Crim Pro - AMP

Question 1

4th Amendment rule on seizures . . .

Answer 1

Individuals have a right to be free of “unreasonable… seizures.” This rule covers both seizures ofproperty and seizures ofthe person.

Question 2

When does a seizure of property occur?

Answer 2

A seizure ofproperty occurs when the government meaningfully interferes with a
person POSSESSORY INTEREST in the property.

Question 2

EXAMPLE: Seeking to track a suspected drug dealer to his hidden lair, the police place a tracking device on a canister ofchemicals used for drug production and arrange to have an informant give the suspect the canister. They then follow the suspect to his lair, using the tracking device. Did the police SEIZE the canister by placing the tracker on it?

Answer 2

No, b/c the suspect retains full possession of the canister.

Question 2

When does a seizure of a person occur?

Answer 2

When a reasonable person would not feel free to terminate the encounter with the police.

Question 2

What are the bases for seizure of a person?

Answer 2

1. physical restraint (even if unsuccessful - even if grabbed shoulder and ran away b/c physical force.
2. show of authority + submission (stop in the name of the law +
   I don’t stop = NO seizure)

Question 2

Under section 90 of the Restatement (Second) of Contracts, a promisee could enforce a promise if . . .

Answer 2

1. he reasonably and foreseeably relied on the promise2. detrimental

Question 3

What are the police free to do and not create a seizure of a person?

Answer 3

consensual interviews (ex. would you be willing
to answer a few questions) without any belief of criminal activity whatsoever.

Question 3

What are the types of seizures?

Answer 3

Arrests and Terry Stops

Question 3

When does an arrest occur?

Answer 3

D is taken into custody for prosecution OR interrogation

Question 3

What must be the basis for an arrest?

Answer 3

PC

Question 3

If there is an anticipatory repudiation, then the nonbreaching party can . . .

Answer 3

(i) sue for damages, (ii) contract with a third party, or (iii) do nothing.

Question 4

What is PC for an arrest?

Answer 4

There must be trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.

Question 4

Is hearsay permissible to get PC for an arrest warrant?

Answer 4

Yes

Question 4

Can the police arrest a person based on probable cause that she
committed an offense that can only result in a fine?

Answer 4

Yes.

Question 4

If the buyer became insolvent, the manufacturer could, under the U.C.C., require that . . .

Answer 4

the buyer pay cash upon delivery or give assurances of payment.

Question 5

Ex.: D is arrested for driving while not wearing a seatbelt, a violation that can result only in assessment of a fine. Valid arrest?

Answer 5

The police arrest a person based on probable cause that she committed an offense that can only result in a fine

Yes. (as long as they have probable cause
it’s a valid arrest, EVEN IF IT VIOLATES
STATE LAW)

Question 5

When is a warrantless arrest permitted?

Answer 5

A warrant generally is not required before

arresting a person in a public place, even if the police have plenty to obtain one.

Question 5

Ex.: Police obtain probable cause that defendant robbed a gas station. They learn where he lives and works, but wait three months before arresting him on a public sidewalk, with no warrant.
Valid arrest?

Answer 5

A warrant generally is not required before
arresting a person in a public place, even if the police have plenty to obtain one.

Yes. Doesn’t matter that had time to get one; public place

Question 5

At common law, murder was _______, which is established by_______.

Answer 5

the killing of a human being with malice aforethought. The mental state of malice aforethought could be established with any one of the following states of mind: (i) intent to kill; (ii) intent to cause serious bodily harm; (iii) reckless indifference to an unjustifiably high risk to human life (“depraved heart”); or (iv) the intent to commit a dangerous felony (“felony murder”).

Question 6

When is a warrant required for an arrest?

Answer 6

1. in home arrest (w/ exceptions)

2. home of a third party

Question 6

What are the exceptions to the warrant requirement for in-home arrests?

Answer 6

a. EXIGENCY
1. risk that the D will escape if the police do not enter the home to arrest
(“hot pursuit of fleeing felon”)
2. avert danger to the police or any person
3. risk that the D will destroy evidence if police have to take the time to get
a warrant (drug dealer has drugs in the house and knows that they are going
to get a warrant)
b. CONSENT to enter the home

Question 6

When can the police arrest someone in the home of a third party?

Answer 6

Police cannot search for the subject of
an arrest warrant in the home of a third party. Police must either:

i. obtain a search warrant for the subject, specifying his location in the third party’s home,
ii. secure consent to search the premises from the third party homeowner, or
iii. enter on the basis of exigent circumstances. (same as above)

Question 6

When are investigative detentions (Terry Stops) permissible?

Answer 6

The police may detain a PERSON or seize PROPERTY for investigative purposes if they
have a REASONABLE SUSPICION (less than PC) of criminal activity in a completed crime supported by articulable facts. This is a “stop.”

