CJ 180 Study Guide Midterm 11.11
CJ 180 CH 1
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CRIM PRO
SOURCES OF rights
o Constitution(s)
o Court decisions ( case law)
o Statutes
th
4 amemdment
o P5
5th am
o P5
o DP
th
6 am
o P6
o Open trials; issue
th
8 am
o P6
14th am
o p6
 substantive DP
 no arbitrary or unreasonable action by state officials
 procedural DP
 Life, lib, prop
o Incorporation
 Selective won
 Views p8
 selective
 Grand jury
Terry v. ohio
o Reasonable suspicion v. probable cause
 PC: reasonable ground for suspicion that a person….; or that a place
contains specific items connected with a crime
 RS: a specific and articulable facts … suspecting a person…
Competing concerns in crim pro
o Due Process perspective
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 To rights, liberty
 Formality of process
 Clarify: quantity over quality argument: oversimplified
o Crime control
 Insistence on informality is nonsense
o Faith in courts v. faith in police
o *underpinning all crim pro: better to let 10 free than imprison one innocent.
Subjective v. Objective
o Subjective reasonableness:
 Conduct that would be considered reasonable by that officer engaged in
that conduct (the, the)
 Based on an individual’s perceptions and feelings, as opposed to
externally verifiable phenomena
o Objective reasonableness
 What (any) reasonable person would do or feel under the circumstances
 Based on externally verifiable phenomena; w/out bias or prejudicedisinterested
Good faith exception to exclusionary rule
Pretrial
o Arrest on warrant
o If w/out warrant: PC hearing to determine PC to arrest* (not always done)
o Prelim is hearing to decide if there is PC to hold over for trial
Adjudication
o Plea bargaining
o Discovery
 Brady material
Sentencing
Appeal
o No constitutional right to appeal
o All states have a statutory right to appeal, once
Habeus Corpus
o Collateral attack, as opposed to direct appeal
o Very difficult
o Must be constitutional basis
o Loser can appeal
CJ 180 CH 2
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Exclusionary rule
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o Remedy to avoid future violations
Mapp v. Ohio
o Exclusionary applies to states
o …it is the law that sets him free. Nothing can destroy a gv’t more quickly than its
failure to observe its own law, or worse, its disregard of eth charter of its own
existence
Exclusionary rule does not apply to:
o GJ proceedings
o HC proceedings
o Parole Revocation
 Advisory not adversarial
o IRS
o INS
Good faith exception
o Warrant can not be facially deficient
Impeachment exception
o Crim defendant only
FPT doctrine
o That found purely, but indirectly as a result of improper search
o Exceptions
 Purged taint
 Ev found: big Q:
o Was derivative ev found via original violation or some
other means that are purged of the primary taint
o Wong Sun: D was illegally arrested, but later came back, of
his own free will to the station house and confessed:
attenuated to dissipate taint
 Independent source
 Entered apartment illegally; then, after that, obtained search
warrant from other info- independent of original search
 Inevitable discovery
 If it would have been discovered by lawful means
Criminal remedies
o 18 USC, Section 242 (42 USC 1983 = civil remedies only)
o Specific intent to deprive suspect of fundamental constitutional rights- that right
must be clearly established
o Almost never used
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Need really bad, deliberate behavior that is outside law enforcement
duties
 If part of official duties, then immunity attaches: called the: Public Duty
Defense
 Deadly force:
o Never to affect arrest for misdemeanor
o can if:
 to prevent flight, w/ warning
 reasonable belief of significant threat
Civil Remedies for const rights violations
o Big one: exclusion only applies with criminal charges
o 42 USC 1983: CRA of 1881
 KKK members post civil war
 Can be used to sue police
 Req’s
o Color of law
 Ident
 Investigation
 Arrest
 Police powers
o Const violation
 Certain, culpability
 Supervisor Liab’
