Test 2 Criminal Procedure Study Guide
Test 2 Criminal Procedure Study Guide CJ 323
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This 8 page Study Guide was uploaded by Jason DeHaven on Monday March 14, 2016. The Study Guide belongs to CJ 323 at Marshall University taught by Margaret Brown in Winter 2016. Since its upload, it has received 109 views. For similar materials see Criminal Procedure in Criminal Justice at Marshall University.
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Date Created: 03/14/16
TEST 2 CRIMINAL PROCEDURES CHAPTER 6 – 9 The Fourth Amendment: says that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated. No warrants shall issue, upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” - An arrest with or without a warrant isn’t valid unless there is probable cause Page 151 Seizure: the taking of a person into custody - Every arrest is a seizure but not every seizure is an arrest Non- seizures are - Police asking people questions to gather general information - Police asking the driver to get out of the vehicle at a routine traffic stop - The police asking questions on a bus while the people can refuse to answer - Police driving alongside a person to see where they are going The test to determine if a seizure has occurred is “whether a reasonable person, viewing the particular police conduct as a whole and within the setting of all the surrounding circumstances, would have concluded that the police would have in some way restrained a person’s liberties so that he or she was not free to leave.” The police and suspects opinion don’t matter in this because they could be viewing it as two different things. Circumstances where a reasonable person could not feel free to leave - Threatening presence of several officers - Display of a weapon - Physical touching - Use of tone showing that the suspect should comply with the officer’s orders Page 153 Arrest: the taking of a person in custody against his or her will for the purpose of criminal prosecution or interrogation The four elements for an arrest are: - Seizure and detention - Intention to arrest - Arrest authority - Understanding of the individual that he or she is being arrested Page 155 Actual Seizure: the taking of a person into custody with the use of force, hands or firearms Constructive Seizure: occurs without any typical touching, grabbing, holding or use of force when the individual peacefully submits to the officer’s will and control Page 158 arrest Warrant: a writ issued by a duly authorized person that instructs a law enforcement officer to bring the person to a magistrate or judge in connection with an offence with which he or she has been charged Bench Warrant: issued when a person doesn’t appear for a hearing Telephonic Warrants: issued after a telephonic communication between the issuing judge and the officer John Doe Warrants: issued when the person to be arrested is well described in the warrant but not identified by name When is a warrant needed? - If the crime is not committed in the presence of an officer - If the suspect is in a private residence and there is no reason for immediate arrest - In home entries for minor offenses Page 163 Neutral and Detached Magistrate: an issuing officer who isn’t unalterably aligned with the police or prosecutor’s position in the case An issued warrant is accessible anywhere in the state for police to use. However if the warrant service is out of state, then it generally doesn’t carry any authority beyond the territorial limits of the state. Page 165 Citation: a writ from a court ordering a person to appear in court at a specified time Capias: the general name for several types of writs that require an officer to take a defendant into custody Arrests without a Warrant are valid when: - Felonies are committed in the presence of an officer - Misdemeanors are committed in the presence of an officer - Crimes are committed in public cases - Where exigent circumstances are present - Danger to the arresting officer What can police do after an arrest? - Search the arrestee such as strip search upon the admittance to a detention facility - Search the area of immediate control - Search the passenger compartment of a motor vehicle - Use handcuffs - Monitor the arrestees movements - Search the arrestee at the place of detention - Collect DNA samples from the arrestee What police can’t do after an arrest? - Enter a third party residence unless in an emergency - Conduct a warrantless sweep - Invite the media to ride along Federal and state statutes require that an officer making an arrest or executing a search warrant announce his or her presence, purpose and authority before breaking into a dwelling. Exceptions to the rule are danger to the officer, emergencies, person escaping or in process of the arrest. A police can detain a subject while in the process of obtaining a warrant. A police can arrest for traffic violations or petty offences. A police can arrest for offenses not punishable by jail time or prison time. Citizen’s arrest are valid if the arrest was made for felonies along with probable cause by the citizen. Page 180-183 Non-deadly force: force that is not likely to result in serious bodily injury or death. Deadly Force: force that proses a high risk of death or serious injury to its human target Reasonable Force: force that a prudent and cautious person would use if exposed to similar circumstances Punitive Force: force that is used to punish rather than to accomplish lawful results Use of force Continuums: description of an escalating series of actions an officer may appropriately use, from no force to deadly force. Both search and seizures of things as well as persons are governed by the Fourth Amendment. Searches and seizures involve the right to privacy, and many cases involve claims of possible violations to the right of privacy due to entering a home or searching a person’s belongings Two types of seizures are: Without a warrant and with a warrant Right to privacy: the right to be let alone, not specifically mentioned in the Constitution Meant to prohibit government intrusions into basic individual rights Reasonable Expectation of Privacy: exists when a person exhibits an actual expectation of privacy, and the exception is one that society is prepared to recognize is reasonable Search: the exploration or examination of an individual’s home, premises, or person to discover things or items that may be used by the government as evidence in a criminal proceeding Seizure: the exercise of dominion or control by the government over a person or thing because of a violation of law. The general rule is that searches and seizures of things may be only with a warrant, therefore warrantless searches and seizures are exceptions to the general rule. The four types of things that can be searched and seized are - Contraband - Fruit of the Crime - Instrumentalities of the crimes (weapons and burglary tools) - Mere evidence (suspects clothing, mask, shoes) The search has to be reasonable and not a fishing expedition which is illegal anyways. -need to give a list of items seized after the search The similarities and of arrest and search warrants. - Probable cause is needed - Probable cause definition is the same for both - Probable