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Crim Pro Flashcards

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1
Q

Basis of a legit Terry stop and frisk

A
  • RAS: reasonable suspicion, based on articulable facts, to believe suspect is, or is about to, engage in criminal behavior
  • does NOT require probable cause (more likely than not) standard for an arrest
  • can be based on REASONABLE mistake of law or fact
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2
Q

at one point does a cop need to have at least a RAS to justify questioning someone?

A

Seizure of person. When a reasonable person would not feel free to leave–that’s detainment and must have at least RAS

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3
Q

What 2 ways can a cop make a person not feel free to leave

A
  1. show of authority. reasonable person would not feel free to say “I’m going away now dude”
  2. physical force. Intentionally stopping suspect’s movements
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4
Q

what can an officer do to a suspect if he has RAS but not PC?

A

-Detain person, not free to go

  • can pat down for officer safety (NOT to search for illegal matter, only for safety)
  • if he pats someone for safety and feels shape of a crispy baggie of weed, can legally seize that and then we have PC! for arrest

-circuit split: with concealed carry states, officer can stop and frisk every time he wants to talk to someone? Not sure?

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5
Q

If a Terry stop is unlawful (no basis) is the evidence from it admissible?

A

BULLSHIT but yes it still is

if officer develops basis for lawful arrest during the stop, that evidence is admissible and he can arrest even if he stopped guy for no reason at all

Ex: stopped guy in front of rumored drug house. No RAS, but talked to him and ran a warrant check, found it, then arrested him and found drugs. That’s all fine.

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6
Q

traffic stops

A
  • must have reasonable suspicion to believe that driver is engaged in breaking law (like a blinker out)
  • THEN, can pat down occupants for weapons if officer has RAS that person is armed. Can also check part of car

Checkpoints: Officers don’t need RAS to stop people at a checkpoint

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7
Q

What is probable cause?

A

when a reasonable officer would believe it is more likely than not that a person has committed a crime

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8
Q

can a cop stop someone they want to catch for dealing drugs on the pretext that they are acting like they might be about to rob a store, or can an officer follow a suspect in a car for 10 minutes until they break a traffic law because they want to look in the car?

A

Yep. Pretext stops or arrests are fine.

PC for one crime means you can arrest and charge with different crime
Can get someone initially on a traffic violation even if your intent was a gun smuggling catch

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9
Q

Can a cop ignore one person who has a blinker out, then pull over a second one because he thinks he looks more suspicious?

A

Yes, so long as there is no racial profiling or similar violations of other laws.

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10
Q

What is needed for a warrant?

A

Must be issued by neutral and detached magistrate because on showing of PC.

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11
Q

What action does an arrest warrant authorize

A

Warrant authorizes officer to arrest a particular person. Name person and offense. One arrest warrant is issued, officers can go into his home.

To go to a 3P premises, need search warrant (unless warrant exception etc). Arrest warrant is only for going into arrestee’s home

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12
Q

Warrantless arrests can happen when:

A

-In a public place for a crime committed in officer’s presence (felony or MSD)
OR with PC for a felony (NOT misdemeanor)

  • Consent to enter
  • Felony hot pursuit
  • Danger to others
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13
Q

What are the consequences of an illegal arrest?

A

If arrest is illegal (no PC or warrant), then person can still be prosecuted, but evidence from that arrest may be suppressed unless subject to exception

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14
Q

What can be searched when someone is lawfully arrested?

A

Can search person and area immediately around them for 2 purposes:
1. officer safety
2. prevent destruction of evidence
- arrested on street: suspect and wingspan
-arrest in home: suspect and immediate area
-arrest in car: so long as suspect still has access to vehicle, can search passenger compartment for weapons/evidence
Can look inside your wallet or in your notebook in your pocket

Any evidence seized during lawful arrest can be used against person arrested

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15
Q

can the police search your cell phone incident to arrest?

A

no. can seize it a prevent you from accessing it (Faraday bag) but cannot open it without your consent or a warrant

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16
Q

Where does a person have a reasonable expectation of privacy such that the area cannot be searched without justification?

A

NOTE for EXAM: must be D’s REoP! D has no REoP in friend’s dwelling because no standing to contest a 4A violation onto friend’s property–your rights were not violated!

