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CCP Flashcards

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1
Q

Seizure

A

Under TOC, RP would not feel free to leave and either (a) police apply physical force or (b) person submits to showing of authority

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2
Q

PC for arrest

A

Trustworthy facts or knowledge sufficient for a RP to believe suspect has committed or is committing a crime

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3
Q

Is a warrant required for an arrest?

A

Not for a person in a public place. But a warrant is required for a non-emergency arrest of a person in his home

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4
Q

Stop & Frisk

A

Stop: RS of criminal activity supported by articulable facts permits police to detain a person for investigatory purposes (as long as need to confirm/dispel suspicions)

Frisk: RS detainee is armed and dangerous –> frisk detainee for weapons

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5
Q

Checkpoints

A

Police can conduct suspicionless vehicle stops if (1) stops are based on a neutral, articulable standard (e.g., every other car); and (2) stops are based on a special need distinct from general crime control (e.g., testing for drunk drivers)

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6
Q

Does an auto stop constitute seizure of all passengers?

A

Yes –> consequently, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop

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7
Q

If the police have a valid search warrant for a home, can they detain occupants inside? Can they search the occupants?

A

Officers can DETAIN occupants while a proper search is conducted. However, they CANNOT SEARCH persons found on premises who are not named in the warrant (but can conduct T frisk if RS armed & dangerous)

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8
Q

Use of deadly force

A

Seizure –> must be reasonable under the circumstances

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9
Q

Steps of analysis for evidentiary search and seizure

A

1) standing? [gov’t conduct + REP or invasion of constitutionally protected area]
2) proper warrant? [PC + oath/affirmation + particularity re place and things]
3) if no warrant, exception?

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10
Q 
Is there a REP in the following?
––(i) bank record
––(ii) smell of one's luggage
––(iii) trash on curb
––(iv) dog sniff inside curtilage
––(v) GPS device on vehicle
A

Is there a REP in the following?
––(i) bank record –> NO (3P doctrine)
––(ii) smell of one’s luggage –> NO
––(iii) trash on curb –> NO
––(iv) dog sniff inside curtilage –> YES
––(v) GPS device on vehicle –> YES (physical invasion)

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11
Q

Requirements for Proper Warrant

A

(1) PC–fair probability or substantial chance that evidence of criminal activity or contraband would be found in search
(2) Supported by oath/affirmation [affidavit]
(3) Particularity as to place to be searched
(4) Particularity as to things to be seized

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12
Q

Good Faith Exception

A

If the police rely on a facially valid warrant, which turns out to be defective because there was not probable cause, the evidence seized is still admissible.

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13
Q

What does a ∆ need to show to invalidate an affidavit that was used to support a warrant?

A

Very difficult test to meet –> ∆ must show…

(1) FALSE statement in affidavit by officer
(2) that was INTENTIONALLY or RECKLESSLy included
(3) and MATERIAL to finding of PC

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14
Q

Does the exclusionary rule apply to K&A violations?

A

No!

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15
Q

K and A Rule

A

In executing a warrant, officer must K&A and wait a reasonable time, unless doing so would be dangerous or would inhibit investigation

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16
Q

6 Exceptions to the warrant requirement

A
  1. SILA I & SILA II (Gant)
  2. Automobile Exception
  3. Plain View
  4. Consent
  5. Stop & Frisk
  6. Hot Pursuit / Exigent Circumstances / Evanescent Evidence / Emergency Aid Exceptions
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17
Q

SILA I

A
  • Constitutional Arrest
  • Police can search person/area in which he might reach for weapon or destroy evidence
  • Police can also conduct protective sweep for accomplices
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18
Q

SILA II (Gant)

A
  • Constitutional Arrest
  • Incident to arrest, police can search arrestee’s vehicle if (a) the arrestee is unsecured and within reaching distance of the passenger compartment or (b) RS vehicle contains evidence of crime of arrest
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19
Q

Incident to a DUI arrest, can a police officer warrantlessly administer a breath test? blood test?

A

Breath test: yes

Blood test: no

20
Q

Under what circumstances can officer get DNA cheek swab sample?

