Chapter 2 - Legal flashcards |

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  • A form of social control or a method of encouraging people

    Law

    Other forms of social control

    Morality and Religion

    Natural Development of law is sometimes referred to as

    Common Law

    The American legal system is based primarily on

    English Common Law

    What are the sources of laws that govern the way we live in the United States?

    Constitutional Law
    Statutory Law
    Ordinances
    Criminal Law
    Case Law
    Civil Law

    Defines the form of government Americans have established; defines our representational government and its three-branch structure (executive, legislative, and judicial)

    Constitutional Law

    Written and enacted by Congress, state legislatures, or local governing authorities in response to a perceived need. Includes civil, criminal, administrative, and regulatory laws.

    Statutory Laws

    The part of statutory laws that are defined unacceptable behaviors and government prosecution of those who commit them.

    Criminal Law

    Statutes enacted by municipal (city) or county government are know as what?

    Ordinances

    Pertains to the legal action that a person takes to resolve a private dispute with another person.

    Civil Law

    The body of law that allows for the creation of public regulatory agencies. It contains all the statutes, judicial decisions, and regulations that govern them.

    Administrative Law

    Is formed by the decisions of the court system (judicial branch).

    Case Law

    Protects individuals from governmental abuse of power and defines law enforcement's authority to act.

    The Constitution

    The first ten amendments of the Constitution is known as what?

    The Bill of Rights

    What forms the main body of the Constitution?

    The Articles of the Constitution

    Set forth in Article VI, the supremacy clause states what?

    States that when laws conflict, federal law generally overrules state and local law.

    Their purpose is to ensure that individuals rights are not infringed upon by the government.

    The Amendments to the Constitution

    Protects the freedom of speech, press, peaceful assembly, and religion.

    The First Amendment

    Guarantees the right to bear arms

    The Second Amendment

    Prohibits unreasonable search and seizure and generally requires a warrant signed by an independent magistrate (judge)

    The Fourth Amendment

    Best known for prohibiting compelled self-incrimination. It also requires a grand jury indictment for capital crimes and prohibits double jeopardy and deprivation of life, liberty, or property without due process law.

    The Fifth Amendment

    Guarantees the right to be informed of the nature the charges, receive counsel, undergo a speedy and public trial, confront witnesses, and face impartial jury.

    The Sixth Amendment

    Prohibits excessive bails and fines and cruel and unusual punishment.

    The Eight Amendment

    Expanded the Bill of Rights to the state and local government.

    The Fourteenth Amendment

    Was originally intended to restrict the actions of the federal government

    The Bill of Rights

    Part of the Fourteenth Amendment that expands the restriction the Bill of Rights places on the federal government to state and local governments and states, " No state shall make or enforce any law which shall abridge the privileges and immunities of the citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process law; nor deny any person within its jurisdiction of the equal protection of the laws."

    The Due Process Clause

    The due process clauses of the Fifth and Fourteenth Amendments require what?

    Require the government to be fair when taking away someone's life, liberty, or property.

    The two main components of due process are?

    Substantive and Procedural

    The fair and consistent enforcement of the law

    Substantive due process

    Refers to the steps that must be followed to protect an individual's rights during a criminal justice process

    Procedural due process

    Criminal or noncriminal acts that are punishable under Florida law

    Offense

    Are punishable by incarceration and classified as either a felony or misdemeanor

    Criminal Offense

    Are punishable by monetary fines or something other than incarceration.

    Noncriminal Offense

    Any crime committed for which the maximum penalty is death or incarceration in a state correctional facility for more than one year.

    Felony

    The penalty for offenses in this class is death or life imprisonment in a state correctional facility without the possibility of parole.

    A Capital Felony (highest class of felony)

    Has varying penalties, including up to life imprisonment in a state correctional facility, a fine of up to $15,000 or both.

    A Life Felony

    Carries a maximum penalty of 30 years in a state correctional facility, a fine of up to $10,000 or both

    A First-degree Felony

    Is punishable by a maximum of 15 years in a state correctional facility, a fine of up to $10,000 or both

    A Second-degree Felony

    Carries a maximum penalty of 5 years in a state correctional facility, a fine of up to $5,000 or both

    A Third-degree Felony

    Penalties of imprisonment may be extended for defendants who are classified as what?

    As violent career criminals, habitual felony offenders, or habitual violent felony offenders

    Crimes may be reclassified to the next higher degree when what factors are present?

