted special-needs searches
random drug test, reasonable belief contraband in probationer home, govt employee desk/file for work-related misconduct, public-school student effects for school rule violations, border
valid unwarranted special-needs searches: examples of who may be randomly tested for drugs
RR employees after accident, drug interdiction officials, public school students in extracurriculars
special-needs search at the border: what is valid
any routine search of person or effects
how to validly search/seize w/o warrant under Terry
reasonable (articulable facts) suspicion (a) of criminal activity --> stop and (b) of armed & dangerous --> frisk (open hands); seize any weapon + contraband immediately perceived w/o manipulation
when evidence is admissible despite unconstitutional search/seizure
noncriminal proceedings--grand jury, civil trial, parole revocation hearing; criminal proceedings--for impeachment of D testimony, or for all purposes if violation was reasonable police mistake in execution or only of knock/announce
fruit of poisonous tree: definition and effect
evidence derived by exploitation of earlier unconstitutional police conduct; inadmissible unless nullified by attenuation
methods for prosecution's showing of attenuation nullifying fruit-of-poisonous-tree unconstitutionality
probable cause + names of persons + specific convos to hear + time limit (cf. general warrant: probable cause + particularity)
definitions of arrest & de facto arrest
arrest = police custody against will for interrogation or prosecution (cf. seizure = reasonable person feels not free to leave/refuse to answer); de facto arrest = compelled to station for questions or fingerprints
needed to arrest: what standard and when/what warrant
standard = probable cause; arrest warrant needed in D's home; arrest & search warrants needed in 3d party's home
probable cause as to passengers in car (when you can arrest everybody)
evidence suggests common unlawful enterprise & inference of shared dominion/control
three constitutional provisions relevant to validity of confession
14th amdt DP, 6th amdt counsel, 5th amdt Miranda
14th amdt DP & confessions: general rule
exclude confession that is involuntary i.e. coerced (not merely unreliable b/c e.g. disturbed confessor)
exclude confession obtained by promises, inducements, force, threats; factors incl. where, how long, who, how, content, whether MIranda observed, condition of suspect/any mistreatment, when taken before Court Commissioner
DP & confessions in Md.: deception
no bright line on whether police deception invalidates confession
DP & confessions in Md.: analysis
police impropriety (inducement, threat, deception...) + causation/reliance, w/causation factors including lapse of
time, who initiated questioning, whether questioner changed
6th amdt right to counsel--when attaches and what covers
does not attach until charging + covers only charged offenses
Miranda: the warnings
silence + use against you + atty + court will appoint atty if need
Miranda required when:
govt custody (police domination/coercion significantly limits freedom) + interrogation (incl. any conduct police shd know will elicit incrimination; nonresponsive self-incrimination is not protecte
Under 5th amdt, the product of custodial interrogation is admissible if either of these two:
immediate public safety concern, Miranda waiver (waiver must be voluntary and informed + prosecution must prove by preponderance [≠ silence or shoulder shrug])
effect of valid Miranda waiver
interrogate suspect freely about anything (cf. 6th amdt counsel right: covers only offense charged)
What is the Miranda right and how do the warnings protect it?
It is the right against compelled self-incrimination, and compulsion = custody + interrogation. The warnings remove compulsion by enabling an informed, voluntary waiver of the right.
two indirect ways for suspect to assert 5th amdt self-incrimination right:
silence, request for counsel
If Mirandized suspect is silent, what may police do?
6th amdt counsel right attaches at charging and covers charged offenses; 5th amdt mandates that once suspect requests atty, must stop all non-suspect-initiated questioning about all subjects
admissibility of self-incrimination violating 5th amdt
yes to impeach D testimony; no to impeach 3d party witness, no in P case-in-chief, + no P negative comment re D silence or request for counsefl
admissibility of physical fruits of self-incrimination violating 5th amdt
admissible if statement, although Miranda-violative, was still voluntary; i.e. if statement violated 5th but not 14th DP
5th amdt: admissibility of second-round suspect questioning
first round (although violating 5th) was not inherently coercive i.e. DP-violative + valid waiver for second round = second-round testimony admissible
post-trial handling of improper admission of 5th amdt-violative evidence
6th amdt counsel right covers these two pretrial ID procedures:
lineups, showups (not photo arrays b/c suspect not present)
when pretrial ID violates 14th amdt DP
so unnecessarily suggestive as to create substantial likelihood of misidentification
how P can get around DP-violative pretrial ID in Md.
