Crim Pro Flashcards

Question

Inherently Public Things

Answer 1

No REOP for inherently public things | • E.g., handwriting, voice, location, odors, public records, things viewable from public space, garbage placed outside

Answer 2

REOP always exists if D either: a) Owns, has a right to possess, or lives in the premises to be searched, or b) Is an overnight guest of the premises to be searched

Answer 3

Based on Probable Cause Precise on its Face Issued by a Neutral and Detached Magistrate

Answer 4

» Usually a police affidavit demonstrating probable cause that the search or seizure will produce evidence » Affidavits: • Must contain facts showing probable cause • May include information from anonymous sources (i.e., informants) • If based on false information, warrant is invalid

Answer 5

Warrant must describe, with reasonable precision, the place to be searched and/or items to be seized

Answer 6

If this requirement is violated, evidence seized cannot be admitted under the good faith reliance exception

Answer 7

Search warrant must be executed without unreasonable delay after it is issued

Answer 8

Police must knock and announce their purpose, then wait a reasonable time for admittance before entering on their own accord • Exception — knock and announce is not required if officers have reasonable suspicion that announcing their presence would be dangerous, futile, or would inhibit the investigation

Answer 9

Police can seize any evidence of criminal activity they discover, even if not included in the warrant • Basis is plain view exception to search warrants (see card 49) • Police can detain people found on the searched premises » But police cannot search detained persons unless they are specifically named in the warrant or a valid warrantless search exception exists

Answer 10

Police may search a lawfully arrested person and his immediate surrounding area without a warrant Requirements: 1) Arrest must be lawful 2) Search must be contemporaneous with the arrest 3) Search must be limited to area within suspect’s immediate reach or movement (i.e., where he could obtain weapons or destroy evidence)

Answer 11

Police may sweep an area for officer safety or with reasonable belief that accomplices may be present

Answer 12

Police may make an inventory search of arrestee’s belongings (i.e., they can take items to the police station to be searched)

Answer 13

After arresting occupant, police may search the vehicle’s interior, including glove box, if at the time of the search: a) Arrestee is unsecured and may access the vehicle interior, or b) They reasonably believe evidence of the crime for which the arrest was made may be found in vehicle • Police cannot search trunk without probable cause or consent

Answer 14

Police may search from any place where they are legitimately | present when viewing (i.e., when conducting the search)

Answer 15

Police may seize evidence in plain view without a warrant if: 1) Police are legitimately on the premises from which they viewed the evidence to be seized 2) Criminal activity or contraband is immediately apparent 3) Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime

Answer 16

Police cannot use technology not generally available to the public to view evidence that may constitute a plain view search (e.g., infrared scanners that can view through walls) » Note — use of drones for plain view searches is unsettled law and thus unlikely to appear on the MBE

Answer 17

1) Voluntarily and intelligently made » Police cannot lie or deceive to obtain consent » Police have no obligation to inform suspects that they have a right to refuse consent 2) Person giving consent has authority to consent » Authority to consent must be reasonably apparent

Answer 18

Can be limited by consenting party | • Violation of scope renders the entire search non-consenting

Answer 19

Allowed if there is authority to consent • Where multiple people have property rights (e.g., ownership, authorized use, occupancy), any single one can consent to the search of any area where they have authority to consent • A resident’s right to consent trumps a non-resident » E.g., if both a tenant and landlord are present, the tenant’s refusal trumps the landlord’s consent • Scope of consent is dictated by the person present with highest authority to consent • Refusal trumps consent — no consent if two persons with equal right to possession disagree on consent

Answer 20

If probable cause exists, police may search an entire vehicle (including the trunk) and containers or compartments inside that may contain the evidence they are searching for

Answer 21

Police must have probable cause to search the vehicle • Probable cause must arise before the search begins » I.e., probable cause must arise based on something between the vehicle stop and the search

Answer 22

Police may search passengers and their belongings • Packages & containers in vehicle — police may open packages, containers, or luggage that might contain evidence relating to the reason they searched the vehicle » Police may also tow the vehicle and search such containers at a later time

Answer 23

Reasonable suspicion required • To stop or pull over a vehicle, police must have reasonable suspicion that a law has been violated

Answer 24

Must relate to a vehicle-specific purpose • A police checkpoint/roadblock that stops cars without individualized suspicion (e.g., DUI checkpoints), must: a) Stop cars using a neutral, articulable standard (e.g., every fourth car) b) Serve purposes related to automobiles and their mobility

Answer 25

Detention must be no longer than necessary to verify the suspicion • Frisk — if police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons » Plain feel — if police have reasonable belief during the frisk that what they feel is a weapon or contraband, they may seize the suspected item • Officers cannot manipulate the item to develop reasonable belief — it must be plain touch only • Evidence validly seized is admissible