Question 6

What is the permissible scope of a Terry Stop?

Answer 6

a. The stop must be no longer than necessary to conduct a LIMITED INVESTIGATION to verify or dispel the suspicion. (few questions; brief pat-down; dog sniff)
b. The police must be diligent in pursuing this investigation.

Question 6

EX: Police in Los Angeles reasonably suspect that Joe Playa is carrying narcotics in a briefcase on a flight to New York’s LaGuardia airport, and call New York Police to inform them. Six hours later, when the plane arrives, they ask Playa for consent to search his briefcase. When he refuses, they tell him he will have to wait 90 minutes until drug-sniffing dogs can be brought over from Kennedy airport, or leave the bag with them. Valid Terry stop?

Answer 6

No. Because the police were not diligent (they had 6 hours notice he was coming; had plenty of time to get the dogs; chose to hope D would consent)

Question 6

An accomplice is one who . . .

Answer 6

1. with the intent that the crime be committed, 2. aids, counsels, or encouragesthe principal3. before or during the commission of the crime.

Question 7

What can the police do during a Terry Stop?

Answer 7

1. ask persons to identify themselves (provide license)
2. arrest suspects for failure to comply
3. the stop may turn into an arrest if the police develop PC that D committed a crime
4. “frisk.. (Terry “frisk”) for weapons if they have a RS that the D is armed and dangerous

Question 7

Stopping a car for a traffic violation is a . . .

Answer 7

seizure for 4th purposes.

Question 7

What must police have for automobile stops and why?

Answer 7

(special Terry Stop)

RS or PC because stopping a car for a traffic violation is a seizure for 4th purposes.

Both the driver and the passengers are seized.

Question 7

Who is seized during an automobile stop?

Answer 7

Passengers and driver

Question 7

The exclusionary rule does not apply in . . .

Answer 7

grand jury proceedings. According to United States v. Calandra (1974), illegally seized evidence is admissible in grand jury proceedings.

Question 8

What can the police ask you to do during an automobile stop?

Answer 8

For safety reasons, police can order both the driver and any passengers (even w/out RS or PC with out of the vehicle.

Question 8

Merely being a passenger in someone else’s car does not . . .

Answer 8

create a legitimate expectation of privacy with regard to a search of the car. Something more is needed to have standing to challenge the search, such as if the roommate owned the car (not indicated by the facts).

Question 9

What is a pre-textual stop?

Answer 9

If police have probable cause or reasonable suspicion to justify the auto stop, they can do so even if they are actually motivated by a desire to investigate some other offense (as to which they lack any reasonable suspicion or probable cause).

NOTE: (race is not a 4th so evidence not excluded)

Question 9

Police have the authority to briefly detain a person for _____ even if they lack probable cause to arrest. To make such a stop, police must have _____. When the source of suspicion of criminal activity is an informant’s tip, the tip _____.

Answer 9

a. investigative purposesb. a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crimec. must be accompanied by indicia of reliability sufficient to make the officer’s stop reasonableHere, the stop was based solely on an informant’s tip. Because the tip was anonymous and included nothing more than an accusation that a person standing on a certain street corner was selling drugs, it was not sufficient to justify the search. It needed to include more detail (e.g., predicting incriminating movement) to corroborate the accusation.

Question 10

What is it called if police have probable cause or reasonable suspicion to justify the auto stop, they can do so even if they are actually motivated by a desire to investigate some other offense (as to which they lack any reasonable suspicion or probable cause).

Answer 10

Pretextual stop.

Question 10

A school search will be held reasonable if . . .

Answer 10

(i) it offers a moderate chance of finding evidence of wrongdoing; (ii) the measures adopted to carry out the search are reasonably related to the objectives of the search; and (iii) the search is not excessively intru- sive in light of the age and sex of the student and the nature of the infraction. Here, even though the principal did not have probable cause to believe that the drugs were in the student’s purse, the principal did have sufficient reasonable grounds to search her purse.

Question 11

What is required for a station house detention?

Answer 11

Police must have probable cause to believe a suspect has committed an offense to bring a suspect to the station for questioning or
fingerprinting.

Question 11

Once the government has initiated adversary judicial criminal proceedings, the presence of counsel is a prerequisite to the conduct of a line-up. This right attaches . . .

Answer 11

as soon as the accused is within sight of a potential identification witness.

Question 12

The Tenth Amendment prohibits Congress from . . .

Answer 12

Commandeering state officials such as by requiring them to do background checks on prospective handgun owners. Under the Tenth Amendment, the federal government may not require states to regulate their own citizens.

Question 13

Grant of a writ of certiorari requires the agreement of at least . . .

Answer 13

four justices

Question 14

If more than _______ months imprisonment is authorized, the offense is considered “serious” for determining whether a defendant has a constitutional right to a jury trial.