  1. Dwelling
  2. Hotel room
  3. Offices
  4. Luggage
  5. Curtilage (back yard, porch etc)

NO expectation:

  1. Public streets (can be tailed)
  2. Open fields, even if private property
  3. Garbage, once left in street (abandoned)
  4. Abandoned property
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17
Q

Two types of search

A
  1. Intrusion into private property. Dog into back yard, GPS device on your car
  2. Thermal imaging device to surveil house where marijuana is being grown. Is search because you have reason expectation of privacy inside your house. SO even though no physical intrusion, tech can count as a search. NOT dog sniff in airport or around car or accessible parts of dwelling (up to front door etc)
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18
Q

When does someone who does not live in a house have a REoP there?

A

Overnight guest has standing, as does the owner/renter.

A previous occupant (old roommate) does not (no REoP)

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19
Q

What is needed to get authorization to search a place where D has a REoP

A

WARRANT

  1. Issued by neutral magistrate
  2. Based on showing of probable clause to show that property being sought is fruit, instrumentality, or evidence of a crime, AND
  3. Describe property and place to be searched with particularity

Without all 3 of these, warrant is invalid and evidence is inadmissible

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20
Q

What is the specificity requirement for a search warrant?

A

WARRANT—PARTICULARITY

NOT sufficient: warrant issued for “evidence of a crime in locations subject to the suspect’s control”

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21
Q

What do the cops need to get a wiretap?

A

WIRETAPs

Need warrant:
Describe conversation looking for
Have an end date
Minimization of hearing conversations outside scope

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22
Q

Warrantless searches: exceptions

A

AA SPACES

Arrest.
Administrative search. Fire inspection see weed plant, heavily regulated areas like airport luggage search
Stop and frisk. for weapons, officer safety
Plain view.
Automobile exception. (see explanation)
Consent. With extras
Exigent circumstance. Emergencies, hot pursuit (run into apartment, see things)
Special government purpose. ?

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23
Q

Limits of the auto exception to warrant requirement

A

Because autos can leave the scene.

Incident to arrest: passenger compartment IF arrestee is within reach of passenger compartment.

Can conduct PC search of any part of car, or containers inside car, they think might have evidence of crime.

  • Example: PC to believe there is a machine gun in car. Can each trunk, but not Altoids container.*
  • Ex: known drug dealer with PC that he had drugs in car, no blinker, pulled over. Found drugs in trunk. OK because PC search of car.*
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24
Q

Exceptions to the 5A protection against self incrimination

A

Does not apply to:

  • civil liability. A civil D may be forced to testify against himself
  • corporations (even if corp officer is producing doc that would incriminate him)
  • physical evidence: blood test, handwriting sample, breathalyzer can be warranted
  • immunity–no 5A privilege if cannot be prosecuted
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25
Q

What does “self incrimination” apply to?

A

any testimonial statement that might lead to criminal prosecution or finding of guilt

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26
Q

What is an interrogation?

A

“Interrogation” can include conduct–words or acts–that the police know or should know will elicit an incriminating response.

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27
Q

What is an exception to the Miranda requirement?

A

Ticking time bomb/public safety exception: TELL ME WHERE IT IS

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28
Q

When does a Miranda warning need to be given?

A

When there is a custodial interrogation.

Custodial: when a reasonable person would not believe he is free to leave
Interrogation: any conduct designed to elicit a response from suspect

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29
Q

If an officer comes up and says “I’d like to talk to you about a robbery near here”

and you say “I didn’t mean to!”–admissible?

A

Yes, statement was voluntary. No Miranda needed until in custody

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30
Q

Is any interrogation in prison a custodial interrogation?

A

Odd: if already in prison, not necessarily “in custody” if they are free to go back to their cell.

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31
Q

Cop walks up: “you’re under arrest!”
“for what?”
“Murder!”
“No, it was just a robbery!”
Admissible?

A

Yes, admissible. Miranda not needed because that was not an interrogation–no conduct designed to elicit a response regarding a crime

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32
Q

When can your silence be used against you at trial?