    Violent offenses committed against law enforcement officers, correctional officers, State Attorneys, Assistant State Attorneys, and judges.
    Wearing a mask, hood, etc. to conceal identity while committing a felony or misdemeanor
    Evidencing prejudice while committing a crime (hate crime)
    Possessing a weapon while committing a crime
    Unlawful taking, possessing, or using of a law enforcement officer's firearm during the commission of a crime

    Any criminal offense with a maximum incarceration penalty in a county jail of up to one year

    Misdemeanor

    Carries a maximum penalty of one year in a county jail, a fine of $1,000, or both

    A First-degree Misdemeanor

    Carries a maximum penalty of 60 days in a county jail, a fine of $500, or both

    A Second-degree Misdemeanor

    An offense for which the only penalty may be a fine, forfeiture, or other civil penalty

    A Noncriminal Violation

    The maximum incarceration in a county jail for a period of up to 60 days, a fine of $ 500 and/or both

    Municipal / County Ordinance Violation

    The only capitol felony for which the state may impose the penalty of death?

    First-degree murder

    An example of a capitol felony where the state required to impose a life sentence without the possibility of parole.

    Sexual battery on a child under 12 years old by a person 18 years or older

    When does a classified first-degree felony, such as kidnapping or sexual battery become reclassified as a life felony?

    If the crime was committed with the use of a weapon or firearm

    What is aggravated battery classified as?

    A second-degree felony

    What is aggravated assault classified as?

    A third-degree felony

    What is battery classified as?

    A first-degree misdemeanor

    What is criminal mischief involving property damage totaling less than $200 classified as?

    A second-degree misdemeanor

    What are the four standards of legal justification?

    mere suspicion, reasonable suspicion, probable cause, and proof beyond a reasonable doubt

    What is the least and greatest amount of certainty?

    The least amount of certainty is mere suspicion, while the greatest is proof beyond a reasonable doubt

    The U.S Constitution guarantees what?

    a right of privacy, a right to be left alone - to all individuals who do not break the law.

    Occurs when an officer comes into voluntary contact with a citizen under circumstances in which a reasonable person would feel free to disregard the police and go about his or her business

    A Consensual Encounter

    Described as a hunch or gut feeling based on law enforcement training and knowledge

    Mere Suspicion

    In determining whether an encounter was consensual, the court will look at what circumstances surrounding the encounter?

    Was the individual stopped or restrained by the officer?
    Was the individual restricted from leaving at anytime during the encounter?
    Was the individual's freedom of movement restricted in anyway?
    Was the officer doing more than asking questions? Any demands made by the officer can turn an encounter into a stop.

    The next level above consensual encounter is what?

    The Investigative, or Terry, stops

    If the officer has reasonable suspicion that a person stopped was committing, is committing, or is about to commit a law violation

    Investigative Stop

    The Court ruled that a law enforcement officer may frisk the exterior clothing of someone lawfully detained if the officer has reasonable suspicion to believe that the person is armed. A frisk or pat down is not a full search, The scope of the frisk is limited to a pat down of outer clothing, containers, and property carried by the subject.

    U.S. Supreme Court case Terry v. Ohio, 392 U.S. 1 (1968)

    Reasonable suspicion is sometimes called?

    articulable suspicion and founded suspicion

    A description of the suspect, the suspect's name, and any additional information that would help apprehend the suspect

    BOLO (Be On the Look Out)

    An officer must be able to articulate his or her reason for believing the subject possessed a weapon or the pat down will violate which Amendment?

    The Fourth Amendment

    The two elements required for a lawful pat down are?

    that the subject is lawfully detained and that the officer has reasonable suspicion to believe that the subject possesses a dangerous weapon.

    Rule allows officers to seize the contraband even if it does not feel like a weapon, does not permit any manipulation or groping of the object in an effort to identify it as contraband.

    The Plain touch / feel doctrine

    A stop made by an officer on the basis of a traffic infraction when there is not enough information for reasonable suspicion to make the stop but for the purpose of investigating other, more serious criminal activity.

    Pretext Stop

    A fair probability or reasonable grounds to believe that someone committed a crime, based on the totality of the circumstances.

    Probable Cause

    The U.S. Supreme Court asserts what about probable cause?

    Probable cause exists where the facts and circumstances within the arresting officer's knowledge and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man reasonable caution in the belief that an offense has been or is being committed... we deal with probabilities. They are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Draper v. U.S., 385 U.S 307 (1959)

    A computer hit confirming that a vehicle is stolen, victims and witness sworn statements, and the odor of marijuana coming from inside a car, is an example of?