o Clear link
 Muni liability
o Common practice beyond scope of officer
 Bivens claim:
o Extends 1983 violation to fed officers- law enforcement
only
 Most others have absolute immunity
 Qualified immunity
o Lapses in judgment and honest mistakes
 Civilian Review
 Civilian input
CJ 180 CH 3
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4th am analysis
o Government actor
 Regulators/inspectors too
 PS in gov cap
o Instrument or agent of the state
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Private cit: purely on own initiative
 But if PS gives to state, and state does more to search, then is gov
actor( the film canisters): substantially more intrusive
o Reasonable expectation of privacy
 Now, subjective and objective combined
 Seeks to preserve as private
o Justification for seizure/search
Undercover/ false friend
o Information conveyed voluntarily to a false friend
Abandoned property
o Garbage on the street: children and snoops
One’s physical characteristics
o No REP
Open fields and cartilage
o Curt.= area to which extends the intimate acvitivy associated with the sanctity of
a man’s home
 4th am applies
o V.= open fields
 4th am does not apply
o To distinguish
 Proximity to house
 Is area within fence surrounding the house
 Nature of use
 Steps to ensure privacy
o Naked eye flyover = no search
 Dow: even enhanced photos = no search
 But: must be lawful
 Kyllo: thermal imaging
o Not in general use by public
o Get a warrant
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o Dog outside apartment
Helicopter = ok sans warrant
Seizure
o Property
 If removed from actual or constructive possession
o Person
 Reasonable belief…
 By pursuit
 But, must submit to police authority
 Hodari D
o No PC to arrest: chased, tossed, no 4th am
So, if 4th am applies, what does it require
o A priori justification
o Reasonable
o For warrantless search and seizure, need PC
o Scale
 PC
 RS
 Admin justification
PC
o Beck v. ohio
 Above abre suspicion, less than for conviction
 Reasonable ground to suspect that a person has committed (is
committing) a crime, or that a place contains specific items connected
with a crime
o Always required for:
 Arrests: w or w/out warrant
 Searches and seizures of prop w/ or w/out warrants
o Informants
 Sufficient info of how CI reached conclusion
 Specific detail
 Establish reliability
 Totality of circumstances
o Reasonable but mistaken
First hand knowledge
o Before arrest
o Ybarra: warrant for tavern, not the patrons
Challenging the warrant
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o Show:
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Cop lied, delib, or reckless disregard
Specific part of warrant that is false
Supporting reasoning
Affidavits
Only to cops, not CI’s
RS
o Below PC, above hunch
Admin searches
o Reasonable standards
o Non arbitrary
o Can not be searching for evidence
o Highly regulated industries
Standing: no vicarious assertion
o Need standing
o Must be the ‘victim of the search’
o More than prejudice
o Third person’s property…
 Anyone legitimately on the premises→ reasonable expectation of privacy
by TOC
 Right to exclude others
 Continuing access with possessory interest
 Legitimately on premises and a possessory interest in the thing
seized
CJ 180 CH 4
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First excuses
o Exigent circ
o Administrative
Warrant components
o Neutral and detached
 Officer engaged in the often competitive enterprise of ferreting out crime
 No bonus for signing
 No personal interest
o PC
 To arrest
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 Pc that person arrested committed the crime
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o Particularity
 Person = easy
 Place
 With enough description that officer can ascertain place
 Reasonable mistake
 Thing
 Reasonable basis for mistaken belief, seizure will be upheld
 Plain view
 In complex cases, can be more general
Arrest with warrant’
o Illegal arrest: remedy is release
 But FPT doctrine applies
o Arrest req’s PC: stop only RS
o Stop or arrest?