A

Before a Miranda warning. If a cop comes up to a person on the street, says “Hey can I ask you some questions?” and the suspect says “I never talk to the cops” or just glares silently, that can be used against suspect in court

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33
Q

When must a cop cease an otherwise lawful, Mirandized interrogation?

A
  1. “I don’t want to talk.” Silence alone does NOT stop the interrogation.
    1. Cops CAN go back after considerable period of time has elapsed
      can start again if D initiates conversation
  2. “I want a lawyer.” Police have to stop. “I think I should talk to someone” is not enough. After the right to counsel is invoked, all questioning must stop until the lawyer is present or the defendant initiates contact with the police.
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34
Q

How about if a cop Miradizes someone, questions them voluntarily (waiver of rights) for a while, then the person sits in a cell overnight and the cop brings them back into the interrogation room?

A

BREAK IN QUESTIONING: If the interrogation of a suspect who has waived his/her Miranda rights is stopped for a long duration, police should re-Mirandize the suspect prior to resuming the interrogation.

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35
Q

If a jailed person has not asked for a lawyer but one shows up (maybe sent by family) to represent them, do the police need to tell the person?

A

No. The lawyer can demand all he wants, but the suspect has to ask for him to force the police to let him in.

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36
Q

What are acceptable ways to get a confession in a lawful interrogation?

A

Confession must be voluntary–but this can include deceit. It could even be a completely outrageous lie.

But no improper threats or coercion (nothing physical, no “I will kill your family” etc)

37
Q

What are the legal effect of an involuntary statement?

A
  1. INVOLUNTARILY obtained statements—threats/coercion are NEVER admissible. Real Q is whether to overturn conviction (is it harmless error)
    1. Evidence obtained as a result of involuntary statement—fruit of poisonous tree, presumptively inadmissible
38
Q

What is the legal fate of voluntary statements obtained in violation of Miranda (no warning, continuing interrogation after invoking 5th or atty rights)?

A

inadmissible in case-in-chief, but can be used for impeachment

39
Q

What is the source of the right to counsel during custodial interrogations? When does the right end?

A

The 5th Amendment

It ends at the commencement of judicial proceedings

40
Q

When does the 6th Amendment’s right to counsel kick in? How does one invoke it?

A

6A right to counsel applies automatically to OFFENSES that have been formally charged (like by indictment or information).
This also applies to offenses that would be considered the same as a charged offense (Blockburger test, offenses are not the same if each has an element other does not. So larceny and burglary are the same but larceny and murder are not).

41
Q

Do you need to be in custody to have a 6th Amendment right to representation?

A

NO. applies as soon as charges are formal* and continues throughout most of prosecution

(does not apply to habeas proceedings, discretionary appeals)

“at the commencement of judicial proceedings”

42
Q

Does a defendant or his atty have a right to be present at a photo array ID attempt?

A

Not while the witness is there, but they have a right to see the array afterwards

43
Q

If a suspect is asked to be in a police lineup for ID, does he have the right to counsel?

A

Only if he has been indicted (where 6A attaches)

If violated, ID from live lineup is inadmissible

44
Q

How might an ID at a photo lineup still be admissible even if the cop heavily tried to influence the witness, or the lineup was not similar looking people?

A

If the witness was positive of the identification regardless of the police officer’s suggestion, as she sees the suspect walking his dog almost every morning or something

45
Q

A woman charged with murder appears in a police ID lineup. She looks very different from everyone else and her atty is not present. The witness points at her and says, “that’s not the murderer, but she’s a waitress at a cafe I go to every day and I saw her steal a purse!” Admissible?

A

YES. Because a super positive ID overcomes a tainted lineup, and because while this would have been inadmissible for IDing the murderer because the atty was not present, the 6a does not attach to the crime of theft, since it wasn’t yet charged. So the statement is admissible for theft but not murder.

46
Q

What is the Exclusionary Rule?

A

Evidence obtained illegally, either

physically through illegal search or

a statement obtained through illegal interrogation,

is inadmissible at criminal TRIAL against person whose rights were violated.

(CAN be presented to grand jury)

47
Q

Who has standing to object to evidence at a trial on 4A/5A grounds?

A

Only the person whose rights were violated. If police break the law and search a random house with no PC, and see photos of D smoking crack, D cannot exclude that photo.

