Criminal Procedure

Question 1

What is the Exclusionary Rule?

Answer 1

A remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or a coerced confession can have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution.

It is inapplicable to grand jury proceedings, civil proceedings, parole revocation proceedings, or for impeachment purposes, or for violations of the knock and announce rule.

Question 2

What is the standard used by the court to overturn a conviction premised on illegally seized evidence?

Answer 2

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond a reasonable doubt that the error was harmless.

This test NEVER applies to the denial of the right to counsel at trial.

Question 3

What are three ways the police can break the chain between original, unlawful police action and some supposedly derived piece of evidence?

Answer 3

The three INs:

(1) The government could show that it had an independent source for that evidence
(2) Inevitable discovery: the police would have inevitably discovered this evidence anyway.
(3) Intervening acts of free will ont he part of the defendant

Question 4

What does the Fourth Amendment protect against?

Answer 4

The Fourth Amendment protects citizens from unreasonable searches and seizures.

Question 5

What does an arrest require as its basis?

Answer 5

Probable cause. Arrest warrants are generally not required before arresting someone in a public place, even if the police have time to get a warrant. However, a non-emergency arrest of an individual in his home does require an arrest warrant.

Question 6

What is required for a Terry Stop?

Answer 6

The police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make such a stop, the police must have a reasonable suspicion supported by articulable facts of criminal activity. A hunch is never enough, even if correct.

Whether the police have reasonable suspicion depends on the totality of the circumstances.

Question 7

When may police stop an automobile?

Answer 7

If they have at least reasonable suspicion that the law has been violated. If special law enforcement needs are involved, the police may set up roadblock checkpoints. To be valid, the roadblock must stop cars on the basis of some neutral, articulable standard, and be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.

During routine traffic stops, a sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.

Question 8

What are the five steps to analyzing a Fourth Amendment search and seizure question?

Answer 8

1) Is there governmental conduct?
2) Did the search violate the defendant’s reasonable expectation of privacy?
3) Did the government agent have a warrant? (See six exceptions for when a warrant not required)
4) Was the warrant proper (i.e. based on probable cause, precise on its face, and issued by a neutral and detached magistrate or was the government agent’s reliance on the warrant in good faith?)
5) Was the warrant properly executed?

Question 9

For search and seizure purposes, when is governmental conduct present?

Answer 9

Government conduct is the publicly paid police, on duty or off duty, or any private individual acting at the direction of the public police. Privately paid police actions do NOT constitute governmental conduct unless they are deputized with the power to arrest you.

Question 10

When does one have a reasonable expectation of privacy, and therefore have standing to object to a search?

Answer 10

Automatically if:

(1) You own the premises searched,
(2) You live on the premises searched, and
(3) Overnight guests

Sometimes if:
(1) You own the property seized you have standing only if you have a reasonable expectation of privacy in the item or area searched.

Question 11

What are the areas where a person automatically does NOT have standing because there is no expectation of privacy?

Answer 11

Things you hold out to the public:

(1) The sound of your voice,
(2) The style of your handwriting,
(3) The paint on the outside of your car,
(4) Account records held by a bank,
(5) Monitoring the location of your car on a public street or in your driveway,
(6) Anything that can be seen across the open fields,
(7) Anything that can be seen from flying over in the public airspace,
(8) The odors emanating from your luggage,
(9) Your garbage set out on the curb for collection

Question 12

What are the two things required for a facially valid search warrant?

Answer 12

Probable cause and particularity.

Question 13

What is the standard for probable cause and particularity in obtaining a search warrant?

Answer 13

Requires a fair probability that contraband or evidence of a crime will be found in the area search. The warrant must state with particularity the place to be searched and the things to be seized.

Question 14

How is an informant’s credibility determined when he is the basis of a search warrant?

Answer 14

The sufficiency is determined by the totality of the circumstances. An informant’s credibility, and basis of knowledge are all relevant factors in making this determination. A valid warrant can be based in part on an informant’s tip even though the informant is anonymous.

Question 15

When is “no knock” entry permitted?

Answer 15

If exigent circumstances exist: (1) an officer need not knock and announce if knocking would be be dangerous, futile, or inhibit the investigation. The biggest fear of inhibiting the investigation is the destruction of evidence.

Question 16

When does an officer’s good faith reliance save a defective warrant?

Answer 16

The general rule is that an officer’s good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements.

Question 17

What are the four exceptions to a good faith reliance on a defective search warrant?

Answer 17

(1) The affidavit underlying the warrant is so lacking in probable cause that no reasonable officer would have relied on it.
(2) If the affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it.
(3) The police officer or prosecutor lied to or misled the magistrate when seeking the warrant,.
(4) If the magistrate is biased, and therefore has wholly abandoned his or her neutrality

Question 18

Exceptions to the warrant requirement:

Answer 18

(1) Search incident to a lawful arrest
(2) The automobile exception
(3) Plain view
(4) Consent
(5) Stop and frisk
(6) Evanescent evidence, hot pursuit, and special needs

Question 19

What is required for a search incident to a lawful arrest?