A

Arrest supported by PC for a SERIOUS offense

21
Q

Automobile Exception

A

PC to believe vehicle contains evidence of a crime –> allows police to search the ENTIRE vehicle + any container that might contain item for which they have PC to search

But if car is parked w/in curtilage, police need a warrant –> i.e., auto exception does NOT extend to curtilage

Police can search passenger belongings as part of AE

If police only have PC as to a container, they are limited to search the container (and cannot access other parts of the vehicle)

22
Q

Plain View

A

(1) lawful presence in area
(2) do not exceed scope for being there
(3) immediately apparent that there is PC to believe item is evidence/contraband

23
Q

Consent Exception + who can consent

A
  • Consent must be VOLUNTARY (but person need not know of right not to consent)
  • Search is limited to scope of consent

-Who can consent?
––Any person with an apparent equal right to use/occupy the property [REASONABLE APPARENT AUTHORITY]
––If co-occupant is present and objects, there is no consent
––If co-occupant is arrested and removed from premises, the police can act on the consent of the remaining occupant

24
Q

Stop & Frisk + Plain Feel

A

Stop: reasonable articulable suspicion crime is afoot
Frisk: RS person is armed and dangerous
––Limited to patdown of outer clothing –> Plain feel: immediately apparent that item is contraband or weapon

25
Q
  • Hot Pursuit
  • Exigent Circumstances
  • Evanescent Evidence
  • Emergency Aid
A

[DID NOT HAVE TIME TO GET A WARRANT]
-Hot Pursuit
–––Warrantless S&S of FLEEING FELON; can pursue into a home
-Exigent Circumstances
–––Warrantless entry into home if exigent circumstances–e.g., reason to believe evidence will be destroyed. Police cannot rely on this exception if they create the exigency through threatened 4A violation
-Evanescent Evidence
–––Warrantless seizure of evidence likely to disappear b/f warrant can be obtained
-Emergency Aid
–––Warrantless entry to address emergencies re health or safety

26
Q

School searches

A

-Drug testing of public school students who participate in extra-currics –> OK

-Search of student/possessions based on RS of crime or school infraction –> OK
––There needs to be reasonable grounds for the search, a moderate chance of finding evidence, and the search cannot be excessively intrusive given age/sex of student and nature of infraction

27
Q

Border searches

A

-Suspicionless search at border = OK

  • Roving patrol INSIDE border –> requires RS
  • FIXED checkpoint inside border –> suspicionless OK

-Opening mail –> requires RS

28
Q

Confessions: what potential constitutional amendments are at issue?

A
  • 14A DP Clause (voluntary)
  • 6A Right to Counsel (if attached)
  • 5A Miranda (silence + counsel)
29
Q

Confessions: 14A DP Clause + ER

A

Confession must be voluntary (free and unconstrained choice) based on TOC. For the statement to be involuntary, there must be some official compulsion.

ER
––Direct statements: NOT admissible
––Subsequent statements: sufficiently attenuated?
––Physical evidence: NOT admissible

Note: admission of involuntary confession is subject to harmless error analysis (i.e., if other overwhelming evidence of guilt, conviction need not be overturned)

30
Q

Confessions: 6A + ER

A

6A guarantees right to assistance of counsel at all CRITICAL STAGES of a prosecution AFTER COMMENCEMENT of judicial proceedings. Police cannot DELIBERATELY ELICIT an incriminating statement from ∆ outside presence of counsel after ∆ has been charged, regarding the crime charged, unless ∆ has waived.
––For “same offense” apply Blockburger
––For waiver: must be knowing and voluntary; if ∆ Mirandized and waived, then treat as 6A waiver too

ER
––Direct statements: NOT admissible (except to IMPEACH)
––Physical evidence: inevitable discovery?

Note
–violation @ non-trial proceeding –> harmless error
–violation @ trial –> automatic reversal

31
Q

Confessions: 5A (Miranda) + ER

A

Miranda: (1) right to silence; (2) can be used against you; (3) right to attorney; (4) appointed if can’t afford

Miranda required for CUSTODIAL INTERROGATION
––Custody: RP not free to leave + situation is akin to incommunicado station house interrogation room
––Interrogation: words/conduct likely to ELICIT A RESPONSE
––Note: detainee must know he is being interrogated by a gov’t agent (i.e., jailhouse informant won’t cut it); routine booking q ≠ INTG; spontaneous statements by suspect ≠ INTG

Waiver: knowing and voluntary

Invocation + effect:
––Silence: Must be unambiguous (“I want to be silent”). Once invoked police must scrupulously honor right by ceasing all questioning (no badgering). Can resume questioning w/ passage of time + fresh warnings
––Counsel: Must be unambiguous (“I want a lawyer”). Once invoked police must cease questioning until (a) suspect has contact w/ counsel or (b) suspect re-initiates (waives) or (c) suspect is released and 14 days pass

ER
––Direct statements: NOT admissible (except to IMPEACH)
––Subsequent statements: NOT admissible if intentional “question first, warn later”
––Physical evidence: ADMISSIBLE

32
Q

Pretrial ID: what are the potential constitutional issues? ER?

A
  • 6A right to counsel
  • 14A DP

ER: W can make an in-court ID despite an unconstitutional pre-trial ID if the in-court ID has an independent source, such as opportunity to observe the ∆ at the time of the crime

33
Q

Pretrial ID: 6A

A

Right to presence of attorney at any post-charge lineup or showup. No right for pre- or post-charge photo arrays. No right when police take handwriting or fingerprint sample.

