Crim Pro - MEE

Question 1

4th Amendment Issues

Answer 1

• Government conduct/StateAction
• Reasonable expectation of privacy
• Seizure of persons
• Warrant requirement
• Exceptions to warrant requirement (ESCAPES)
  
  • Exigent circumstances
  • Search incident to lawful arrest
  • Consent
  • Automobile exception
  • Plain view
  • Stop and frisk
• Exclusionary rule: Fruit of the poisonous tree & exceptions

Question 2

5th Amendment Issues

Answer 2

Miranda Rights and Custodial Interrogation

Question 3

6th Amendment Issues

Answer 3

Right to Counsel

Question 4

What does the 4th amendment prohibit?

Answer 4

Prohibits unreasonable searches and seizures BY THE GOVERNMENT (not private actors)

Question 5

When does a defendant have standing to assert 4th amendment rights?

Answer 5

When they have a reasonable expectation of privacy as to the places searched or items seized.

Question 6

Typical Crim Pro 4th Amendment fact pattern. Analysis

Answer 6

A typical Crim Pro question will start with a seizure of a person, and then a search will occur.

A good answer will walk through each government action chronologically.

Was the seizure okay?
Was the search okay?

Question 7

What is a seizure?

Answer 7

A seizure occurs when a person’s freedom of movement is restrained by means of physical force OR show of authority

Test: Under the totality of the circumstances, would a reasonable person NOT feel free to leave - If so, they are seized.

Question 8

Types of seizure

Answer 8

(1) Arrest
(2) Stop and Frisk
(3) Police checkpoint
(4) Traffic stop

Question 9

When can an arrest occur?

Answer 9

Arrest is valid either:

(1) With an arrest warrant

OR

(2) WITHOUT a warrant IF the officer has PROBABLE CAUSE to believe that a FELONY has been committed

Question 10

When can a stop and frisk occur?

Answer 10

Valid when an officer has REASONABLE SUSPICION that someone is engaged in criminal activity

Question 10

Does an illegal arrest prevent the subsequent prosecution of the arrestee?

Answer 10

No! The person can still be charged.

HOWEVER, evidence obtained as a result of an illegal arrest can be suppressed at trial.

Question 11

When can a police checkpoint occur?

Answer 11

Valid if:
(1) Done in a non-discriminatory manner; AND
(2) There is an automobile-related reason for the checkpoint

Question 12

When can a traffic stop occur?

Answer 12

Valid if the officer has REASONABLE SUSPICION or PROBABLE CAUSE that a traffic law has been violated

Question 13

When does a “search” occur?

Answer 13

When GOVERNMENT conduct violates the defendant’s REASONABLE EXPECTATION OF PRIVACY

Question 14

When is a search valid?

Answer 14

When there is a valid search warrant
OR
An exception applies to the warrant requirement

Question 15

What are the requirements for a valid search warrant?

Answer 15

(1) Issued by a neutral magistrate;
(2) Based upon probable cause; and
(3) Describes with particularity the places to be searched and the items to be seized

Question 16

What happens if the search warrant is defective?

Answer 16

Police execution of the search warrant IN GOOD FAITH will not result in a violation

This is an exception to the exclusionary rule for suppressing evidence (later)

Question 17

Exceptions (ESCAPES) to the warrant requirement

Answer 17

• Exigent Circumstances
• Search Incident to an Arrest
• Consent
• Automobiles
• Plain View
• E - administrative…
• Stop and Frisk

Question 18

Exigent Circumstances

(Exception to the warrant requirement)

Answer 18

Sort of a catch all

Examples:
- Hot pursuit of a fleeing felon
- Danger of destruction of evidence
- Police or public safety

Question 19

Search Incident to an Arrest

(Exception to the warrant requirement)

Answer 19

After a LAWFUL arrest (i.e., there was probable cause), the officer may search arrestee within a REASONABLE SCOPE.

Steps:
- Was there a lawful arrest?
- Was the search within a reasonable scope?

Question 20

Consent

(Exception to the warrant requirement)

Answer 20

Search cannot exceed scope of consent

Consent must be voluntary (no threats, compulsion, or false assertion of lawful authority)

Remember objection of other parties.