    Probable Cause

    A court review of all factors known to the officer at the time of the incident

    Totality of Circumstances

    Some common recognized sources for officers to rely on.

    The fellow officer rule, a citizen informant, corroborated (verified) anonymous tips, reliable and credible confidential information, line-ups, and show-ups

    Relying on collective knowledge of other officers when taking law enforcement action.

    Fellow officer rule

    United States v Meade, 110 F.3d 190, 193-94 (1st Cir. 1997)

    Under the ' fellow officer' rule, law enforcement officials cooperating in an investigation are entitled to rely upon each other's knowledge of facts when forming the conclusion that a suspect has committed or is committing a crime.

    A presentation of a series of photographs to a victim or witness in a non-suggestive manner for the purpose of identifying a suspect.

    Photographic Array

    The presentation of a number of individuals, which may include a known suspect, to a victim or witness in a non-suggestive manner for the purpose identification.

    Live line-up

    Occurs when a law enforcement officer locates a suspect a short time after the commission of an offense and attempts to get a one-on-one identification of the suspect in the field by the victim or witness.

    Show-up

    Although probable cause supporting a person's commission of a crime may exist, without further evidence, the state may take what action?

    The state may not be able to prove the case beyond reasonable doubt, therefore the case may not be filed by the prosecutor.

    The burden of proof in civil case is?

    The burden of proof in civil case is the " the greater weight (preponderance) of evidence."

    When the burden of proof is "clear and convincing evidence"

    Administrative proceedings

    The Fourth Amendment does what?

    Protects people from governmental intrusion into areas where they have a reasonable expectation of privacy. It prohibits search and seizures unless they are conducted with probable cause and under reasonable circumstances.

    Occurs when the government intrudes into a place where a person has a reasonable expectation of privacy.

    A Search

    Occurs when the government affects a person's right to have or control his or her property, usually by physically taking it.

    A Seizure

    The Fourth Amendment requires officers to obtain what before intruding into a place where an individual has reasonable expectation of privacy.

    A Search Warrant

    In order to be deemed valid, a search warrant must meet what legal requirements?

    It must be authorized and signed by a neutral magistrate or judge. Must be based on an affidavit that states sufficient facts to establish probable cause that evidence of a crime will be found in the place to be searched. The basis of the information in the affidavit must come from reliable sources. The affidavit may be anyone, but the person serving must have jurisdiction over the place chosen for service.

    The existence of probable cause will be determined on what?

    Will be determined based on the totality of the circumstances

    What is a crucial element, designed to prevent an intrusion into the wrong location. Describes the person or place and the items to be seized?

    A search warrant

    Is only valid for the specific location it describes; it must also describe in detail the person or items to be seized. Officers must connect the seized items to criminal activity.

    The search warrant

    The Supreme Court has ruled that evidence obtained by government in violation of the Constitution cannot be used as evidence in court. This is known as what?

    Exclusionary Rule

    Holds that evidence gathered with the assistance of illegally obtained information must be exclude from trial is know as what?

    The Fruits of the Poisonous Tree doctrine

    Applies to an officer's actions in conducting a search pursuant to a search warrant. If the officer execute a search warrant they believe to be valid and a court later determines to have legal error, any seized evidence may still be admitted.

    The Good Faith Doctrine

    A search and seizure may be defined as the government intruding where a person has reasonable expectation of privacy (REP) under what Amendment?

    The Fourth Amendment

    The three elements that comprise a Fourth Amendment "search" are?

    Government, Intrusion, and Reasonable expectation of privacy (REP)

    The two types that are often considered exceptions to the search warrant requirement are not technically searches because the person does not have reasonable expectation of privacy in the place to be searched are?

    Abandoned property and open fields

    The contents of a trash can which has been put out by the curb for pick up and when officers can seize it and search through it without a warrant is an example of what?

    Abandoned property

    Areas of someone's property where there is no reasonable expectation of privacy.

    Open fields

    The space of ground and outbuildings immediately surrounding a structure of someone's home and an open field

    Curtilage

    What are examples of curtilage?

    A fence, posted fields, bushes, shrubs, the bed of a truck

    The law presumes that a search without a warrant is invalid; however there are a number of exceptions which require probable cause which are what?

    Plain view, mobile conveyance, exigent circumstances

    Any contraband an officer can see can be seized without a warrant as long as three conditions are met: (1) the officer is lawfully present in the place where he or she sees the item, (2) the item is in plain sight, and (3) the officer has probable cause to believe that the item is contraband or crime evidence.