Answer 14

6
An offense is considered serious, making a jury trial a constitutional right, when more than six months imprisonment is authorized.

Question 15

Cases by three-judge federal district court panels that grant or deny injunctive relief fall within the ________ jurisdiction of the Supreme Court.

Answer 15

mandatory appellate jurisdiction

Question 16

The Fifth Amendment privilege protects what kind of evidence?

Answer 16

The Fifth Amendment privilege protects testimonial or communicative evidence. For a communication to be considered testimonial, it must explicitly relate a factual assertion or disclose information. Writing down one’s bank accounts would disclose information and thus be considered testimonial, permitting the person to raise the privilege. A person, however, may NOT refuse to produce a handwriting exemplar or a blood sample. The Fifth Amendment privilege does not protect real or physical evidence, so a state may require a person to produce blood samples, handwriting exemplars, or voice samples. A person also may NOT refuse to produce a subpoenaed document. A person served with a subpoena requiring production of a document cannot refuse to comply based on the Fifth Amendment privilege, because the act of producing the document is not testimonial.

Question 17

With regard to the use of immunity to compel testimony, a state cannot use immunity to compel testimony unless

Answer 17

the immunity also applies in a federal prosecution.Therefore, federal prosecutors may not use evidence obtained as a result of a state grant of immunity, and vice versa.Testimony obtained by a promise of immunity MAY be used in a prosecution for perjury committed during the immunized testimony.A grant of use and derivative use immunity does NOT guarantee immunity from prosecution for any crimes. Transactional immunity guarantees immunity from prosecution for any crimes related to the transaction about which the witness testifies.Transactional immunity does NOT allow the witness to be prosecuted from evidence derived from an independent source. Use and derivative use immunity allows the witness to be prosecuted if the prosecutor can show evidence was derived from a source independent of the immunized testimony.

Question 18

The Blockburger test generally prohibits . . .

Answer 18

multiple punishments for the same offense.

Question 19

The Blockburger test generally prohibits multiple punishments for the same offense. The exception to this rule is . . .

Answer 19

where the offenses are intended to carry separate punishments and are imposed at a single trial. This is true even though the offenses constitute the same crime under the Blockburger test. This rule requires imposing the punishments at a single trial, not at different trials.

Question 20

The doctrine of collateral estoppel prohibits a defendant from being tried or convicted of a crime if:

Answer 20

A prior prosecution resulted in a factual determination inconsistent with one required for conviction. For example, if a defendant was charged with robbing an individual poker player and acquitted for insufficient evidence as to identity, the defendant cannot afterward be charged with robbery of a different poker player at the same table.If a prior prosecution resulted in a mistrial because of a hung jury or because a conviction was reversed on appeal, the Double Jeopardy Clause (not collateral estoppel) is at issue.

Question 21

Under the Double Jeopardy Clause, a defendant cannot be retried for the same offense. The Court in Blockburger v. United States stated a test to determine what is “the same offense.”What is the best explanation of the Blockburger test?

Answer 21

Two crimes do not constitute the same offense if each crime requires proof of an element that the other crime does not require

Question 22

Defendant signed a confession to a crime at the police station shortly after his arrest.Is this confession sufficient in and of itself to convict Defendant?

Answer 22

No, a criminal conviction cannot rest entirely on an uncorroborated extrajudicial confession. If the defendant does not admit guilt in court, the prosecution must introduce extrinsic evidence that, at the least, tends to establish the trustworthiness of the admission.

Question 23

Prior to accepting the guilty plea, the judge must . . .

Answer 23

The judge must determine that the plea is voluntary and intelligent. The judge must also ensure that the defendant knows and understands the nature of the charge and the crucial elements of the crime, along with the maximum penalty and any mandatory minimum penalty. The judge also must ensure that the defendant understands his right to plead not guilty and that he waives the right to trial if he does plead guilty.

Question 24

n _______ cases, the fact that the defendant and victim are of different races automatically entitles the defendant to question a prospective juror on racial bias.

Answer 24

capitalIn noncapital cases, regardless of whether they involve felonies or misedemeanors, the interracial aspect of the crime alone is not sufficient to allow questioning on racial bias.

Question 25

When does a penalty constitute cruel and unusual punishment in violation of the Eighth Amendment?

Answer 25

When it is grossly disproportionate to the offense committed

Question 26

The constitutional right to a jury trial in criminal cases applies __________ offenses.

Answer 26

Only to serious

Question 27

If a defendant successfully appeals his conviction and is retried by the same judge and again convicted, under what circumstances (if any) may a judge impose a sentence harsher than the original sentence?

Answer 27

Only if the sentence is based on conduct on the part of the defendant occurring after the original sentencing proceedings.The purpose of this rule is to ensure that the judge des not impose a harsher sentence out of vindictiveness. (Note that the rule does not apply if the second trial is de novo by a different judge or the sentence is imposed by a jury who were not told of the first sentence.)

