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53 Cards in this Set
- Front
- Back
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Sources of Law
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US constitution, 4,5,6, 14th amendment. Washington law: Constitution, statutes, Procedures.
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Exclusionary rule
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Government may not profit from its own wrongdoing, and, therefore may not use either the direct results or the fruits of the illegal action.
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Exclusionary rule/ scope
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Where violations of the 4,5,6 Amendments produce direct evidence: particularly physical evidence and confessions.
b. Fruit of the poisonous tree. |
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Exclusionary rule/ Limitations on scope of exclusionary rule
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Impeachment of testifying defendant with both physical evidence and statements (but not other defense witnesses).
i. Breaking the causal chain between illegal act and evidence: Independent source (another source to point to it)/Intervening act (some other act, even by defendant). |
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Standing
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a defendant has “standing” – the ability to challenge an unlawful government act—in premises she legally owns or possesses, or premises she has a legal right to stay in, or where she has “automatic standing.”
a. Where person owned or had right to possession of the place searched. b. Where the place searched actually was the person’s home, or was an overnight guest. c. Automatic standing for possessory offenses (item seized, essential element of crime is possession of item, defendant in possession of item at time of seizure. |
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Search and Seizure/ threshold requirements.
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direction of government actor.
ii. Requires “search” or “seizure” –otherwise, 4th amendment does not apply. |
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Search and Seizure/ arrest
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an arrest may be made upon probably cause. An arrest warrant is needed for an arrest of a person in his home, absent exigent circumstances.
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Search and Seizure/ arrest/ probable cause
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A reasonable police officer would be strongly suspicious that the defendant committed a crime.
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Search and Seizure/ arrest/ warrant
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Must be supported by PC, When do you need one?
1. Felony: not generally required; but, unless exigency: a. Need arrest warrant for arrest in suspect home. b. Need search warrant for arrest in 3rd party’s home. 2. Misdemeanor: Generally required, unless… a. Offense committed in officer’s presence OR b. Violent misdemeanor/serious traffic offense. |
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Search and Seizure/ arrest/ unlawful arrest
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Prosecution continues, but FRUITS obtained during arrest may be suppressed (search incident to arrest, statements during arrest).
iv. Seizures equivalent to arrest also require PC. |
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Search and Seizure/ Investigative detention (Terry stops) /
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Police may conduct a temporary detention (something less than an actual arrest) if they have reasonable suspicion that criminal activity is afoot, as derived from specific and articulable facts and based on the totality of the circumstances.
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Search and Seizure/ Investigative detention (Terry stops) / definition of a stop
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Where a reasonable, innocent person would not feel free to leave or to terminate the encounter.
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Search and Seizure/ Investigative detention (Terry stops) / must be supported by reasonable and articulable suspicion
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RS requires less than PC/ Must be individualized/ Cannot be pretextual/ Actions during stop may provide more suspicion to continue stop.
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Search and Seizure/ Investigative detention (Terry stops) / what can police do during temporary detention
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Handcuff suspect, put suspect in car, check warrants, ask for ID./ Orders passenger in or out of car with specific reasons/ Cannot ask passenger in traffic stop routinely for ID, question them.
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Search and Seizure/ Searches
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Police may conduct a search pursuant to a warrant issued by a neutral and detached magistrate upon PC; warrant needed unless the case falls under one of 7 exceptions (search incident to arrest; automobile search; inventory search; plain view; consent’ “frisk in the course of temporary stop”; hot pursuit/evanescent evidence).
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Search and Seizure/ Searches/ when does state action count as a search
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Police conduct a search when the state enters an area where the defendant has a reasonable expectation of privacy.
1. A person has a REOP in his home (including against thermal scans of its walls). He does not have this REOP in the home where things are held out to the public-if a private citizen standing where they legally are entitled to stand would be able to see the object or activity. 2. Automobiles: REOP, but less than in home. 3. NO REOP in trusted friends. 4. NO REOP in smells. 5. WA Constitution exceed federal floor; Open fields/ curbside garbage/pen register/ Bank records/ Car with GPS-beeper. |
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Search and seizure/ warrant /
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Must be based on probable cause; “a reasonable magistrate would be strongly suspicious that a 1) particularly thing of evidentiary value. 2) is at a particular place. 3) At a particular time.
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Search and seizure/ warrant /staleness
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Officers will have a problem when they wait to get a warrant or wait to serve a warrant, because information will become stale. / Anticipatory search: I will have PC when X happens.
ii. Must be issued by a neutral and detached magistrate. |
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Search and seizure/ warrant / must be issued by a neutral and detached magistrate
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1. Requires particularity: place to be searched and person or things to be seized.
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Search and seizure/ warrant / sufficiency of affidavit to establish probable cause
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1. Confidential informants: two prong test (aguilar-spinelli)/ basis of knowledge (how do I know what I know) 2) reliability of informant: How reliable am I as a person.