Sam gets arrested w/o Miranda. Interrogated, says, “I robbed the bank with Bob.” Sam can exclude the statement on 5A grounds, but Bob can’t

(exception: passengers in a car have standing because passengers are also seized)

48
Q

X is in custodial interrogation with no Miranda. Says voluntarily, “the drugs are in my house.” Cops go get warrant find drugs. Admissible?

A

The statement is not admissible, but its fruits (the drugs) are.
NOT THE SAME with illegal searches or involuntary statements! Inadmissible!

49
Q

Cops beat up suspect in interrogation room, he says “I sell guns! The machine guns parts are under my couch!” Admissible?

A

No, neither is admissible because the confession was involuntary

50
Q

illegal warrantless search of house. Find safe deposit box key. Open box, find incriminating evidence. Admissible?

A

No. fruit of the poisonous tree. Excludes evidence that was obtained both as a direct result of the violation AND any evidence that flowed from that.

51
Q

Exceptions to the Exclusionary Rule–just the acronym

A

Killers In Illinois Always Go [2] INdiana

KIIAGIn

because Chicago is where crime happens and they escape to live out their lives in a barn in the countryside!

52
Q

Exceptions to Exclusionary Rule

A

Knock and Announce
Inevitable Discovery
Independent Source
Attenuated Chain of Causation
Good Faith Mistake re: search justified
Isolated Negligence by LEO

53
Q

Knock and Announce Exception

A
  1. Even if police fail to K&A, as long as they were allowed to come in (warrant, exigent) then not suppressed.
    1. USCT held that before police burst in, even if they have a warrant they must knock and announce they are police (otherwise think they are intruders). IF they barge in without K+A, evidence will NOT be suppressed so long as they had a warrant OR exigent circumstances.
      1. This is because K+A is not actually a Constitutional requirement–it’s a practical safety technique.
54
Q

Inevitable Discovery Exclusion

A
  1. If evidence would have been found anyway through lawful means, not suppressed.
    Ex: cop does warrantless search, but other cop is getting search warrant right then. Evidence from warrantless unlawful search is admissible
55
Q

Independent Source Exclusion

A

If a D whose rights violated tells cops drug location, suppressed. HOWEVER if another source also tells them then not suppressed.

56
Q

Attenuated chain of Causation Exclusion

A

If the unC conduct is far enough before the eventual discovery of evidence.

Ex: Utah vs. Strife. Cops watching drug dealer house, no PC for any particular person there. Strife left house, stopped with no RAS (unlawful). Found warrant for different crime. They then to conduct search incident to arrest, find drugs. That’s enough for a break—warrant broke chain.

57
Q

Good Faith exception to the exclusionary rule

A

If officer have good faith reason to believe search is justified. (like defective warrant that looks fine to officer)

Ex: Cop asks for ID, person says no, they arrest him for violating the ID law, but the next day the ID law is declared unC. Admissible! Ex2: Officer had arrest warrant that appeared valid, conducted search pursuant to that. Later found that warrant was defective. Can STILL keep evidence found under invalid warrant. Unless warrant obtained by fraud, or was so obviously terrible in its face.

58
Q

Isolated negligence exception to exclusionary rule

A

Conduct must be sufficiently deliberate (not random negligence) that suppression would have a deterrent effect, or not exclusion.

Ex: clerk in one county called clerk in another, asked if there was a warrant for Mr. Jones, she said yes. Cop sped away to arrest Jones (with zero other justification). Searched him and found drugs. After he was arrested, other clerk called back to say that she was mistaken, was an old warrant they forgot to remove from file. NO exclusion.

59
Q

What is the harmless error rule?

A

That a conviction will only be overturned for a violation of D’s constitutional rights if the exclusion of the evidence would have changed the verdict

60
Q

how to attack the exclusionary rule:

A
  1. what was violated?
    4A violation: search or seizure needs PC, warrant, or Terry stop needs RAS
    5A: was there custodial interrogation? Did he get warning? Did he invoke rights
    6A: did he not get counsel after indictment?
  2. IF violation, does E-Rule apply?
  3. If E-Rule applies, does an exclusion apply?
61
Q

How does a grand jury work?