if D shows ID process unnecessarily subjective/substantial likelihood of misidentification, then P has burden of showing by c&c that reliability outweighs corruption
remedy for unconstitutional pretrial ID
exclusion of same witness' in-court ID
how P can get around exclusion of witness' in-court ID even where pretrial ID violated DP and P did not show reliability outweighed corruption
show witness bases in-court ID on observations other than the pretrial ID procedure
criminal P must disclose to D--MS vs. Md.
MS: all material exculpatory evidence; Md.: same + pretrial IDs, D's own statements, material subject to suppression motion
criminal D has right to judge who:
is unbiased i.e. has no financial stake in outcome or actual malice toward D
criminal D's rights at trial
P disclosure, unbiased judge, jury, confront adverse witnesses (unless serious contravention of public policy), effective assistance of counsel
jury right--for what crimes & how many people in jury
6 & 6: right exists if maximum sentence exceeds 6 mos.; jury must be at least 6 people
six-person jury must find guilt by what margin
unanimously
two discrimination-related jury rights of criminal D
pool must be cross-section; no use of peremptories for race, gender reason
ineffective assistance of counsel: test
deficient performance + but-for causation (colorable argument of nonguilt)
colloquy: judge must tell D these four things on the record
nature of charge, sentence considerations (maximum & mandatory minima), right to trial (i.e. to not-guilty plea), effect of guilty plea (i.e. trial waiver taking D straight to sentencing)
four situations allowing withdrawal of guilty plea
defective colloquy, defective jurisdiction, successful claim for ineffective asistance of counsel, prosecution breaches plea deal
how judge should respond when criminal P proposes particular sentence, disposition etc. as part of plea deal
may accept or reject
how judge should respond when criminal P proposes plea deal in which a third party's DP or witness-confrontation rights are impaired (e.g. D agrees in plea deal not to testify in the third party's favor)
must reject
8th amdt bars penalty that:
is grossly disproportionate to offense
8th amdt effect on death penalty
no automatic imposition of death based on crime category
8th amdt prohibits death penalty imposition on D who (three things):
is retarded, is insane on date sentence is to be carried out, or was under 18 at time of crime
what evidence must jury be allowed to hear when considering death penalty
all potentially mitigating
appellate effect of death penalty imposition in Md.
automatic appeal both of sentence and of guilt
double jeopardy: general rule
sovereign may not twice put D in jeopardy for same offense
three ways jeopardy attaches
jury sworn, first witness sworn (bench trial), guilty plea accepted unconditionally by court
what is the same-offense for double jeopardy purpose
offenses with all the same elements or of which only one has an element the other lacks
Does initial jeopardy for a lesser included offense preclude later prosecution for the greater offense?
yes
Among a state, its subdivisions, another state, and the federal govt, which can be the same sovereign for double-jeopardy purposes?
only a state and its own subdivision; double jeopardy does not apply with any other combination
exceptions to double jeopardy prohibition
may retry if: hung jury, mistrial for manifest necessity, successful appeal, D breach of plea deal
Who may take the 5th and where?
anyone in proceeding under oath
what precludes taking the 5th
having failed to do so re same question at previous opportunity (i.e. previous proceeding under oath)
effect of 5th admt on state use of D body e.g. blood, urine
nil; self-incrimination requires communication
three ways 5th amdt privilege is eliminated
P grants use & derivative use immunity (removes possibility of incrimination), D takes the stand (waives privilege as to anything w/in scope of cross), SOL runs out on underlying crime (incrimination possibility removed)
procedure for taking the 5th in Md.
personally (not atty) assert privilege question-by-question + judge determines good faith & reasonable basis (≠ compliance w/improper plea deal e.g. violative of another's DP or witness-confrontation right)