Question 21

Automobiles

(Exception to the warrant requirement)

Answer 21

If police have PROBABLE CAUSE to believe a vehicle contains evidence of a crime, can search ANY part of the car believed to have contraband (including trunk)

Question 22

Plain View

(Exception to the warrant requirement)

Answer 22

(1) Police are LAWFULLY PRESENT; and
(2) Incriminating nature of the item is IMMEDIATELY APPARENT

Question 23

Stop and Frisk

(Exception to the warrant requirement)

Answer 23

After a Terry Stop, officer can pat down the outer clothing of the defendant for OFFICER SAFETY (this is a Terry Frisk)

If, during a frisk, the officer can plainly feel an object that is obviously contraband, they can seize that item.

Once the officer finds contraband (during the frisk) that can give risk to probable cause for an arrest.

Question 24

What is a terry frisk in the context of automobiles?

Answer 24

Similar to a regular stop and frisk, a “terry frisk” of an automobile is allowed after a valid stop (i.e., with reasonable suspicion) IF:

• Officer has a reasonable belief there is a WEAPON in the car; AND
• The search is limited to those areas that may contain a weapon.

Once the officer finds contraband (during the frisk) that can give risk to probable cause for an arrest.

Question 25

EXCLUSIONARY RULE

Answer 25

“Evidence obtained in violation of the 4th, 5th, or 6th amendments cannot be introduced at trial to prove a defendant’s guilt.”

Question 26

What is the scope of a search incident to an arrest?

Answer 26

• Defendant and the immediate area (i.e., wingspan)
• In the arrestee’s home (only areas within reach or where others may be hiding)
• In a vehicle: can search glove compartment IF within reach of defendant or if it is reasonable that evidence of the offense of arrest may be found.

Question 27

Fruit of the poisonous tree

Answer 27

The exclusionary rule also applies to evidence obtained as a result of the initial violation

Ex: A police officer illegally searches Defendant (lets say they didn’t have reasonable suspicion for a stop and frisk) and finds a gun. The officer takes the gun but releases Defendant. Later, the officer discovers the gun had been stolen and obtains an arrest warrant. Defendant is arrested one day later for the stolen gun. At the time of arrest, Defendant is searched, and the officer finds cocaine in Defendant’s pocket.

Should the gun and/or the cocaine should be excluded from evidence?

Defendant can move to exclude the gun because it was obtained by an illegal search (i.e., no warrant exception applied). Defendant can also move to exclude the cocaine as fruit of the poisonous tree because the arrest that justified the search was illegal (i.e., the arrest warrant was based entirely on the gun, which was unlawfully obtained evidence).

Question 28

Exceptions to the Exclusionary Rule

Answer 28

1) Inevitable Discovery Rule
2) Independent Source Doctrine
3) Passage of Time (Attenuation)
4) Good Faith Reliance

Question 29

Good Faith Reliance

(Exception to the Exclusionary Rule)

Answer 29

Most important exception

Applies to officers who rely on either:
- an existing law that was later found unconstitutional
OR
- a warrant that, while facially valid, is later found to be defective.
(officer can rely on this warrant unless it was obtained by FRAUD, it was defective on its face, or the magistrate abandoned their judicial role).

Question 30

What does the 5th amendment state?

Answer 30

No person shall be compelled in a criminal case to testify against himself

[Often called the right against self-incrimination]

Question 31

When does the 5th amendment apply in criminal procedure?

Answer 31

Applies to TESTIMONIAL EVIDENCE coercively obtained by police

Miranda Warnings

Question 32

When are Miranda Warnings required?

Answer 32

Prior to (1) CUSTODIAL (2) INTERROGATION

Question 33

When can an officer conduct a Terry Stop and Frisk?

Answer 33

When the officer has a REASONABLE SUSPICION, based on ARTICULABLE FACTS, to believe that the suspect is or is about to be engaged in criminal behavior.

Question 34

What is “custody” for Miranda purposes?

Answer 34

Defendant reasonably believes he is not free to leave or is otherwise deprived of freedom

Question 35

What is “interrogation” for Miranda purposes?

Answer 35

Police expressly question defendant

OR

Police words or actions are likely to elicit an incriminating response

Note: If the defendant does NOT know that he is speaking to a GOVERNMENT AGENT, there is no custodial interrogation under the 5th amendment. However, this might be a violation of 6th amendment right to counsel (if speaking with defendant rather than their counsel)

Question 36

How can a defendant WAIVE their Miranda rights?