A

GRAND JURY: it’s all secret.
Proceedings not governed by rules of evidence.
Exclusion does not apply.
Hearsay is allowed.
D does not have right to present evidence or testify.
Witnesses do not have right to counsel inside GJ room, but can leave the room to consult w/ atty (some say to come out after every Q to consult). Violation of law to release anything from GJ transcript.
Majority vote is enough to indict.

62
Q

When does a criminal defendant have a right to a jury trial?

A

For anything that carries a potential sentence of 6months

63
Q

minimum sizes and verdict requirements for CRIMINAL juries

A

federal jury: 12, unanimous

state juries: min of 6, unanimous

64
Q

requirements for jury POOL

A

-jury pool must rep fair cross-section of community,

no major group excluded (not women or hourly wage earners, for example)

65
Q

jury selection process and requirements

A

Actual jury, selected by vois dire

-need not rep cross-section of community, but must be neutral jurors

-removed by challenges for cause and peremptory challenges
FOR CAUSE challenge: if juror indicates he will not be impartial (required by 6A), i.e. knows parties or has strong beliefs
no limit has to # of people struck for cause
PEREMPTORY: any reason (except race or sex or orientation or religion), but limited # of challenges by statute (often 3)

66
Q

why is there a 6A right to a speedy trial?

A
  • D can he injured by waiting for trial—witnesses forget, evidence is lost
  • Statutes of limitations may expire. Normally start to run when crime occurs, unless ongoing offense when it starts at last day of offense
67
Q

Can a white defendant challenge a jury verdict that was intentionally 100% white?

A

Yes. A defendant convicted by a jury that excluded members of a racial group may raise an equal protection challenge—even if the defendant is not a member of the excluded group

68
Q

what is even a grand jury anyway?

A

A grand jury determines whether probable cause exists to formally charge a person with a crime and consists of citizens who reside in the judicial district where the grand jury sits.

69
Q

Does a grand jury have to be free of racial discimrination?

A

the Fourteenth Amendment equal protection clause prohibits racial discrimination in the selection of grand jurors.

70
Q

What are structural errors that render a verdict unlawlful because they affect the whole structure of a trial. and cannot be harmless error?

A

But structural errors (e.g., discriminatory selection of grand jurors) are never harmless because they affect the entire framework of a trial and render it fundamentally unfair. They therefore require automatic reversal on appeal.

  • Biased judge
  • Deprivation of right to counsel
  • Attorney enters guilty plea over defendant’s objection
  • Discriminatory selection of jurors
  • Exclusion of defendant from courtroom during trial
  • Denial of public trial and/or jury trial
  • Improper jury instruction on burden of proof
71
Q

What amendment bars double jeopardy? What is double jeopardy?

A

The Fifth Amendment double jeopardy clause bars a second prosecution for the same offense once jeopardy has attached—e.g., when the jury is impaneled and sworn in.

72
Q

When does double jeopardy not apply even after a jury has been sworn in?

A

However, there is no bar to a second prosecution when:

  1. mistrial:
    - at the defendant’s request or with the defendant’s consent or
    * -*due to manifest necessity—i.e., a situation rendering it impossible to continue the trial or reach a fair outcome. like hung jury.
  2. no 5A right attachment: Jury was not impaneled & sworn or judge did not begin to hear evidence
    * 3. Appeal court remand. A*ppellate court discovered trial error & remanded case
  3. NEW facts. Facts necessary for greater offense did not exist at first trial
  4. Guilty plea to lesser offense. Greater offense was charged at time of plea to lesser offense.
73
Q

What is possible to impose the death penalty on an accomplice to felony murder?

A

The D must have
1. killed, attempted to kill, or intended to kill
OR
3. significantly participate in the commission of the underlying felony AND
4. Act with reckless indifference toward human life

74
Q

is death by lethal injection cruel and unusual?

A

Death by lethal injection is generally not considered cruel and unusual punishment. The reason is that there is only a slight possibility that the condemned would receive an improperly administered shot that would cause unnecessary pain

75
Q

can a drug sniffing dog come onto the porch without a warrant?