2. Can challenge a facially valid affidavit where there is a 1)false statement that is 2) intentionally or recklessly included and 3) material to the finding of PC. |
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Search and seizure/ warrant / warrant execution
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1. Knock announce rule (exclusionary rule doesn’t necessarily apply, however)
2. Limited scope of search (search must be reasonable) 3. Must provide copy of warrant and receipt to person searched, copy of return magistrate. 4. May detain persons at premises. But: cannot search them without additional cause. 5. See plain view: once officers are where they are legally entitled to be, may seize items that are not described in search warrant. |
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7 exceptions to warrant requirement/ Search incident to lawful arrest
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must be reasonably contemporaneous with arrest.
i. Scope: Wingspan; Protective sweep of home where reasonable suspicion that armed persons are lurking (arrest warrants).; Passenger compartment of vehicle, including containers, only if (1-arrestee is unsecured or 2- police have reasonable grounds to believe evidence related to crime of arrest is in the car. 1. Jail booking procedures |
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7 exceptions to warrant requirement/ automobiles
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1) Need PC to suspect contraband is in car. 2) Scope depends on the item and can include trunk, closed containers. 3) Must have exigency (car has to be able to drive).
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7 exceptions to warrant requirement/ plain view
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what a person can see in plain view
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7 exceptions to warrant requirement/ consent
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: Searches are reasonable where they are consented to. Do not need warrant or PC. 1) Consent must be voluntary. 2) Consent must be knowing (warning for home) 3) Scope of consent search depends on scope of consent as reasonably understood. 4) Can be offered by third person with actual authority to consent. 5) Present and objecting nonconsenter wins over consenter.
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7 exceptions to warrant requirement/ stop and frisk
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Where suspect is lawfully stopped, can pat down exterior of clothing where there is a reasonable and articulable suspicion that the suspect is armed.
i. Can remove items that: Feel like a weapon, From plain feel are contraband. Car frisk. |
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7 exceptions to warrant requirement/ exigent circumstances
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: Hot pursuit: felon is fleeing/ Evanescent evidence: evidence may disappear or be destroyed/ Community caretaking: police officer is not investigating crime.
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7 exceptions to warrant requirement/ inventory seraches
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Do not need PC or exigency. NEED
i. 1) Justified impoundment and 2) Regular impoundment procedures. Cannot look in closed/locked containers or locked trunk unless there is manifest necessity. 3) For people: inventory search upon booking at jail/ Due Process limits: Reasonable safety and security purposes for searches, cannot shock the conscience to search in that manner. |
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Confession/ may be suppressed
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1) It is the fruit of an illegal arrest or detention. 2) Due process is violated (can’t admit these for any purpose). 3) Miranda is violated. 4) Right to counsel is violated. 5) 48 hour rule is violated (defendant is arrested and is not taken to magistrate within 48 hours and confesses after 48th hour.
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Confession/ Miranda warning 5th amendment
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i. Person subjected to custodial interrogation must be given Miranda warnings. 1) right to remain silent. 2) Anything you can say can and will be held against you. 3) Right to presence of an attorney. 4) Right to have attorney appointed if cannot afford one.
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Confession/ Miranda warning 5th amendment/ waiver
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ii. Can waive Miranda rights if waiver is voluntary, knowing and intelligent.
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Confession/ Miranda warning 5th amendment/ custodial interrogation
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1) Custody: suspect is not free to leave (unless they are being questioned roadside. 2) Interrogation: direct questioning and functional equivalent (reasonable officer would know is likely to elicit incriminating response). There is not interrogation when the defendant issues a spontaneous statement. 3) Public safety exception permitting custodial interrogation under limited circumstances.
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Confession/ Miranda warning 5th amendment/ right to terminate interrogation
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: 1) invocation of right to slience: questioning must stop. However, officers can eventually re-interrogate with fresh warnings. 2) Invocation of right to counsel: questioning must cease until either he is provided an attorney or he initiates further communication with the police. Request must be unambiguous.
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Confession/ Miranda warning 5th amendment/ re-mirandize
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v. You do not need to re-Mirandize between interrogation sessions unless there has been significant time lapse.
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Confession/ Miranda warning 5th amendment/ limits on the exclusionary rule for miranda violations
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1) Fruits of miranda- violative confession are admissible, even though the confession itself is not admissible. 2) Miranda- violative confessions can be used to impeach the defendant.
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Confession/ Due process violation/ coercion
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Can waive miranda but not a coerced confession
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Identification procedures/ due process
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Defendant can challenge admission of identification where it is unnecessarily suggestive and there is substantial likelihood of misidentification. Such an ID nevertheless may be admissible if it possesses sufficient indicia of reliability.