Answer 36

Defendant can waive their Miranda rights but the waiver must be knowing and voluntary (cannot be the result of government coercion)

ALSO, may be waived by VOLUNTARY STATEMENTS. After a defendant receives Miranda warnings (and does not invoke the right to remain silent), the defendant might decide to make an UNCOERCED statement to police

This constitutes a waiver of Miranda rights

Note: Police have no obligation to inform the defendant that his attorney is trying to reach him (because he waived his Miranda rights).

Question 37

How can a defendant INVOKE their Miranda rights?

Answer 37

Defendant must make an affirmative statement

Silence is not sufficient to invoke or waive Miranda rights

Question 38

How can a defendant INVOKE their right to COUNSEL?

Answer 38

Defendant must unambiguously assert the right to counsel.

After invoked, police cannot question the defendant any further (even for other offenses) - but see 6th amendment right to counsel (later)

RE-APPROACH

If there is a break in custody for 14 days or more, police may re-approach
the defendant, give fresh Miranda warnings, and attempt to get a waiver for right to counsel.

Question 39

What are a defendant’s Miranda rights?

Answer 39

Right to Counsel (6th A)
Right to remain silent (5th A)

Question 40

How can a defendant INVOKE their right to REMAIN SILENT?

Answer 40

Defendant must unambiguously assert the right to remain silent.

Silence is not sufficient to invoke or waive Miranda rights

RE-APPROACH: After a substantial amount of time has passed, police may re-approach
the defendant, give fresh Miranda warnings, and attempt to get a waiver.

Question 41

Statements NOT protected by Miranda rights

Answer 41

VOLUNTARY CONFESSION
(i.e., uncoerced statement made after defendant receives Miranda warnings and does not invoke the right to remain silent)

Consider the totality of the circumstances:
- Police conduct
- Defendant’s characteristics (age, education, experience) - Timing of statement

SECOND CONFESSION
Occurs when a confession is obtained in violation of Miranda, then later the rights are read, and the defendant waives and confesses again.
This MAY be admissible IF the initial confession was the result of a GOOD FAITH mistake

Question 42

Statements protected by Miranda rights

Answer 42

INVOLUNTARY CONFESSION (coercion)

VOLUNTARY STATEMENTS MADE IN VIOLATION OF MIRANDA (i.e. it was a custodial interrogation)
May NOT be used as substantive evidence, BUT Admissible as impeachment evidence if inconsistent with later testimony (IF D TESTIFIES)

PHYSICAL EVIDENCE
Any physical fruits of a voluntary confession can be ADMISSIBLE evidence. (Exception to the Poisonous Tree Doctrine)

Question 43

What does the 6th Amendment Provide?

Answer 43

Right to Counsel
Right to a Jury Trial

Question 44

When does the 6th A right to counsel apply?

Answer 44

Automatically applies at all critical stages of prosecution after formal proceedings begin (i.e., after an indictment or formal charge)

What are the “critical stages”?
- Post-indictment line-ups
- Questioning by a government informant (even if the defendant is not aware).

Question 45

When does the 5th A right to counsel apply?

Answer 45

This right must be affirmatively invoked

Question 46

Why is 5th Amendment right to counsel NOT offense-specific, but the 6th amendment right to counsel IS offense-specific?

Answer 46

The 5th A is focused on self-incrimination in general.

The 6th A is focused on right to counsel with regard to a criminal proceedings.

Ex: You are charged with burglary, so you have a 6th amendment right to counsel regarding that burglary (and the lesser-included offense). BUT Police CAN still question you about an unrelated robbery for which you have not been charged (AS LONG AS such questioning does not violate your 5th Amendment right to Counsel).

Question 47

How can a defendant WAIVE their 6th A right to counsel?

Answer 47

Knowing and voluntary

Question 48

When does a line-up violate Due Process?

Answer 48

When conducted in a manner that is impermissibly suggestive OR provides a substantial likelihood of misidentification

Question 49

What doe Double Jeopardy protect against?

Answer 49

(1) Prosecution for the same offense after ACQUITTAL;
(2) Prosecution for the same offense after CONVICTIONS; and
(3) Multiple punishments for the SAME OFFENSE

Question 50

What constitutes “same offense” for double jeopardy?

Answer 50

To be considered a SEPARATE OFFENSE under the Blockburger test, “each crime must require proof of an element that the other does not”

When given two statutes, make sure that each requires an element that the other does not.

This prohibits multiple prosecutions of greater and lesser-included offenses (both need to be charged in the same action)
Ex: CANNOT charge the defendant with felony murder (greater offense). Lose on that conviction, then bring a separate charge for robbery (lesser-included offense).