Crim Pro

Question 1

What is a Search

Answer 1

 actual subjective expectation of privacy AND  expectation is one society is prepared to recognize as reasonable Katz

Question 2

Curtilage

Answer 2

 proximity to the home  whether included in enclosure  nature of use to which area is put  steps taken by resident to protect area from passers by

Question 3

Not a search if:

Answer 3

 if viewable from air no lower than legally allowed Ciraolo, Riley  opaque bag on a bus Bond  drug sniffing dog Place (b/c smell only contraband) as long as stop not prolonged more than reasonably required Caballes  taped conversation with informant White  knowing exposure destroys expectation like garbage Greenwood bank microfilms, pen registries

Question 4

Seizure

Answer 4

 totality of circumstances including:
 force or show of force  intimidating movement  brandishing weapons  blocking exits  authoritative tone  command  threat
NOT if: if a reasonable person would feel free to terminate the encounter, not until physically seized or seized through submission to authority (NOT fleeing) Hodari

Question 5

Probable Cause (informant)

Answer 5

 Spinelli test: 1. Reliability and 2. Basis of knowledge, both of which made known to judge
 Gates test: totality of the circumstances, one prong can make up for another (ie anonymous letter with corroborated incriminating details)

Question 6

Anticipatory warrant

Answer 6

need independent corroboration, triggering occurrence, specificity, explicitness, clear and narrowly drawn NOT IN MD

Question 7

Exceptions to warrant requirement

Answer 7

1. exigent circumstances 2. plain view 3. automobiles 4. arrests 5. consent 6. searches incident to arrest 7. administrative/inventory 8. stop and frisk

Question 8

Exigent circumstances

Answer 8

Can enter/search w/o warrant IF: objectively reasonable to believe 1. occupant is seriously injured or imminently threatened 2. to prevent destruction of evidence 3. to prevent escape of suspect

Question 9

Plain view

Answer 9

Can seize without warrant if  contraband nature immediately apparent (must have PC)  police had legal right to be where they were  can legally gain control over the thing

Question 10

Automobile searches

Answer 10

Always ok if probable cause including containers and arresting a passenger but NOT luggage or passenger clothing

Question 11

Warrantless arrests

Answer 11

police can arrest for 1. crimes committed in their presence 2. crimes for which they have PC BUT must have warrant if inside the home

Question 12

Consent to search

Answer 12

totality of circumstances, with advisal that refusal is possible not required Schneckloth
 SCOPE determined by objective reasonableness test
OJO for joint control consent of one only covers common areas, not private to the other person

Question 13

Search incident to arrest

Answer 13

person of the arrestee and area immediately around them Chimel. HOUSE: cursory protective sweep of house w/ arrest “from which attack could be immediately launched” Buie OJO need PC for more CAR: if: 1) the arrestee is within reaching distance of the passenger compartment at the time of the search (safety); or 2) it is reasonable to believe that the vehicle contains evidence of the offense of arrest (fruits), such as in certain types of possessory offenses (e.g., those involving drugs or weapons) or robbery or larceny. However, the police may not conduct such a search on the basis of an outstanding arrest warrant for speeding, for a probation violation, or for failure to appear at a court proceeding, as there are no “fruits” associated with these offenses.

Question 14

Reasonable suspicion

Answer 14

 in high crime area + flight can be RS but high crime area alone no  the border is different! Martinez-Fuerte  analyze totality of circumstances together, not separate Avizu  non race based profiles Sokolow

Question 15

Stop v. seizure

Answer 15

 maybe can’t move to another area or be more intrusive than necessary  limited in time (90 min too long Place)  take account of police purpose
 whether police diligently pursued a means of investigation likely to confirm or dispel suspicions quickly  whether police acting in quickly developing situation – no second guessing

Question 16

Frisk

Answer 16

reasonable suspicion that suspect investigated at close range is armed and presently dangerous AND that crime is afoot

Question 17

Road searches

Answer 17

 road-related purpose Sitz  at the border Martinez-Fuerte  for information seeking purpose Lidster NOT general crime control purpose Edmond  no immediate harm prevention

Question 18

Special Needs search programs

Answer 18

if general – need program purpose but not PC  special need for school disciplinary procedures  limited expectation of privacy

Question 19

Special Needs: Closely regulated business searches

Answer 19

 substantial government interest informing regulatory scheme  inspections necessary to furthering regulatory scheme  const. adequate substitute for warrant by giving notice and limits on time, place, scope

Question 20

Body Cavity Searches

Answer 20

1. clear indication that there’s evidence to be found
2. test is commonplace, no risk of trauma
3. test conducted in reasonable manner by physician in hospital (some courts require)
4. More also says exigent circumstances
5. ALSO remember Rochin shocks the conscience

Question 21

Use of deadly force to seize

Answer 21

 necessary to prevent escape
 probable cause to believe suspect poses significant threat of death or serious physical injury to the officer or others
NB: nature of felony part of dangerousness analysis

Question 22

Miranda: Is there custody?