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Identification procedures/ 6th amendment
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Defendant has the right to counsel after he has been formally charged and he is placed in a lineup or showup identification.
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Identification procedures/ remedy for violation
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xclusion of in-court identification.
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Pretrial and trial procedure/ Bail
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D has Constitutional right to bail/no preventive detention
i. Can be denied only for capital crimes. ii. For noncapital crimes, court must apply the “least restrictive alternative” Conditions may be set to secure presence at trial, to prevent interference with justice/ BAIL CANNOT BE EXCESSIVE |
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Pretrial and trial procedure/ probable cause hearing (gerstein)
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If arrested without paper (warrant, indictment) and constrained, hearing to determine PC must be held within 48 hours.
i. Defendant does not have right to counsel at this hearing./ Hearing can be conducted via video/ PC can be based on hearsay (as it could be for warrant). |
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Pretrial and trial procedure/ arraignment
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Must be held within 14 days of filing an information or complaint if defendant is in jail or subject to release conditions. Otherwise, within 14 days of first court appearance after filing.
i. Defendant has right to counsel at this hearing, as well as to advice of counsel prior to hearing, because defendant enters plea at this hearing. |
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Pretrial and trial procedure/ speedy trial
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D must be tried within 60 days of arraignment if in custody, 90 days if not in custody.
i. Remedy: dismissal with prejudice. / Court will consider: length of delay, reason for delay, whether defendant asserted speedy trial right, and prejudice to defendant. |
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Pretrial and trial procedure/ SOL
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3 years
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Pretrial and trial procedure/ discovery
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Prosecutor must disclose material, exculpatory evidence./ Remedy: where evidence is favorable to defendant and prejudice has resulted, conviction may be reversed, even if failure to disclose was inadvertent.
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Pretrial and trial procedure/ right to counsel
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Defendant has right to counsel, in Washington, in all criminal cases at all critical stages of the proceedings
i. Include: post charge interrogation, arraignments, appeas as of right. Do not include taking blood or handwriting samples. Gerstein hearings, parole/probation revocation hearings, post conviction relief hearings. ii. Defendant may waive this right and represent himself where: Defendant is competent and WAIVER is knowing and Intelligent. |
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Pretrial and trial procedure/ ineffective counsel
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1. RULE: D must demonstrate 1) counsel performed below an objective measure of competency and 2) that, but for counsel’s deficient performance, there was a reasonable probability that the outcome of the proceeding would have been different.
2. Certain cases: Do not have to show prejudice; no attorney at all; Rule 9 representative who is not qualified; live and object to conflicts in representation. |
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Pretrial and trial procedure/ Guilty
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i. Defendant has right to an attorney
ii. Plea must be knowing, voluntary and intelligent: D must be told 1) charge, 2) consequences (sentence, direct consequences). 3) rights waived (trial, jury) iii. Plea bargaining: if Prosecutor violates deal after guilty plea is entered, court may permit withdrawal of plea or specific performance of deal. |
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Pretrial and trial procedure/ sentencing
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1) D has right to counsel at sentencing. 2) D has a right to speak on his own behalf. 3) D has a right to have the jury determine aggravating/enhancing sentencing factors. 4) Court can consider hearsay and other inadmissible evidence. 5) there are limits on increased sentence after successful appeal
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Pretrial and trial procedure/ juvenile proceeding
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: 1) Juvenile courts can hold “decline” hearing and transfer juvenile for trial as an adult. 2) If you are over 18 at the time of trial, even if you were under 18 at the time of the alleged offense, you have no right to be tried as a juvenile.
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Pretrial and trial procedure/ Jury trial
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i. Defendant has the right in WA to a unanimous verdict from 12 jurors.
ii. D ahs right to jury pool that represents fair cross-section of community, but not to jury that represents fair cross section iii. Parties have unlimited challenges for cause: Bias, stated inability to follow the law/ Harmless error if juror later excluded through pereemptory challenge or does not exhaust peremptory challenge iv. Parties cannot use peremptory challenges to exlude jurors based on race. (1) Party makes prima facie showing of discriminatory challenges. 2) Burden shifts to other party to articulate neutral reasons for challenges. 3) Moving party must then show pretext. |
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Pretrial and trial procedure/ joinder of defendants
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i. D may be joined at trial.
ii. D may requrest separate trial if necessary to achieve 1) fair determination of guilt or innocence. 2) confessions implicating co-defendant that cannot be redacted. 3) Speedy trial problems. |
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Pretrial and trial procedure/ double jeopardy
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5th amendment right against jeopardy for same offense.
i. Attaches: when the jury is sworn (jury trial). Bench trial : when the first witness is sworn. ii. Only applies for same offense or included offenses: If each crime requires proof of an additional fact the other does not require, they are not the same offense for double jeopardy purposes. |