Question 28

Under Miranda, if a detainee makes a request for counsel but the request is ambiguous, the police . . .

Answer 28

May continue questioning

Question 29

If a defendant files a motion to suppress his confession claiming that he did not waive his Miranda rights, the government must show that the Miranda waiver was:

Answer 29

Voluntary and knowing (and the standard is by a preponderance of the evidence)The Supreme Court has held that to be a valid waiver of rights under Miranda, the government must show by a preponderance of evidence that the waiver was voluntary and knowing. However, if a detainee chooses to speak after being given Miranda warnings, a valid waiver usually will be found.NOTE: A valid waiver does not require a written acknowledgment. If a detainee received Miranda warnings and then chose to answer questions, that is a sufficient waiver of rights.

Question 30

Miranda warnings may need to be given, depending on whether the suspect knows this person is employed by the police. Miranda generally applies only to interrogation by the publicly paid police. It does not apply where . . .

Answer 30

interrogation is by an informant who the defendant does not know is working for the police. The rationale is that the warnings are intended to offset the coercive nature of police-dominated interrogation, and if the defendant does not know that he is being interrogated by the police, there is no coercive atmosphere to offset.

Question 31

What will a grand jury issue if it determines that the evidence provides probable cause to prosecute?

Answer 31

A true bill

Question 32

A Gerstein hearing is . . .

Answer 32

a hearing to determine probable cause to hold a detainee who was arrested without a prior finding of probable cause (e.g., if the arrest was not pursuant to an arrest warrant or grand jury indictment).

Question 33

A witness subpoenaed to testify before a grand jury has no right to:

Answer 33

Counsel in the courtroom, Miranda warnings, or warnings that she is a potential defendant.

Question 34

5th vs. 6th Amendment . . .

Answer 34

A defendant’s right to counsel at trial is provided for by the Sixth Amendment. The Supreme Court has read a right to counsel into the Fifth Amendment, but the right applies at custodial interrogations by the police; it does not apply at trial.

Question 35

The primary purpose of a preliminary hearing is to:

Answer 35

Determine whether probable cause for detention existsA defendant has a Fourth Amendment right to be released from detention if there is no probable cause to hold him. The purpose of a preliminary hearing is to determine whether probable cause for detention exists.A defendant does not have the right to cross-examine witnesses at a preliminary hearing. A preliminary hearing is an informal, ex parte, nonadversarial proceeding.

Question 36

A defendant has a right to be released from pretrial detention unless there is __________.

Answer 36

Probable cause to detain him.A defendant has a Fourth Amendment right to be released from detention if there is no probable cause to detain him. Thus, a defendant has a right to a determination of probable cause. There need not be: Proof of guilt by at least a preponderance of the evidence; Clear and convincing evidence to detain him; or Proof of guilt beyond a reasonable doubt.

Question 37

The Supreme Court has held that a person does not have a reasonable expectation of privacy in the following things held out to the public:

Answer 37

(i) The sound of one’s voice; (ii) The smell of one’s luggage (but note that the feel of one’s luggage is protected); (iii) One’s handwriting; (iv) The movement of one’s car on a public road (even if detection of movement requires use of a tracking device placed on the car); (v) Account records held by a bank; (vi) The paint on the outside of one’s car; and (vii) Magazines one offers for sale.

Question 38

May a police officer ever stop an automobile for investigatory purposes without reasonable suspicion to investigate?

Answer 38

Yes, the police may stop automobiles on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles. Generally, to make an investigatory stop of an automobile, the police must have at least reasonable suspicion that the driver or an occupant violated or was about to violate some law (i.e., the normal Terry standard). However, the Supreme Court has recognized that the mobility of automobiles can cause special problems. The Court allows the police to set up roadblocks to stop automobiles even without individualized suspicion to investigate these problems. A good example would be a roadblock that stops every car or every third car to determine whether the drivers are intoxicated.

Question 39

When making a Terry stop, a police officer may conduct a pat down of the suspect’s outer clothing . . .

Answer 39

to search for weapons if the officer has reason to believe that the suspect is armed and dangerous. The rationale here, obviously, is to protect the police officer. It is not permissible for the officer to search automatically to discover weapons. An officer may perform a pat down only if the officer has reason to believe that the suspect is armed and dangerous. Similarly, the officer may not search automatically to discover weapons, contraband, or fruits, instrumentalities, or evidence of crime. The officer may search only for weapons and only if the officer has a reason to believe that the suspect is armed and dangerous Nor is it permissible for the officer to search for more than weapons if the officer has reason to believe that the suspect is concealing such items. Generally the search is only for weapons. An officer may seize an item that does not feel like a weapon only if by its plain feel or smell the officer immediately recognizes it—without manipulation—as contraband.