A

NO. cannot sniff in the curtilage, can only lurk momentarily

The curtilage (e.g., porch, yard) is a constitutionally protected area since it immediately surrounds and is closely associated with a person’s home. Police have an implied license to briefly intrude upon a person’s front curtilage in the same manner as an ordinary visitor (e.g., to knock on the front door to speak with the homeowner). However, entering the curtilage in an unusual manner for an uncommon purpose (e.g., to conduct a dog sniff for drugs) constitutes a Fourth Amendment search and must be supported by a warrant.

76
Q

without a warrant or probable cause, how long can a cop stay on a person’s porch, or elsewhere in the “curtilage”?

A

as long as an ordinary visitor

no “unusual manner” either–infrared goggles, drug sniffing dog

(no hanging out, trying to peer in windows past plain view, etc)

77
Q

what does the bar exam think the curtilage is?

A

house and yard, aside from front path to porch

78
Q

what is the physical trespass test for an illegal search?

A

, a Fourth Amendment search occurs when the government physically intrudes upon a constitutionally protected area to obtain information.

(repsumanly, REoP)

79
Q

when may a cop use a drug sniffing dog?

A

An officer may conduct a canine search of an area that is not constitutionally protected, if the officer has a warrant for the search or an exception to the warrant requirement applies.

PC is not enough for a canine search!

80
Q

do you need a warrant,

A
81
Q

Which legal rights and privileges apply to a grand jury hearing?

A

Constitutional: 5A self incrimination (cannot be forced to testify), =P Clause (disrcimination), Congressman can’t be questioned about legislative (speech debate clause)

Privileges: A/C, spousal, marital comms, therapist-aptient

THAT’S IT

NO 6A right to counsel in the room

82
Q

If a suspect confesses after arrest but before Miranda warning, then confesses again at the police station after Miranda, signing waiver, and giving totally voluntary confession, is her second confession admissible?

A

an initial Miranda violation does not automatically require the suppression of the defendant’s later confession, which was made after she received Miranda warnings.
admissibility of second confession turns on whether, given the totality of the circumstances, the later statement was voluntary.

83
Q

list the 4 search warrant requirements

A

Warrant requirements

  • Based on probable cause
  • Supported by oath or affidavit
  • Issued by neutral & detached magistrate
  • Particularly describes place to be searched/items to be seized
84
Q

When is a “protective sweep” allowed and what does it allow?

A

A protective sweep is permitted if police have a reasonable suspicion that there is a confederate (i.e., someone who might launch an attack) in spaces immediately adjacent to the place of arrest. However, the sweep must be limited to a quick visual inspection of places in which a person might be hiding.

85
Q

can a warrant be issued to search a place that may, in the future, have drugs in it?

A

ANITICIPATORY WARRANT
if X occurs, warrant becomes valid

YES, IF… But the anticipated occurrence of an event (here, delivery of the suitcase full of drugs) can supply the probable cause necessary for the issuance of a valid warrant (i.e., an anticipatory warrant).

86
Q

What conclusions to a trail does double jeopardy protect against?

A
  • Protection against a second prosecution (jury sworn in) for
  • the same offense after acquittal
  • the same offense after conviction
  • after a mistrial is declared in the absence of manifest necessity (inability to finish trial sue to hung jury)
  • Protection against multiple criminal punishments for the same offense

DOES NOT:

  • stop civil penalty for same conduct
  • apply to admin proceedings like licensure remocval
  • apply to stuff like bond and parole hearings
87
Q

Grounds for dismissing an indictment

A
  1. indictment itself is deficient: JDX/venue improper, elements of crime wrong, fails to charge correct crime, SoL has run
  2. GJ proceeding problem: unqualified juror, prosecutor misconduct, exclusion of juror based on race/gender
  3. C violation: 5A double jeopardy, 5/114 due process, 6A speedy trial
88
Q

Must a narc talking to a suspect both in jail Mirandize the suspect before talking to him?

A

No, even if, as here, the suspect was in a jail cell and the cop did conduct he knew would elicit an incriminating response (saying it was badass to murder the suspect’s rival).
NARCS DON’T HAVE TO MIRANDIZE if their victim doesn’t know the narc is a narc

Bar Exam (21 decks)

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