Answer 19

The arrest must be lawful. The arrest and seach must be contemporaneous in time and place. The person and the areas within the person’s wingspan may be searched. The police may search the interior of the auto incident to arrest ONLY IF: the arrestee is unsecured and still may gain access to the interior of the vehicle; or the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

Question 20

What is the automobile exception to the warrant requirement?

Answer 20

In order for the police to search anything or anybody and fall under the automobile exception they must have probable cause. If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search. If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later.

The probable cause may arise after the car is stopped, BUT the probable cause must arise before anything or anyone is searched.

Question 21

When does the plain view exception to the search warrant apply?

Answer 21

To constitute a plain view seizure the police officer must be legitimately present at the location where he or she does the viewing of the item seized. It must be IMMEDIATELY APPARENT that the item is contraband or a fruit of a crime.

Question 22

When does the consent exception to the search warrant requirement apply?

Answer 22

For consent to be valid, the consent must be VOLUNTARY and INTELLIGENT.

Question 23

What is the rule regarding third party consent to eviscerate the search warrant requirement?

Answer 23

Where two or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one person consents to the search and the other does not consent the the one who does not consent controls.

Question 24

When does the “Evanescent Evidence” exception to the search warrant requirement apply?

Answer 24

Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant.

Supreme Court held that officers need to ge ta warrant before taking a blood sample for DUI arrest IF it is practical to do so.

Question 25

What is the rule regarding hot pursuit of a fleeing felon?

Answer 25

If the police are not within 15 minutes behind the felon, it is not a valid hot pursuit exception.

Note: if police are in hot pursuit, they can enter a home without an arrest. Being legitimately present, if it is immediately apparent that evidence of a crime is present (i.e. they see cocaine on a coffee table), the evidence in plain view is admissible.

Question 26

What is an inventory search?

Answer 26

As an exception to the search warrant requirement, before incarceration of an arrestee, the police may search the arrestee’s personal belongings and/or the arrestee’s entire vehicle (includes closed containers).

Question 27

What is the rule regarding public school searches?

Answer 27

Public school children engaged in extracurricular activities (including a school dance) can be randomly drug tested. Warrantless searches of public school children’s effects, such as purses and/or backpacks is permissible to investigate violations of schools rules.

A school search is reasonable only if: (1) it offers a moderate chance of finding evidence of wrongdoing; (2) the measures adopted to carry out the search are reasonably related to the objectives of the search; and (3) the search is not excessively intrusive.

Question 28

When are Miranda warnings required?

Answer 28

When the suspect is in custodial interrogation.

Question 29

What is the legal standard for custody in defining custodial interrogation for Miranda?

Answer 29

Custody is a legal standard. You are in custody if, at the time of the interrogation, you are not free to leave. The “not free to leave standard” covers being in a police car or being in jail, but you could also be in your home or a hospital bed. Probation interviews and routine traffic stops are NOT custodial.

Question 30

What is “interrogation” for the purpose of Miranda?

Answer 30

Under the Fifth Amendment Miranda doctrine, interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect.

Miranda warnings are not required prior to the admissibility of a SPONTANEOUS STATEMENT.

Question 31

How is a Miranda waiver effective?

Answer 31

A Miranda waiver must be knowing, voluntary, and intelligent.

Courts will look at the totality of the circumstances.

Question 32

How is the right to counsel invoked?

Answer 32

The request for counsel can be invoked only by an unambiguous request. If the accused invokes his right to counsel, all questions must cease until (1) the accused is given an attorney or (2) the accused initiates further questioning. However, if there is a break in “custody,” the police can come back and ask defendant to waive his Miranda rights after 14 days.

Question 33

What is the difference between the Fifth Amendment right to counsel and the Sixth Amendment right to counsel?

Answer 33

The Court-created Fifth Amendment right to counsel arises when a suspect invokes his Miranda rights and requests an attorney. It is NOT offense specific and thus applies to the entire process of custodial police interrogation.

The Sixth Amendment right to counsel IS offense specific, meaning counsel would only need to be present if the defendant were being asked questions about the specific case for which the defendant has retained counsel.

Question 34

What is the defendant’s right with respect to grand juries?

Answer 34

Grand juries are conducted in secret. Defendant has no right to appear and no right to send in witnesses.

Question 35

When will a prosecutor’s failure to disclose exculpatory information constitute grounds for reversing a conviction?

Answer 35

If the evidence is favorable to the defendant; and prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed.

Question 36

What constitutes a biased judge?

Answer 36

Bias means having a financial interest in the outcome of the case or some actual malice against the defendant.

Question 37

When does the right to a jury attach?

Answer 37

Any time the defendant is tried for an offense for which the maximum authorized sentence EXCEEDS 6 months. If maximum authorized sentence is up to or including 6 months, there is no constitutional right to a jury trial.

Question 38

What is the “cross sectional requirement” for a jury?

Answer 38

You have the right to have the jury pool reflect a fair cross-section of the community. BUT – you have no right to have the impaneled jury reflect a fair cross-section of the community.