Answer 22

 is there restraint of freedom?
 is there a message that there is no choice but to submit?
 is it an unfamiliar, interrogative atmosphere?
 insinuations that questions will continue until confession?

Question 23

Miranda: Is there interrogation?

Answer 23

 express questioning OR
 functional equivalent: any words/action on part of police that they should know are reasonably likely to elicit an incriminating response
NOT: Qs from an informant in a cell, routine booking, public safety

Question 24

Miranda: Sufficient warnings?

Answer 24

1. Reasonably convey rights at issue 2. Sufficiently comprehensive and comprehensible when given a commonsense reading

Question 25

Miranda: Invocation of right to silence?

Answer 25

→ police must “scrupulously honor”
→ but must also be unambiguously invoked
 can reapproach if  different officer  different location  different crime  (2 hours?) later

Question 26

Miranda: Invocation of right to lawyer?

Answer 26

 if unambiguous and unequivocal THEN all questioning stops for ANY crime
 can’t use subsequent questions to make invocation seem ambiguous
 attorney has to be present for future questioning
OJO! Questioning can resume if:
 suspect voluntarily initiates again Edwards
 totality of circumstances shows waiver was voluntary and knowing Bradshaw

Question 27

Miranda: Was there a waiver?

Answer 27

1. Was it voluntary and knowing 2. Was there subsequent uncoerced statement
    totality of the circumstances must show voluntary and knowing – deception doesn’t count
    note for knowing and voluntary waiver, lies intrinsic to investigation don’t vitiate
    for silence, when state establishes warnings were given and suspect understood them, any following uncoerced statement is an implied waiver

Question 28

Miranda: Step by step analysis

Answer 28

Is there custody?
Is there interrogation?
Were warnings sufficient?
Did D invoke right to silence?
Did D invoke right to lawyer?
Did D waive their rights?
Always finally was it voluntary? - torture/length/extrinsic lies/totality of circumstances

Question 29

6th Am Right to Counsel

Answer 29

Attaches with adversarial proceedings, esp indictment/arraignment. OJO questioning can continue on other crimes not indicted.

Question 30

Lineup / Other IDs

Answer 30

Violates DP IF: unnecessarily suggestive and likely to produce irreparable mistaken ID -> excluded, and in court ID also impermissible. OJO if ID inadmissible b/c of 6th Am violation, in court ID admissible if CCE that stemmed from indep. source

Question 31

Bail

Answer 31

Must have individualized hearing, and if arrest w/o warrant indep analysis of PC

Question 32

Plea bargain

Answer 32

Must be voluntary and intelligent: judge must ensure D understands nature of charges, max sentence and any mandatory minimums, right to plead guilty, that if D does he will waive jury trial right

Question 33

Right to a speedy trial

Answer 33

Attaches where D faces potential sentence of more than 6 months

Question 34

Double jeopardy

Answer 34

Attaches bench trial when first witness sworn, jury trial when jury impaneled and sworn. If one set of facts proves both offenses, subject to double jeopardy. -> merger doctrine/required evidence test. OJO Retrial is permitted where a mistrial was granted on the defendant’s motion but not when the defendant objects to the mistrial unless there is a manifest necessity that justice can only be served by declaring the mistrial.

Question 35

Right to jury trial

Answer 35

For serious offenses, ie an offense is serious if imprisonment for more than six months is authorized.

Question 36

MD No Knock Warrants

Answer 36

authorized if 1. property to be seized might be destroyed 2. life or safety of officer or other person might be endangered

Question 37

Exculpatory information

Answer 37

Unrequested evidence must be disclosed if “creates a reasonable doubt that did not otherwise exist” -> new trial

Question 38

MD Wiretapping

Answer 38

can’t do without prior consent of all parties and evidence obtained not admissible (unless gov’t agent warrant etc.) UNLESS someone out of state and conspiracy to commit crime of violence

Question 39

MD Plea of Not Criminally Responsible

Answer 39

Insanity plea must be written, must prove by preponderance (as opposed to guilty or not guilty)