Crim Pro Flashcards
Crim Pro - 4TH A STANDING
1) ∆ had a subjective expectation of privacy
2) Society objectively considers there to be privacy in the thing searched
Crim Pro - TERRY STOP
Stop = in view of all circ’s, reasonable person would have believe he was not free to terminate the encounter or otherwise decline the officer’s request
Reasonable Suspicion = particularized, objective basis for suspecting a person of criminal activity
Crim Pro - TERRY FRISK
Police must have reasonable suspicion that the suspect is armed AND dangerous.
Limited search of outer clothing for assault weapons is allowed.
Crim Pro - POLICE CHECKPOINTS
Police may set up temporary roadblocks to stop cars w/o individualized suspicion the drive has violated the law, IF:
1) cars are stopped on a neutral, articulable basis AND
2) the roadblock is designed to serve purposes closely related to a particular problem related to automobiles
Crim Pro - PROBABLE CAUSE
Practical, common sense decision whether, given all of the circ’s set forth in the affidavit, including the veracity and basis of knowledge of persons supplying HS info, there is a FAIR PROBABILITY that contraband or evidence of a crime will be found in a particular place OR that a crime has been committed and the person to be arrested committed it.
Crim Pro - SEARCH WARRANT REQUIREMENTS
1) Supported by PC
2) Describe place and things to be searched w/ reasonable particularity
3) be issued by a neutral and detached magistrate
Crim Pro - WARRANT LIST EXCEPTION
1) Consent
2) Plain View
3) Automobile Exception
4) Search Incident to Lawful Arrest
5) Inventory Search
6) Exigent Circumstances
Crim Pro - CONSENT EXCEPTION
- Must be knowing, valid, and intelligent
- By someone the officer reasonably believes has authority to give it
If 2+ people control the property, 1 can give consent UNLESS the other is present and objects or was removed to prevent objection
Crim Pro - PLAIN VIEW EXCEPTION
An officer in a lawful vantage point may seize items in plain view w/o a warrant if their incriminating nature is immediately apparent
Crim Pro - AUTOMOBILE EXCEPTION
Warrant is not required if police have PC to believe evidence of a crime or contraband is inside when the vehicle is found being, or readily capable of being, used on the highways or stationary in a place not regularly used for residential purposes.
Extends to any containers w/in the vehicle that might contain the contraband.
Crim Pro - SEARCH INCIDENT TO LAWFUL ARREST
LAWFUL ARREST
1) Warrant OR
2) In public when officer sees ∆ commit felony or misdemeanor OR has PC to believe ∆ is/has committed a felony
SEARCH
1) Must take place in connection w/ or immediately after
2) Area searched is w/in wingspan of arrestee
3) When arrestee is not secured UNLESS it is reasonable to believe evidence of the offense of arrest may be found in the vehicle
Crim Pro - INVENTORY SEARCH
Police may conduct a thorough inventory search or an arrestee when he is booked pursuant to established department procedure.
Crim Pro - EXIGENT CIRCUMSTANCES
Threat that, if the time is taken to obtain a warrant, evidence will be lost or destroyed.
Crim Pro - EXCLUSIONARY RULE EXCEPTIONS
1) Impeach ∆ who testifies
2) Independent source
3) inevitable discovery
4) attenuation of the taint
5) police acted in good faith reliance on facially valid warrant
6) fed habeus, civil tax, grand jury, civil deportation, or parole revocation hearing
7) knock and announce violations
Crim Pro - 14TH A CONFESSIONS
Whether confession was voluntary, looking at the totality of the circumstances.
Involuntary confessions are inadmissible for ANY purpose.
Crim Pro - 6TH A CONFESSIONS
Prohibits DELIBERATE ELICITATION of incriminating statements w/o the presence of an attorney after the INITIATION of adversary judicial proceedings.
Offense specific - police may continue to question ∆ on other, even factually related, charges.
Crim Pro - 5TH A CONFESSIONS
Prosecution may not use statement stemming from CUSTODIAL INTERROGATION of ∆ unless he was given Miranda warnings prior to questioning.
CUSTODY = seizure or other functional equivalent of arrest
INTERROGATION = direct questioning or any statement or conduct by police that they should know are reasonably likely to elicit an incriminating response
Crim Pro - PUBLIC SAFETY EXCEPTION
When the primary purpose of the questioning is to protect the police or public from an imminent danger of serious harm, the suspect’s statements are admissible even w/o a Miranda warning or waiver.
Crim Pro - 5TH A RE-INITIATION OF QUESTIONING
RIGHT TO SILENCE
Once invoked, questioning must immediately cease and may only be re-initiated after a reasonable amount of time and only as to a separate crime
RIGHT TO ATTY
Once invoked, questioning may not be initiated absent the presence of counsel UNLESS accused himself re-initiates communication OR is 1st released into the general prison population for at least 14 days and re-Mirandized.
Crim Pro - IDENTIFICATIONS
6th A = right to counsel at post-charge corporeal lineup
14th A = can’t be so unnecessarily suggestive as to create a very substantial likelihood of irreparable misidentification
1) opportunity to view at scene
2) degree of attention
3) accuracy of description
4) degree of certainty
5) time between crime and ID
Subsequent IDS are suppressed as fruit unless prosecution can show by C+CE that it is independent of the tainted out of court ID
Crim Pro - INFORMANTS
5th A = not interrogation unless KNOWN law enforcement
6th A = violated when:
1) paid gov’t informant is place deliberately in ∆’s cell
2) after ∆ has been charged, and
3) is not merely silent, but deliberately elicits statements regarding the charged crime
Crim Pro - RIGHT TO SPEEDY TRIAL
Attaches when ∆ is arrested and held to answer for a crime or formally charged.
Remedy = dismissal w/ prejudice
FACTORS:
1) length of delay
2) reason for delay
3) whether ∆ asserted
4) prejudice to ∆
Crim Pro - PLEAS
Must be voluntary and intelligently made.
Just must advise ∆ personally, on the record, and in open court of:
1) nature of charge
2) critical elements of the offense
3) Maximum possible penalty and any mandatory minimum
4) that he has a right to plead not guilty and that pleading guilty waives his right to a jury trial
Crim Pro - INEFFECTIVE ASSISTANCE OF COUNSEL
∆ may not be IMPRISONED for any offense w/o the assistance of counsel, absent a waiver.
∆ must show:
1) atty’s exercise of judgment and representation fell significantly below the reasonable standard of care, AND
2) but for this failure, he would not have been convicted
Crim Pro - RIGHT TO JURY TRIAL
In any crim proceeding where ∆ faces a POTENTIAL sentence of longer than 6 months.
Includes right to jury SELECTED from a fair cross-section of the community.
Crim Pro - DOUBLE JEOPARDY
Prohibits trial more than once for the SAME OFFENSE by the SAME SOVEREIGN.
Jeopardy attached:
- In jury trial, when the jury is impaneled and sworn
- In bench trial, when 1st W is sworn and the court begins to hear evidence
Crim Pro - RIGHT TO REPRESENT SELF
On request of accused, ct must determine whether:
1) request is knowingly and intelligently made
2) he is competent to represent himself in that he has a factual and rational understanding of the proceeding