34
Q

Pretrial ID: 14A DP

A

A pretrial identification will run afoul of the 14A DP Clause if it is (1) unnecessarily suggestive and (2) presents a substantial risk of misidentification.

35
Q

Exclusionary Rule + Exceptions

A

Evidence obtained in violation of a defendant’s 4A, 5A, and 6A rights is inadmissible at trial. Evidence that is the fruit of the poisonous tree is also inadmissible, subject to certain exceptions…

––Physical evidence derived from Miranda violation
––Independent Source: Evidence obtained from information wholly independent of violation
––Attenuation: Where intervening events break up causal chain between violation and evidence
––Inevitable discovery: police would have discovered the evidence in the natural and probable course of the ongoing investigation
––Violation of K&A Rule
––Good Faith Exception to Warrant Requirement
––Does not apply at grand juries
––Impeachment: for 4A violation; 5A violation; 6A violation

36
Q

Bail

A

No higher than necessary to assure ∆’s appearance at trial

-Attack using 14A DP (aribitrary denial will violate DP); NOT 8A

37
Q

Grand Jury v. Criminal trial–significant differences

A

GJ: no right to counsel
GJ: can consider illegally obtained evidence or hearsay
GJ: ∆ must appear, but can refuse to answer on 5A grounds

38
Q

When does right to speedy trial attach?

A

when ∆ has been arrested or charged

39
Q

Bias judge

A

Need to show actual malice against ∆ or financial interest in guilty or significant personal involvement as prosecutor in ∆’s case

40
Q

Right to jury trial

A
  • for serious offenses (6+ months imprisonment)
  • must be at least six
  • must be unanimous to convict
  • right to venire selected from representative cross-section of community
  • prosecution can’t use preemptory challenges for race/gender-based reasons
41
Q

Using co-∆’s confession

A

∆1 and ∆2 are tried together
∆1 gives confession that implicates ∆2

∆1’s statement is inadmissible, unless…
––(a) all portions related to the other ∆ (∆2) can be eliminated;
––(b) the confessing ∆ (∆1) takes the stand and is subject to cross; or
––(c) ∆1’s confession is being used to REBUT ∆’s claim that his confession was obtained coercively

42
Q

Confrontation Clause: prior testimonial statement of unavailable W

A

Prior testimonial evidence may not be admitted unless (1) declarant is unavailable and (2) ∆ had reasonable opportunity to cross-examine declarant

Testimonial: statements made to police during interrogation are testimonial if they are for the purpose of furthering prosecution, and not for responding to an ongoing emergency.

Lab tests = testimonial if offered to prove substance is what it is

43
Q

When does a judge have to give a jury instruction requested by ∆?

A

it’s correct + it hasn’t been given + it’s supported by some evidence

44
Q

When is LWOP constitutional?

A

homicide crime (including minor-∆s (but can’t be mandatory))

45
Q

Double Jeopardy

A

5A prohibits retrial for the “same” offense once jeopardy has attached

Attachment
––Jury trial: empaneling of jury
––Bench trial: swearing of first witness

Exceptions permitting retrial
––hung jury
––manifest necessity to abort original trial
––retrial after successful appeal, where reversal is based on weight of evidence –> but ∆ cannot be tried for a greater offense or given DP if jury found it wasn’t appropriate in first trial
––where ∆ elects to have charges tried separately
––SEPARATE SOVEREIGNS

Same Offense
––Same if EACH requires proof of an element that the other does not
––if jeopardy attaches for greater offense, no retrial for lesser-included offense
––if jeopardy attaches for lesser offense, no retrial for greater-included offense
––EXCEPTION: new evidence; retrial for murder is fine if V dies AFTER attachment of jeopardy for batter
––watch for legislative intent allowing for cumulative punishments

46
Q

Privilege against compelled self-incrimination

A

–∆ can refuse to answer questions that might tend to incriminate him; if criminal ∆, right not to take stand
–must claim in civil case to avoid waiver
–only applies to COMPELLED TESTIMONIAL EVIDENCE
––––not physical evidence
––––not forced production of documents
––––not being forced to say something in a lineup

Prosecutor cannot comment on ∆’s silence, unless ∆ asserts that he was not allowed to explain his side of the story. Subject to harmless error.

Pre-Miranda silence CAN be used against ∆

47
Q

Forfeiture actions

A

For PERSONAL property: no pre-seizure hearing right

For REAL property: pre-seizure notice and hearing required, unless exigent circumstances

8A does NOT apply to CIVIL forfeitures

Penal forfeitures violate 8A if grossly disproportionate to gravity of offense

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