Crim Pro

Question 2

4th Amendment

Answer 2

Prohibits unreasonable search and seizers. To assert need standing and government conduct.

D must show a government agent did the search or seizure. Then must show that there is standing. Meaning the D has a reasonable expectation of privacy.

Question 3

5th amendment

Question 4

Seizure

Answer 4

By reasonable force or show of authority

under the totality of circumstances where a reasomable person feels they have the freedom to leave

Question 5

Type of Seizure

Answer 5

1. Stop and frisk
2. Arrest

Question 6

Warrantless arrest

Answer 6

Even though they have not personally witnessed the event, but if there is probable cause then they can conduct a warrently search

Question 7

Stop and Frisk

Answer 7

If an officer has reasonable suspecion that someone has committed a crime, then can stop.

Question 8

Police checkpoint

Answer 8

1. Is it valid? as long as stopping on a nondiscriminatory basis and a reason other than general crime prevention

Question 9

Traffic Stop

Answer 9

If a PO has reasonable suspecion or probable cause that the D has violated a traffic violation then can pull over

Question 10

Search

Answer 10

Government violates D reaosnable expectation of privacy.

1. Is there a valid search warrent? Yes then good.

Question 11

Valid Warrant

Answer 11

1. issue by neutral magistrate
2. probable cause to issue the search warrant
3. describe with particularility the items to be seized and places to be searched.

Question 12

Execution of warrant

Answer 12

police should knock and announce but don’t have to

Question 13

Invalid warrant

Answer 13

As long as police officer issues warrant in good faith that it is valid, then it is constitutional

Question 14

Warrantless search

Answer 14

A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest

Question 15

Terry frisk

Answer 15

Pat down for officer safety. If when patting down and find contriband, then okay. Can only search pockets if plain feel drugs

Question 16

Terry Frisk of car

Answer 16

If a PO stops a car, if they think a weapon is in the car, then a PO can search the car for officer safety. If find contraband then probable cause for arrest

Question 17

Lawful arrest

Answer 17

A proper arrest is one that is based on probable cause. Facts supporting probable cause may come from a number of different sources including a police officer’s personal observations.

Question 18

Automobile exception

Answer 18

If police has reasonable basis to believe that a car contains contraband, then can any part of car. Not limited to just areas within reach of D.

Question 19

Plain View

Answer 19

If police are in a area that they are allowed to be, and they see an item that is clearly contraband then they can take the item.

Under the plain view doctrine, if an item is in public view it may be seized without a warrant since there is no reasonable expectation of privacy for such an item.

Question 20

Consent to search

Answer 20

Can not exceed scope and consent must be voluntary

Question 20

Extegent circumstance

Answer 20

Many examples. Including hot pursuit, danger of destruction of evidence, public safety.

Question 21

Exclusionary Rule

Answer 21

If the 4 amendment is violated, then evidence obtained as a result of the violation is excluded as well as fruit of the poisioness tree.

Question 22

Exceptions to the exclusionary rule

Answer 22

1. inevitable discovery
2. Independent source doctrine
3. passage of time
4. good faith

Question 23

5th Amendment

Answer 23

No person shall be compelled in a criminal case to testify against their self.

Right to counsel and right to remain silent.

testimonial evidence obtained by police

Question 24

Miranda

Answer 24

If a D is undergoing custodial interegation, then police must provide Miranda.

A person is in custody if they are not free to leave or a reasonable person would believe they are deprived of their freedom.

Interrogation is express questioning or words/actions the police should know will likely illicit an incriminating response.

Question 25

Miranda does not apply when

Answer 25

1. police line up
2. non government actor such as a police informant and D doesn’t know they are an informant

Question 26

How to waive Miranda

Answer 26

D may waive but must be voluntary and not coerced.

Silence does not envoke

Once waived, then police have no duty to remind them of right

Question 27

Invoke right to counsel

Answer 27

once invoked police can not question further. must be obvious and clear

non-offense specific meaning the person can not be questioned about any crimes.

ambigious statements do not count.

Question 28

Right to maintain silence

Answer 28

Must be done in a clear and unambigious manner

Question 29

Reapproach

Answer 29

If D invokes Miranda, then police may not reproach. Unless there has been a 14 day or more break in custody.

Question 30

Who can assert miranda?

Answer 30

Only D can assert their miranda

Question 31

Including a statement when Miranda is violated

Answer 31

1. involuntary statement is never admissible, based on totality of the circumstance.
2. second confessions may be admissible as long as the initial confession was an accidental forgetting of reading miranda
3. voluntary statement will be excluded if no miranda, but statement can be used to impeach them.
4. physical fruits of confession can be admitted if the statement was in violation of miranda

Question 32

6th Amendment

Answer 32

Right to counsel automatically applies at all critical stages of prosecution after formal proceedings have began.

Formal proceedings have began after an indictment or formal charge.

applies to post charge lineups

If D doesnt know they are talking to an informant, then the 6 amendment still applies

Offense specific

Question 33

Waive 6 amendment

Answer 33

knowingly and voluntarily

Question 34

Lineup

Answer 34

Can not be unnecessarily suggestive or provide a substantial likelyhood of misidentification

Question 35

Due Process burden of proof

Answer 35

Prosecution must prove all elements of a case beyond a reasonable doubt.

Judge can not provide a jury instruction telling the jury to presume a fact.

Question 36

Sentencing

Answer 36

During the sentencing procress, any fact other than a prior conviction to enhance a sentence must be proven beyond a reasonable doubt. Must be submitted to jury and they decide

Question 37

Post trial consideration

Answer 37

5th and 14th means can not subject D to double jeaperdy/

Question 38

Double Jeaperdy

Answer 38

Protects D from

1. Can’t prosecute for same offense after being acquited.
2. Can’t prosecute for same offense after conviction
3. Protects against multiple punishments for the same offense.

Question 39

Blockburger Test

Answer 39

In order to make sure a crime is not the same offense, both crimes must have a proof of an element that the other does not.

Need to have an element that the other doesn’t

Question 40

Greater and Lesser

Answer 40

D can not be charged with the greater and lesser crime.

i.e. D can not be charged for felony murder then lose and bring a separate action for robbery.

Question 41

Custodial Interegation

Answer 41

Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody. A person under arrest is, by definition, in custody and any police questioning of the person under arrest would thus be custodial interrogation. Questioning of a suspect by a police officer subsequent to an arrest must be preceded by Miranda warnings and a waiver or the suspect’s Miranda rights are violated.