4th amendment standing
Car stop = driver and passengers.
Home = right of possession and overnight guest.
When do police need warrants?
- in home, UNLESS consent or exigent circumstances.
- exigent circumstances:
1) hot pursuit: felony, NOT misdemeanor.
2) emergency: evidence destroyed OR officer safety. - knock and announce
- consent:
- third party can consent as to area of joint control, UNLESS owner is present and objects, BUT in any case NOT to area of exclusive control, BUT officers may rely on apparent authority. EXCEPTIONS: landlords and tenants, hotel guests, employee personal lockers.
- parent can consent to search of adult child’s room.
Probable cause for a warrant
1) officer’s personal observation.
2) information from reliable known informant.
3) info from unknown informant if independently verified.
4) evidence already seized through lawful means.
- Honest mistake does not invalidate warrant UNLESS officer knew the info was false or recklessly disregarded truth.
NY: probable cause
- Probable cause need not use competent evidence, may use unsworn hearsay.
- If using informant, warrant must demonstrate:
1) veracity
2) reliability
3) basis of knowledge
Search incident to lawful arrest
- within defendant’s wingspan as long as bag is large enough to conceal weapon or evidence of crime.
NY: search incident to arrest
Police may NOT search area around defendant UNLESS they believe he is armed and dangerous.
NY: emergency (search without warrant)
Must show:
1) nexus between emergency and area searched
2) emergency needed immediately attended to
3) primary purpose was to deal with emergency, not to pursue arrest.
Stop and frisk
1) reasonable suspicion
- less than probable cause.
2) based on articulable facts
- can be based on informant’s tip if reliable.
3) that defendant was involved in crime.
- Frisk: allowed if necessary for safety.
- officer can seize anything that be plainly identified by feel.
NY: stop and frisk
Officer may ONLY seize something that plainly feels like a weapon under stop and frisk.
Terry stop of car
Police can search passenger compartment for weapons if:
1) reasonable belief that suspect has dangerous weapons;
2) search limited to where weapons could be hidden;
3) may frisk individual if reasonable suspicion that he has weapon.
Rules for searching a vehicle
1) NO warrant needed if probable cause that car contains contraband or evidence or a crime (NOT applicable to searches of passengers).
2) search incident to arrest of driver if:
i) arrestee in reaching distance of passenger compartment; OR
ii) reasonable belief that evidence of offense may be found in vehicle.
3) if car legally impounded, can search entire car.
Plain view
Can seize if:
1) in house for lawful purpose
2) incriminating character is immediately apparent.
NY: plain view
Officers cannot seize material based on alleged obscenity without a warrant.
NY: consent by drivers
Anyone who drives a car is deemed to have consented to blood, urine, breath, and saliva tests.
Administrative searches
1) airports
2) business in highly regulated industries
3) wiretaps for national security
4) search of students by drug officials
5) special needs, e.g. drug testing of student athletes.
6) inventory searches of items in official custody (in NY, must have established procedures).
7) border searches.
8) checkpoints and roadblocks if uniform and nondiscriminatory.
9) file cabinets and desks of government employees if reasonable suspicion of work-related misconduct.
10) traveler suspected of smuggling contraband in stomach.
11) searches of parolees and their homes.
12) seizure of contaminated/spoiled food.
Exceptions to exclusionary rule
1) inevitable discovery rule
2) independent source doctrine:
3) attenuation principle: passage of time OR intervening events.
4) Good faith exception: if good faith reliance on warrant, evidence admissible UNLESS:
i) no reasonable officer would have relied;
ii) warrant defective on face;
iii) warrant obtained by fraud
iv) warrant improperly executed
v) magistrate wholly abandoned judicial role.
5) Back-office negligence not disqualifying UNLESS systemic or reckless.
6) Violation of knock and announce will not lead to exclusion.
7) Witness’ in-court identification is always admissible.
NY: exceptions to exclusionary rule
NY does NOT have a good faith exception.
Use of statements barred by 5th amendment
- Involuntary statements: not usable for impeachment or case in chief.
- Voluntary statements in violation of Miranda:
1) can by used for impeachment.
2) physical fruits are admissible for case in chief.
NY: voluntary confessions
NY courts consider:
1) length of interrogation
2) for minors, absence of parent.
Consequences of violation of Miranda
1) cannot be used in case in chief.
2) can use to impeach defendant if voluntary and trustworthy.
3) physical fruits of voluntary statements are admissible.
4) voluntary post-Miranda statements are admissible UNLESS police were intentionally attempting to circumvent Miranda.
* Harmless error test for evidence admitted in violation of 5th amendment.
6th amendment right to counsel
1) all felony cases
2) misdemeanor cases in which incarceration is actually imposed.
When does 6th amendment right to counsel apply?
- From formal charges to sentencing. Includes indictment, arraignment or preliminary hearing.
1) post-indictment/pre-arraignment lineups and identifications.
2) custodial and police interrogations.
3) post-arraignment interrogations.
4) arraignment.
6) guilty please and sentencing.
7) appeals as a matter of right.
When does 6th amend right to counsel NOT apply?
1) witness viewing photo IDs;
2) pre-charge investigative lineups;
3) fingerprints, handwriting, voice, or blood samples.
4) preliminary hearings on probable cause.
5) discretionary appeals.
6) post-conviction proceedings (parole, probation).
NY: “indelible” right to counsel
Right to counsel attaches on:
1) commencement of formal judicial proceedings.
2) at investigatory lineup, if defendant already has attorney and request his presence.
3) significant judicial activity, including grand jury appearances.
4) in custody, where police conduct is likely to be overwhelming to layperson, and counsel is requested.
-
Real Property146
-
Contracts147
-
Evidence143
-
Commercial paper19
-
Choice of Law22
-
Secured Transactions21
-
Torts130
-
Criminal Law82
-
Criminal Procedure63
-
Equity14
-
Corporations60
-
Agency14
-
Family Law35
-
Wills31
-
Trusts13
-
NY Procedure81
-
Fed procedure28
-
Partnerships24
-
Professional Responsibility18
-
Conlaw36