    Plain View

    Maybe conducted without a warrant even if there may be time to obtain a warrant, must be licensed, registered, and insured, and are easily moved, they have a reduced expectation of privacy, and does not have to occur at the same time as the stop. Probable cause is required.

    Mobile Conveyance

    The principle that an officer may search a vehicle or other mobile conveyance without a warrant if there is probable cause to believe that the vehicle contains contraband or evidence of criminal activity.

    The Carroll Doctrine
    Carroll v. U.S., 267 U.S. 132 (1925)

    If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

    U.S. v. Ross, 456 U.S. 798 (1982)

    Certain emergencies such as evidence destruction, an emergency scene, or a fresh pursuit that justifies a warrantless entry.

    Exigent Circumstances

    One of the exigent circumstances that permits search and seizure without a warrant. If the officer has probable cause to believe that contraband or evidence is in immediate danger of being destroyed, the officer does not need to obtain a search warrant before seizing the contraband to justify a warrantless entry.

    Destruction of Evidence

    Allows an officer to enter a residence or other private place, while chasing a suspect.

    Fresh Pursuit

    What does fresh pursuit require?

    probable cause that the suspect committed a serious crime, immediate or continuous pursuit of the suspect, and probable cause that the suspect is in the premises that is being entered without a warrant,

    What exception involves a situation in which an officer may make a warrantless entry in order to ensure their own safety or that of the public. For this exception to apply, the officer must have an objectively reasonable basis to believe that someone is in immediate danger.

    Emergency Scene

    What additional search warrant exceptions require less than probable cause?

    consent, inventory, administrative, incident to arrest

    Searches that do not require probable cause, reasonable suspicion, or even mere suspicion. If it is knowing and voluntary and the person giving it has authority to do so, then the search is valid and any evidence can be used in court.

    Consent

    means the consent is unequivocal, specific, and intelligently given and more than mere acquiescence in the face of a claim of lawful authority. In other words, a reasonable person under the circumstances would feel that he or she could refuse the request for consent to search.

    Voluntary Consent

    Under limited circumstances, consent to search may be implied.

    Examples are searches of airline passengers, searches of patrons attending sporting events, courts will not generally approve of warrantless searches based on implied consent.

    When is third party consent to search valid?

    If the third party has mutual access and control over the area to be searched. A search may not be done by consent of one co-tenant if another co-tenant is present and objects to the search.

    What action must an officer take when consent is withdrawn at anytime during the search?

    Once withdrawn, the officer must stop searching immediately. The scope of consent can be limited as well.

    Not designed to search for evidence but to protect the arrested person's property and to protect the officer from accusations of theft. It is a written list of all valuable property in the vehicle.

    Inventory Search

    Generally do not require a warrant due to the setting or special conditions. Subjects of this type of search include students, public schools, people in government offices, government property(such as desk. lockers, and vehicles), people engaged in certain businesses or licensed activities, and people on parole or probation.

    Administrative Searches

    When a person is lawfully arrested and taken into custody, he or she may be searched without a warrant. Such a search is reasonable under the Fourth Amendment.

    Incident to Arrest

    What are the two Supreme Court has noted "two historical rationales for the search incident to arrest exception?

    the need to disarm the suspect in order to take him of her into custody and the need to preserve evidence for later use at trial.

    A search incident to arrest may only be conducted when what two requirements are met?

    there must have been a lawful custodial arrest, the search must be "substantially contemporaneous" or at the same time with the arrest.

    A search incident may not be conducted unless there is what?

    A custodial arrest

    The scope of constitutional searches is limited to the items being searched. Once the items are found, the search must stop.

    Scope of Searches

    If an officer has probable cause to search a home for stolen refrigerators, searching drawers, clothing, and under the bed is unreasonable because a refrigerator cannot fit in those places.

    Example of Scope of Search

    Whether conducting a search using a warrant or acting under a legally recognized exception, case law and statutes allow officers to search for what items?

    dangerous weapons, fruit of the crime - objects obtained by the suspect as a result of committing the crime, instruments of crime - items used by the suspect to commit the crime, contraband - anything that is illegal to process, evidence - anything that tend to prove or disapprove the existence of a fact, items defined by statute (chapter 933, F.S.-Search and Inspection Warrants), suspects.

    Gives law enforcement agencies the authority to seize and forfeit certain property known as contraband articles.