 Weigh: (purpose, manner, location, duration)
 Duration of stop
 Degree of intrusion
 Officer’s intentions
 Custodial interrogation must be supported by PC
o Stop can become arrest- escalation
 At border, lower standard
 16 hours for nature to run its course did not equal arrest
 In home:
 Beware IRS
 Detained can become arrest
o But, detained while searching per warrant, does not equal
arrest
Arrest warrant required:
o In home, sans exigent circ
o In 3d party home, need two warrants
Knock and announce
o Unless dangerous or futile: RS standard (exigent circ)
o Time to wait_ facts driven
o Damage:
 Reasonable = no issue for police
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Extreme cases: 14th am comes into play
 Sacramento: shock the conscience standard- leads to liability
Amount of force
o Reasonable necessary
o Remember lethal force from before
Wrong person
o Reasonable mistake
Searches with warrants
o Knock and announce
o Lacking will not lead to exclusion
o Reasonable mistake
 Time
 Promptly
 Time of day
 Scope/ manner
 Reasonable based on object of search
 Detain people on premises, but do not search them
o ybarra
 Procedure
 inventory
 Presence of media
 Violation of 4th am
o Bodily intrusions
 Shock the conscience
 Surgery
o Case by case- very touchy
o Civil asset forfeiture
 Used to facilitate commission of the crime
 Real estate: prior hearing
 Personal prop
 Hearing after
Technology
o Private or public
o Beeper placement
o
CJ 180 CH 5
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Exceptions to the warrant requirement
o Searched incident to
o Exigent circumstances
o Automobiles
o Plain view
Incident to
o Timing
 PC to arrest must exist before search (but not actual arrest)
 Contemporaneous to
o Scope
 Immediate control / armspan
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o Immediately adjoingin from wich attack can be launched
o Protective sweep
o Can secure premises while warrant is obtained
 Monitor the movements
Exigent circumstances
o Hot pursuit
o Likelihood of escape or danger without Hot pursuit
o Evanescent evidence
 Hot pursuit
 Not a free ticket around warrant
 PC to believe suspect is there
 Harm if not immediately apprehended
 Only for serious offenses
 Broad scope
 Escape sans HP
 Limited- danger
 Evanescent
 No time to obtain warrant
 Clear indication of finding evidence
 immediacy
 Reasonable manner
o Blood: med pro, routine test
o No stomach pump
o Seriousness of crime
 For non-jailable offense is const violation (4th)
Automobile
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o PC
o Warrant impractical
o Only to automobiles
 Serves transportation function
o PC to arrest does not = full search of vehicle (think, incident to)
 If suspect may access vehicle. Or
 Evidence of the offense of arrest
o Scope:
 Containers
 Not when police waited for container to be placed in vehicle
 As thorough as magistrate could authorize
o Defined by object of search/reasonable place for
 Dog
 Legality of stop
 Duration
 No Claim of ownership (4th am standing)
o Passengers are seized (can challenge stop and search)
o Inventory search
o SEE CHART on p 154
Racial profiling
o Constitutional reasonableness does not depend on the actual motivations of the
individual officers;
 Cause to stop is cause to stop
o EP claims
 1:Practice or policy that classifies persons based on race
 2:The practice withstands strict judicial scrutiny
 Statistical evidence: used by AA in Alabama
 Rejected by USSC in challenge to Georgia’s use of Death Penalty
o Correlation only
 Scrutiny
o State must show compelling interest (can’t)
 Racially neutral policy with discriminatory impact
 Yick wo v. Hopkins
o Civil rights act
 Showing of disparate impact
 Title VII funds- almost entirely
Plain View Searches
o Lawfully there
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o Immediately apparent connection to criminality
o Inadvertent
Arrest without warrant
o Exigent circumstances
o Public places
 PC to arrest
 Curtilage- public view then hot pursuit
CJ 180 CH 6
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REASONABLE SUSPICION
o Stop
o Frisk
 Separate justifications

Stop’
o When an officer, by force or show of authority, has restrained to liberty of a
person
o Reasonable person would believe he is not free to leave
o Hodari D
 Police had not caught up with D, so not seized
 Application of force or submission to authority
o Bus
 Choice to take a bus, made him not free to leave
 Bus sweeps OK
o Duration
 Reasonable
 Public interest served by seizure
 Nature and scope of intrusion
 Objective facts relied upon
o Seizing “effects”
 90 min in airport for dog sniff= too long, seizure= unconstitutional
detention
 Specific articulable facts
Frisk
o RS that he is armed and dangerous
 No bright line
o Permissable?
 Ybarra v. Illinois
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o Scope
 Definition
 Carefully limited search of the outer clothing … weapons
o Not criminal evidence
 Reaching into pocket exceeds scope w/out further justification
o PC can develop along the way
 Motivated by safety
Automobiles
o Spec articulable
o Under RS, just grabbing area
Protective sweep of residence
o RS of danger
Plain touch and feel
o Like plain view
 RS to frisk
 Contraband immediately apparent to feel
Stops for Loitering
o Usually unconstitutional
o Too much discretion in police
Drug courier profiling
o Still need RS
o Airports
 So long as a reasonable person would understand that he could refuse to
cooperate
o The profile
 Using small cash
 No luggage
 Rapid turnaround
 Alias
 Nervous
o But, Reid case shows, still need independent RS and PC
o Factors may be as consistent with innocence as guilt
Investigative detentions
o Station house:
 RS for fingerprinting
 Carried out promptly
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