Answer 26

Hot Pursuit Evanescent Evidence Emergency

Answer 27

While actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection

Answer 28

Police can search or seize evidence that would be at risk of disappearing if police were required to secure a warrant • E.g., drugs that may be discarded, DNA evidence that may not last

Answer 29

``` Police can search or seize evidence if justified by emergency circumstances (e.g., a bomb threat or act of terrorism) ```

Answer 30

Govt. agencies may conduct routine searches or inspections A warrant is required for inspections of private residences or commercial buildings » Requires less particularity than standard warrants » A general and neutral enforcement plan for the searches will suffice to validate the warrant

Answer 31

To conduct a search, school officials must have reasonable grounds the search is necessary (less burdensome than probable cause). A school search is reasonable if: 1) Search offers moderate chance of finding evidence of wrongdoing; 2) Procedure for searching is reasonably related to objectives of the search; and 3) Search is not excessively intrusive • Drug tests — random urinalysis permitted for public school students participating in extracurricular activities

Answer 32

At borders, officials may conduct routine searches of persons and their effects (including vehicles) without a warrant, probable cause, or reasonable suspicion » Border = any place where one can arrive in the U.S. from a foreign country (e.g., there is a “border” at Denver International Airport)

Answer 33

Reasonable suspicion required | • Officials may detain a traveler at the border if they have reasonable suspicion she is smuggling contraband

Answer 34

Officials can open and inspect international mail if they have reasonable suspicion it contains contraband

Answer 35

Officials may raid a business to determine citizenship status of its employees

Answer 36

Electronic surveillance (e.g., wiretapping, eavesdropping) that violates a reasonable expectation of privacy constitutes a search under the 4th Amend. and requires a warrant

Answer 37

1) Probable cause that a specific crime is being or has been committed 2) Warrant must name suspects subject to surveillance 3) Warrant must describe with particularity the subject of conversations that can be surveilled 4) Surveillance must be limited to short periods of time 5) Surveillance must terminate when desired information is obtained and must be turned over to the court

Answer 38

Any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself

Answer 39

Privilege only available for compelled testimonial or communicative evidence • Testimonial = verbal or otherwise communicative evidence » Lineups and physical evidence — not testimonial • Compelled = elicited or induced » Evidence produced from D’s free will is not compelled (e.g., D’s diary is not compelled) » Lie detector tests, custodial interrogations, etc. are compelled and 5th Amend. privilege will apply

Answer 40

1) Grant of immunity — govt. can grant immunity from prosecution for self-incriminating testimony 2) Incrimination is not possible — e.g., the statute of limitations has run 3) Extinguished by waiver — D waives the privilege

Answer 41

Those in custody must be informed of Miranda rights prior to interrogation; otherwise subsequent statements are inadmissible Miranda only applies when accused is in custody and interrogated

Answer 42

Objective view the accused is not free to leave

Answer 43

Statements by police likely to elicit incriminating responses » Unsolicited statements are not protected » Note — routine questioning (e.g., during booking or a probation interview) is not considered interrogation » Public safety exception — police may interrogate suspects without giving Miranda warnings if necessary for public safety (e.g., D

Answer 44

1) A right to remain silent 2) Anything said can be used against him 3) He has a right to the presence of an attorney, and 4) One will be appointed if he cannot afford one • Substantial compliance in reading warnings is sufficient • Failure to give warnings implicates 5th Amend., not 6th Amend.

Answer 45

Police must cease all questions • Only the accused can re-initiate dialogue • Police may later question accused about unrelated crimes

Answer 46

Police must cease all questions on any topic until counsel is provided and present. If accused initiates communication, interrogation is allowed

Answer 47

Waiver must be: 1) Knowing 2) Voluntary — must be a clear verbal waiver 3) Intelligently made • Burden is on prosecution to prove waiver was valid

Answer 48

A D cannot be retried for the same offense once jeopardy has attached; arises when a D charged with one crime is charged with another crime based on the same offense

Answer 49

Offenses are different if conviction for one offense requires proof of an element not included in the other offense • Different offense — e.g., first offense requires proof of A & B; second offense requires proof of A, C, & D • Same offense — e.g., first offense requires proof of A, B, & C; second offense requires proof of A & B

Answer 50

» New evidence for greater offense becomes available | » D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery

Answer 51

Jury trial — once jury is impanelled and sworn in • Bench trial — once first witness is sworn in • Civil trial — jeopardy is not applicable

Answer 52