    Sections 932.702 - 932.706, F.S.

    Include items which are illegal to possess, items used in the commission of a felony, and items purchased with the profits of felonious activity.

    Contraband Articles

    Because forfeiture deprives a person of interest of his or her property, officers must have what to seize the property?

    Must have probable cause

    What is Chapter 901 of the Florida Statutes?

    Gives law enforcement officers the authority to make arrest.

    As depriving a person of his or her liberty by legal authority.

    Arrest

    Two types of arrests under Florida law

    arrest with warrants and arrest without a warrant

    A court order authorizing law enforcement to take the individual named on the warrant into custody to answer for charges specified in the warrant. Probable cause contained in an affidavit is required to obtain what?

    An Arrest Warrant

    A law enforcement officer may make a probable cause arrest without a warrant under what circumstances?

    1. The person has committed a felony or misdemeanor of violation a county or municipal ordinance in the presence of the officer 2. The person committed a felony outside of the officer's presence, but the officer has probable cause to believe that the person committed it. 3. A warrant for arrest has been issued and is being held by another law enforcement officer or agency. 4. The general rule is that an officer may not make an arrest for a misdemeanor which does not occur in his or her presence.

    Carrying a Firearm in Violation of an Injunction, Battery, Act of Retail Theft, Traffic Offenses Related to Crash Investigation, Carrying a Concealed Weapon, Disorderly Conduct on Premises of Establishment, Theft from a Dining or Lodging Establishment, Trespass on School Grounds, Possession of Cannabis <20 grams, Stalking, Transit Fare Evasion, Criminal Mischief, Trespass on Certain Properties, Act of Domestic Violence, Violence of Injunction for Protection

    Misdemeanor Exceptions

    After an officer has developed probable cause, he or she has what three choices?

    terminate the encounter, issue a notice to appear, or physically take the suspect into custody

    A written order that may be issued by a law enforcement officer in lieu of a physical arrest requiring a person accused of violating the law to appear in the court at specified date and time.

    Notice to Appear (NTA)

    Also called an arrest affidavit - is a sworn, written statement by a law enforcement officer establishing certain facts and circumstances to justify an arrest. This document is used by the judge to determine if there was sufficient probable cause to detain the individual.

    Probable Cause Affidavit
    ( elements of the crime)

    A legal doctrine that permits a law enforcement officer to make an arrest of a fleeing suspect who crosses jurisdictional lines

    Fresh Pursuit

    The United States Supreme Court held that all law enforcement use of force cases are to be judged by an objective reasonableness standard based upon the Fourth Amendment

    In Graham v. Connor, 490 U.S. 386 (1989)

    The objective reasonableness test requires the officer to answer what two questions about level of force used in situation?

    Was the action reasonable and necessary?, and was the amount of force applied reasonable and necessary?

    Conditions required before an officer may use deadly force in stopping a fleeing felon:

    when deadly force is necessary to prevent the suspect from escaping, when a warning has been given, when feasible; when the officer reasonably believes that the fleeing felon poses a threat of death or serious physical harm to the officer or others; or when the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.

    The United States Supreme Court stuck down a Tennessee law which allowed law enforcement officers to use whatever force was necessary to stop fleeing felons.

    Tennessee v. Garner, 471 U.S. 1 (1985)

    Any force that is likely to cause death or great bodily harm under s. 776.06, F.S.

    Deadly Force

    The most common deadly force incidents involved what?

    A firearm

    The statute authorizes law enforcement officers to use reasonable and necessary force in the order to prevent the escape of an arrested person.

    Use of Force to Prevent Escape

    Put the burden of explaining the Fifth and Sixth Amendment rights on the law enforcement officer. Failure to inform a person of these Constitutional rights during a custodial interrogation may result in an admission or confession not being allowed in court.

    Miranda Decision

    The court decided that whenever a law enforcement officer questions a suspect in custody, the officer must advise the person of certain Constitutional rights.

    Miranda v. Arizona. 384 U.S. 436, 86 S.Ct. 1602 (1966)

    Four elements to the Miranda decision

    Custody, interrogation, understanding, and free and voluntary waiving of rights.

    The suspect is deprived of freedom in a significant way.

    Custody

    When is a suspect considered in custody?

    Generally, interviews at the scene - such as Terry stops, traffic stops, and field sobriety exercises - are not considered custody because they are typically brief in nature. Handcuffing the subject or otherwise restricting his or her movement so that he or she is not free to leave is considered custody.

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