Crim Pro Flashcards
what is a stop and frisk
Stop: reasonable suspicion (totality of circumstances) based on articulable facts that someone was involved in illegal activity, and must be a limited intrusion on ∆’s freedom of movement
Frisk
* Officer WITHOUT PC can pat down outer clothing if reasonable suspicion that person was doing crime and its needed for safety
o Plain feel exception: if officer feels something that he can tell is contraband, can seize it
when are checkpoints to gather info about a specific crime ok
The primary purpose is to apprehend someone other than the motorists
The stop significantly advances a public concern
The stop is tailored to fit important investigative needs and is minimally invasive
requirement for warrants
Neutral magistrate
Upon finding of probable cause
Described with particularity
when is arrest ok without warrant
if there is probable cause or
if there is a substantial chance of criminal activity
facts supporting probable cause for an arrest
Officer observation
Info from reliable source
Evidence seized during stop and based on reasonable suspicion, plain view, or consensual search
elements to think about for each and seizure
o Government conduct
o Reasonable expectation of privacy or physical intrusion on protected area
exceptions to search warrant requirement
o Incident to lawful arrest: must be reasonable in scope and incident to lawful arrest
Wingspan
Home – protective sweep
Vehicle – justified if
* Arrestee is within reaching distance of passenger compartment during search or
* It is reasonable that evidence of the offense might be in vehicle
when can cops search passenger compartment during a stop and frisk
okay if police have reasonable suspicion that ∆ is dangerous and could get immediate control of weapons, can search car for places where weapon might be
what is the automobile exception
Can search any part of car if there is PC that it contains evidence of a crime
plain view doctrine
In public view- no REP
In private view- if officer is on premises for lawful purpose and sees something in plain view and the incriminating nature of it is immediately apparent, officer can seize
elements for warrant to wiretap
Limited period of time
PC that specific crime has been or is about to be committd
Identify people and conversations
exclusionary rule
o Fruit of the poisonous tree: all evidence from an illegal search will be excluded
exceptions to exclusionary rule
o Inevitable discovery
o Independent source
o Attenuation: passage of time, intervening events
o Good faith
o Isolated police negligence
o Knock and announce
o In court ID is fine
when does good faith not save a bad warrant
Doesn’t apply if warrant is defective on its face, judge is egregious, no reasonable officer would rely on
5th amendment privilege
no person shall be compelled in criminal case to testify against themselves
applicability of sixth amendment right to counsel
Automatically applies at all critical stages
Attaches when state becomes adversary
test for ineffective assistance of counsel
Attorney’s representation fell below objective standard of reasonableness and
It prejudiced ∆ such there is a reasonable probability the outcome would’ve been different
test for attorney conflict of interst
Must show actual conflict and adverse effect on counsel’s performance
2 prong test for impermissible suggestability
∆ must prove ID Was impermissibly suggestive and
Substantial likelihood of misidentification
state’s duty to disclose
Affirmative duty to disclose any material evidence favorable to ∆ that would negate guilt or diminish culpability
when is state’s failure to disclose material favorable to ∆ grounds for reversal
- Evidence is favorable to ∆ and
- Failure to disclose caused prejudice against ∆
test for discrimination in jury pool
o Distinctive group excluded
o Group not fairly represented in jury pool and
o Underrepresentation resulted from systematic exclusion of group
requirements to enter guilty plea
o Must be intelligent and voluntary and made to judge
o Judge must advise ∆ and make sure no duress
o Judge must decide there is factual basis for plea
balancing test for speedy trial rights
Length + reason for delay, ∆’s assertion of right, prejudice to ∆
what can’t you have at trial
o No actual or apparent bias by judge
o Prosecutor can’t msstate law, talk to ∆ without counsel, express opinions on ∆’s guilt, comment on him not testifying
Testimonial out of court statements by witnesses not allowed unless
- I) witness is unavailable and ∆ had prior opportunity to cross
- Ii) witness is unavailable because of ∆
what are non testimonial statements
statements made for primary purpose of helping police in an investigation or emergency
bruton rule: confession by non testifying co ∆ at joint trial against ∆ violates 6th unless
Neutral references are used with a limiting instruction
appellate rights to counsel
First appeal as of right: ∆ is guaranteed EPC and right to counsel
Discretionary appeal: indigent ∆ doesn’t have right to counsel unless conviction was based on guilty or no lo contendre
plain error rule
∆ who failed to preserve claim of error is entitled to appellate relief when
o I) the district court committed error under law in effect when appeal is heard (law has changed)
o Ii) error is obvious under that law
o Iii) error affected ∆’s substantial rights
exception to miranda
public safety at risk