Once jeopardy has attached, retrial is still allowed if: 1) Hung jury 2) Mistrial due to manifest necessity » Occurs when D’s original trial is aborted for some reason (e.g., D is too ill to continue) 3) Retrial after a successful appeal by D » D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict 4) D breaches a plea bargain agreement 5) Separate sovereigns » D can be tried for the same crime in different states » D can be tried for the same crime in federal and state court

Answer 53

Once 6th Amend. right to counsel attaches, police may not elicit incriminating statements outside the presence of D’s counsel • Application — right attaches once charges have been filed and applies to all subsequent stages of judicial proceeding. The right is offense-specific » Police can question D about any other crime without violating D’s 6th Amend. rights

Answer 54

A suspect has a right to counsel at any post-charge, in-person lineup or show-up • Does not apply to non-live identification procedures (e.g., photographic lineups, fingerprinting) • Lineup — witness is shown several possible suspects • Show-up — witness is asked to identify a single suspect

Answer 55

D may move to suppress any subsequent in-trial identifications made by the witness

Answer 56

Required to determine if there is probable cause to detain the suspect • Required if: 1) Arrestee is incarcerated, and 2) There has not been a grand jury or other judicial determination of probable cause • Must occur within 48 hours of detention

Answer 57

Must be set no higher than necessary to ensure D will appear at trial • Detention without bail is constitutional, but any decision to refuse bail is immediately appealable

Answer 58

Grand juries are required in federal court under the 5th Amend. and are used to determine whether there is sufficient probable cause to bring charges against a suspect • Prosecutors present their cases to the grand jury, which votes to issue an indictment if they find probable cause

Answer 59

Secret • Suspect has no right to confront witnesses or attend proceedings • Witnesses are not entitled to Miranda warnings • Witnesses may not challenge a subpoena » But they may refuse to testify under the 5th Amend. • Exclusionary rule does not apply

Answer 60

The 6th Amend. guarantees D the right to a speedy trial • Protects D from unreasonable delay between the time charges are filed and the beginning of trial • Right attaches once D has been arrested or charged

Answer 61

Determined by the totality of the circumstances • Courts look at the following factors: 1) Length of delay 2) Reason for delay — did D contribute to the delay? 3) Whether D asserted his right to a speedy trial 4) Whether the delay has prejudiced D • Remedy for violation = dismissal of case with prejudice

Answer 62

6th Amend. provides right to a jury trial for all “serious offenses” • Serious offense — one that authorizes a sentence of imprisonment for more than 6 months

Answer 63

Jury size and unanimity — jury must contain at least 6 jurors » There is no constitutional right to a unanimous verdict » However, a 6-member jury verdict must be unanimous » 11-1, 10-2, and 9-3 jury verdicts have been upheld

Answer 64

D can question potential jurors on possible prejudices if relevant to the case (e.g., racial biases, feelings on the death penalty) » D can challenge for cause based on prejudices and has unlimited challenges for cause if relevant to the case

Answer 65

Cannot be used to exclude jurors on account of race or gender (violates equal protection)

Answer 66

6th Amend. gives Ds the right to confront adverse witnesses Confrontation — D has a right to have adverse witnesses testify in-person and subject to cross-examination • In-person testimony not required if: 1) Exclusion is necessary for public policy, and 2) Reliability of the testimony is otherwise assured

Answer 67

A co-D’s confession implicating D is inadmissible against D at a joint jury trial (OK at bench trial) • Exceptions — confession of a co-D is admissible if either: a) Confessing co-D testifies subject to cross-examination; b) Ds have separate trials; c) Confession is edited so that all portions referring to the co-D are eliminated; or d) Co-D’s confession is used to rebut D’s claim that his confession was obtained coercively

Answer 68

1) Statute allowing death penalty must not be unconstitutionally vague 2) Jury must be allowed to consider mitigating circumstances » E.g., D’s abusive childhood, mental impairment, etc. 3) There must be at least one “aggravating circumstance” (e.g., prior convictions) supporting the sentence

Answer 69

Death penalty cannot be imposed if either: 1) D was under 18 years old when the crime was committed; 2) D is mentally disabled (i.e., has mental retardation); 3) D is insane at the time of execution; or 4) The conviction was for felony murder, and: a) D was not a major participant, or b) D did not act with depraved indifference to human life

Answer 70

1) Judge must determine plea is voluntary and intelligently made 2) Judge must ensure that D understands: a) Nature of the charge and its critical elements b) Maximum authorized penalty and any mandatory sentence c) That D has a right to plead not guilty d) That D is waiving his right to a jury trial

Answer 71

Appellate courts will not disturb valid pleas unless: 1) Plea was made involuntarily (e.g.., due to a misunderstanding) 2) The court that took the plea lacked jurisdiction 3) D had ineffective assistance of counsel 4) The prosecutor failed to honor the plea