Criminal Procedure

Question 1

Probable Cause

Answer 1

Probable cause exists when a reasonably prudent person would believe that a suspect has committed or is committing a crime.

Any arrest must be based on probable cause, unless non-emergency arrest of an individual in her home.

Question 2

Terry Stop

Answer 2

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.

Question 3

Reasonable Suspicion

Answer 3

More than just vague suspicion and it is less than probable cause. Depends on the totality of the circumstances.

Question 4

Informational/Checkpoint Roadblocks

Answer 4

If the police set up a roadblock for purposes other than seeking incriminating information about the drivers stopped, the roadblock will be constitutional.

Question 5

Government Conduct

Answer 5

(1) Public paid police (on or off duty)
(2) Any private individual acting at the direction of the public police
(3) Privately paid police actions ONLY IF they are deputized with the power to arrest you

Question 6

Standing (Criminal Procedure)

Answer 6

Must have a reasonable expectation of privacy in the item or area searched. Automatic categories of standing:

(1) If you own the premises searched, you always have standing to object to the search of the place you own;
(2) You live on the premises searched, whether you have ownership interest or not;
(3) Overnight guests

Question 7

No Standing Categories (Criminal Procedure)

Answer 7

1. Sound of your voice;
2. Handwriting;
3. Paint on outside the car;
4. Account records held by bank;
5. Monitoring the location fo 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 the public air space;
8. The odors emanating from your luggage or car;
9. Your garbage set out on the curb for collection

Question 8

Valid Warrant Requirements

Answer 8

1. Probable Cause: a fair probability that contraband or evidence of a crime will be found in the area searched;
2. Particularity: the warrant must state with particularity the place to be searched and things to be seized.

Question 9

Search Incident to Arrest (Exception to Warrant)

Answer 9

Arrest must be lawful, and arrest and search must be contemporaneous in time and place. Only able to search the person and the areas within the person’s wingspan.

SITA for Automobiles:

1. The arrestee is unsecured and still may gain access to the interior of the vehicle; or
2. The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

Question 10

Automobile Search (Exception to Warrant)

Answer 10

If before searching anything or anybody, the police have probable cause, they may search the entire car, including interior compartment and trunk. May also open any package, luggage, or other container which could reasonably contain the item they have probable cause to look for, no matter who it actually belongs to.

Question 11

Plain View (Exception to Warrant)

Answer 11

To constitute a valid 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 12

Consent (Exception to Warrant)

Answer 12

For any consent to be valid, the consent must be voluntary.

Question 13

Third Party Consent (Exception to Warrant)

Answer 13

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, then the one who does not consent controls.

Further, if a co-occupant who does not consent to a search is removed from the premises for a reason unrelated to the refusal, the police may search upon consent of the other occupant.

Finally, anyone with apparent authority can validly consent to a governmental search.

Question 14

Stop and Frisk (Exception to Warrant)

Answer 14

A Terry Stop is a brief detention for the purpose of investigating suspicious conduct. A Terry Frisk (Stop and Frisk) is a pat down of the outer clothing and body to check for weapons.

Question 15

Evanescent Evidence (Exception to Warrant)

Answer 15

Evidence that might disappear quickly if the police took the time to get a warrant.

Question 16

Hot Pursuit (Exception to Warrant)

Answer 16

Hot pursuit of fleeing felon. If the police are not within fifteen (15) minutes behind the fleeing felon, it is not a valid hot pursuit exception.

Question 17

Inventory Searches (Exception to Warrant)

Answer 17

Before incarceration of an arrestee, the police may search (1) the arrestee’s personal belongings and/or (2) the arrestee’s entire vehicle.

Question 18

Emergency Aid/Community Caretaker (Exception to Warrant)

Answer 18

This exception justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public.

Question 19

Public School Searches (Exception to Warrant)

Answer 19

Public school children engaged in extracurricular activities can be randomly drug tested. Reasonable only if:

1. It offers a moderate chance of finding evidence of wrongdoing; and
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 20

Opening International Mail (Exception to Warrant)

Answer 20

Permissible border searches include the opening of international mail when there is reasonable cause to believe that the mail contains contraband.

Question 21

“Unreliable Ear” (Exception to Warrant)

Answer 21

All wiretapping and eavesdropping requires a warrant. Exception that everyone in this society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conservation or will be wired, and, therefore, has no 4th Amendment objection on the basis that it was a warrantless search.

Question 22

“Uninvited Ear” (Exception to Warrant)

Answer 22

All wiretapping and eavesdropping requires a warrant. Except that a speaker has no 4th Amendment right if she makes no attempt to keep the conversation private.

Question 23

Miranda Doctrine

Answer 23

Miranda warnings are required when a suspect is in custodial interrogation.

1. Custody: You are in custody if, at the time of the interrogation, a reasonable person would not feel free to leave. This is an objective test. A court will determine whether the situation presents the same inherently coercive pressures as a station house questioning.
2. Interrogation: Any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect.

Wavier of these rights must be knowing and voluntary. Must assert right to remain quiet.

Question 24

Invoking Right to Remain Silent

Answer 24

Must be unambiguous. Police may reinitiate questioning after the defendant has invoked right to silence if they scrupulously honor the detainee’s request.

Question 25

Invoking Right to Counsel

Answer 25

Must be 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.

Question 26

Public Safety Exception to Miranda Doctrine

Answer 26

If police interrogation is reasonably prompted by concern for public safety, responses to the questions may be used in court, even though a suspect is in custody and Miranda warnings are not given.

Question 27

Exclusionary Rule

Answer 27

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.

Question 28

Fruit of the Poisonous Tree Doctrine

Answer 28

This doctrine will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived from police illegality.

Does NOT apply to Miranda violations, unless the police acted in bad faith in obtaining such information.

Exceptions:

1. Government had INDEPENDENT source for evidence;
2. INEVITABLE discovery of evidence;
3. INTERVENING acts of freewill on part of D

Question 29

Good Faith Reliance on Defective Warrant

Answer 29

Officer’s good faith reliance on an invalid arrest or search warrant overcomes defects with the probable cause or particularity requirements.

Exceptions:

1. The affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it;
2. The affidavit underlying that warrant is so lacking 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 30

Harmless Error Test

Answer 30

A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial. A conviction will be upheld if the conviction would have resulted despite the improper evidence.

Question 31

Right to Trial by Jury

Answer 31

Attaches anytime the defendant is tried for an offense for which the maximum authorized sentence exceeds six (6) months. If the maximum authorized sentence is up to or including six (6) months, there is no constitutional right to jury trial.

Question 32

Ineffective Assistance of Counsel

Answer 32

There must be deficient performance by counsel and, but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different. Typically, such a claim can only be made out by specifying particular errors of trial counsel.

Question 33

Open Fields Doctrine

Answer 33

Areas outside the curtilage are subject to entry and search and unprotected by the 4th Amendment. Even buildings such as barns are considered to be outside the curtilage of a house.

Question 34

Effect of Guilty Plea

Answer 34

Waiver of the 6th Amendment right to a jury trial. To be a valid waiver, the judge must determine on the record that the guilty plea represents a voluntary and intellegent choice among the alternative course of action open to the D.

Judge should make sure D is informed of:

1. Nature of the charge to which the plea is offered;
2. The maximum possible penalty;
3. That she has a right to plead not guilty; and
4. That by pleading guilty she waives her right to a trial.