cause is finally determined by the judge - Officers need to knock and announce - Items in plain view may be seized Search Warrant: a written order by a magistrate, directing a peace officer to search for property connected with a crime and bring it before the court - Needs 4 requirements to be valid 1. Probable cause 2. A supporting oath or affirmation 3. A description of a place to be searched and the things to be seized 4. The signature of a magistrate Anticipatory Search Warrant: a warrant obtained based on probable cause and on expectation that seizable items will be found at a certain place The warrant needs to be fresh/recent information to be valid. The seven exceptions to a search or seizure without a warrant are - Search with consent exception - Search incident to lawful arrest exception Chimel rule: a rule that allows police officers after an arrest to search the arrestee’s area of immediate control 1) To protect officer, get evidence or contraband before destroyed, and to prevent escape - Exigent circumstance exception - Special needs exception 1) Such as schools students and parolees searches and seizures - Administrative searches and inspective exceptions - The stop and frisk exception - The motor vehicle exception A seizure happens every time a motor vehicle is stopped which takes the 4 thAmendment into place. - The most important rule is that law enforcement officers must have a reasonable suspicion that the occupants are involved in criminal activity before making the stop - Roadblocks are an exception to the reasonable suspicion rule Sobriety checkpoints: a form of roadblock in which the police stop every vehicle for the purpose of controlling drunk driving Roadblocks to detect criminal wrong doing are unconstitutional - Officers are limited in what they can do after making a stop - Traffic stops that are only pretexts for vehicle searches are valid - Consent searches do not require the detainees be advised that they are free to leave - Arresting occupants for non- jailable offenses are valid - Passengers can be arrested during a stop A vehicle stop isn’t fully protected by the 4 thamendment because it doesn’t require a warrant or probable cause. However there must be at least reasonable suspicion. After a vehicle stop the police can - Order the driver to get out of the vehicle - Order passengers to get out of the vehicle - Ask the driver to produce required documents - Question the driver and passengers - Locate and examine the VIN - Seize items in plain view - Require a breathalyzer test - Search the passenger compartment for weapons - Arrest if probable cause develops - Search the vehicle if probable cause is established - Search the passenger belongings - May arrest for a non jailable offense - May search on consent Pretextual stop: a valid stop that is used as a pretext to search a vehicle Vehicle searches don’t need a warrant A warrantless vehicle search can happen when there is probable cause or the vehicle is able to be driven as a get a way car Automatic Searches during Traffic Citations are Unconstitutional Police may search passenger compartments, trunks, closed packages, and containers in a car - A search of a vehicle may be not contemporaneous if there was probable cause to search the car on the highway - A police officer may proceed with a search even if there is time to get a warrant - Seizures of a vehicle can take place in public places if there is probable cause to believe is forfeitable contraband - Motor homes can be searched without a warrant if it is used to travel and non-residential - Using certain electronic devices is illegal like trackers, can use overhead surveillance Vehicle Inventory: the police list the personnel effects and opportunities they find in the vehicle Vehicle Impoundment: takes place when the police take control of a vehicle for law enforcement reasons Plain view, Open Fields, Abandonment, and Border Searches do not need probable cause or a warrant, they are more of if I see this and its illegal I’ll take it. Plain view Doctrine: items that are within the sight of an officer who is legally in the place from which the view is made may properly be seized without a warrant as long as such items are immediately recognizable a subject to seizure - 3 basic requirements are - The officer must have gained awareness of the item through sight - The officer must be in that physical position legally - The illegal item must be immediately apparent or in other words recognized as illegal The doctrine applies when - Making an arrest without a warrant - In Hot pursuit of a fleeing suspect - During a search incident to a valid arrest - While on patrol - Making a car inventory search - Conducting an investigation in a residence - Making an entry into a home after obtaining valid consent Inadvertence: the officer must have no prior knowledge that the evidence was present in the place; the discovery must be purely accidental ^(no longer required for the plain view doctrine)^ *seeing follows seeing when an officer is in an enclosed space such as a house or apartment. Plain view applies to mechanical devices and motor vehicles. Open view: applies to instances when the officer is put out in the open space but sees an item within an enclosed area Plain Touch Doctrine: if an officer feels or touches something that is immediately identifiable as seizable ; the object can be seized as long as such knowledge amounts to probable cause Plain Odor Doctrine: if an officer smells something that is immediately recognizable ad seizable; that object can be seized as long as such knowledge amounts to probable cause Open Fields Doctrine: items in open fields aren’t protected by the fourth amendment and can be taken by an officer without a warrant or probable cause - Areas not open field are - Houses - Hospital rooms - Apartments - hotel or motel rooms - sections not generally open to the public like places of business Curtilage: “The area to which extends the intimate activity associated with the ‘sanctity of a man’s and the privacies of life.’ - Places such as residential yards - Fenced areas - Apartment houses - Barns and other outbuildings - Garages Fourth Amendment protection applies to the home and curtilage Test of Curtilage - 1. The proximity of the area to the home - 2. Whether the area is an enclosure surrounding the home - 3. The nature and uses of the area - 4. The steps taken to conceal the area from public view Arial surveillance of Curtilage does not violate the fourth amendment Abandonment: the giving up of a thing or item without limitations as to any particular person or purpose - Determined by where the property is left - The intent to abandon the property Property left in an open field or public place is considered abandoned Property left in the garbage or trash outside of protected areas is considered abandoned. The intent to abandon is determined objectively b what a person does. Motor vehicle abandonment considers the following - If a person ran from a vehicle - How long the vehicle is left unattained - the condition of the vehicle - denial of ownership If the police activities to get the evidence aren’t legal then the evidence is not admissible in court.
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