Criminal procedure

Question 1

4th amendment

Answer 1

prohibition against unreasonable searches and seizures

Question 2

5th amendment

Answer 2

Privilege against compulsory self-incrimination

Prohibition against double jeopardy

Question 3

6th amendment

Answer 3

Right to speedy trial

Right to confront witnesses

Right to trial by jury

Right to assistance of counsel

Question 4

8th amendment

Answer 4

Prohibition against cruel and unusual punishment

The death penalty

Prisoner’s rights

Question 5

Seizure

Answer 5

An exercise of control by a government agent over a person or thing

Question 6

Probable cause

Answer 6

PC 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

Arrest warrants are generally not required before arresting someone in a public place

BUT a non-emergency arrest of an individual in her home does require an arrest warrant

The police also need PC to compel you to come to the police station for

1. fingerprinting
2. interrogation

Question 7

Effect of an invalid arrest

Answer 7

An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution

Question 8

Terry stops

Answer 8

The police have the authority to briefly detain a person even if they lack PC to arrest

The police must have a reasonable suspicion supported by articulable facts of criminal activity

Reasonable suspicion is more than just vague suspicion and is less than PC

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

Question 9

Informants

Answer 9

When a reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (including predictive information) to be sufficient

Question 10

Automobile stops

Answer 10

The police may stop a car if they have at least reasonable suspicion that the law has been violated

Question 11

Stops and police dogs

Answer 11

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

During such a traffic stop, a dog “alert” to the presence of drugs can form the basis for PC for a search

BUT, the police without PC cannot use a drug sniffing dog outside of the home of a suspected drug dealer

Question 12

Traffic stops and seizure of occupants

Answer 12

An automobile stop constitutes a seizure of all occupants

Question 13

Traffic stops and informational/checkpoint roadblocks

Answer 13

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

Question 14

Traffic stops and ordering occupants out of the car

Answer 14

If a car is lawfully stopped, an officer may order the occupants out of the car

Question 15

Traffic stops and pretextual stops

Answer 15

An officer’s ulterior motive for stopping a car is irrelevant, so long as the stopping of the car was legal

Question 16

Evidentiary search and seizure - government conduct

Answer 16

Government conduct includes:

1. The publicly paid police - on or off duty
2. 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 17

Reasonable expectation of privacy and standing

Answer 17

In order to object to a governmental search, one must have standing to object to the search

In order to have standing, a person must have a reasonable expectation of privacy in the item or area to be 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 or not you have an ownership interest
3. Overnight guests have standing to object to the legality of the search of the place they are staying

If you own the property seized you have standing only if you have a reasonable expectation of privacy in the item or area searched

No standing categories

1. No standing for anything that you hold out to the public every day, including:
   - The sound of your voice
   - The style of your handwriting
   - The paint on the outside of your car
   - Account records held by the bank
   - Monitoring the location of your car on a public street or in your driveway
   - -> But note, installation of a GPS device on a suspect’s car constitutes a search within the 4th amendment
   - Anything that can be seen across open fields
   - Anything that can be seen from flying over public air space
   - The odors emanating from your luggage or car
   - Your garbage set out on the curb for collection

Question 18

Searches conducted with a warrant - Warrant requirements

Answer 18

Two core requirements for a facially valid search warrant: Probable cause and particularity

1. The standard for PC: A fair probability that contraband or evidence of a crime will be found in the area searched
2. The warrant must stated with particularity the place to be searched and things to be seized

Question 19

Searches conducted with a warrant - Warrant may be anticipatory

Answer 19

A warrant can predict when illegal items may be in a suspect’s home/office and the items need not be on the premises at the time the warrant is issued

Question 20

Searches conducted with a warrant: Probable cause and informants

Answer 20

If an officer’s affidavit or PC is based on an informant’s information, its sufficiency is determined by the totality of the circumstances

An informant’s credibility and basis of knowledge are relevant factors

A valid warrant can be based IN PART on an informant’s tip even though that informant is anonymous

Question 21

Searches conducted with a warrant - Execution

Answer 21

Only the police (and not a private citizen) can execute a search warrant

Usually, when executing a warrant in one’s home, the police may not be accompanied by any third parties (unless the third party is there to aid in identifying stolen property)

Question 22

Exceptions to the warrant requirement:

Answer 22

The arrest must be lawful –> If the arrest is unlawful then the search is unlawful

The arrest and search must be contemporaneous in time and place

The person and the areas within the person’s wingspan can be searched

Search incident to arrest and automobiles: The police may search the interior of the auto incident to arrest ONLY IF -

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

Note: The police, without a warrant, may not search digital information on a cell phone seized from an arrested individual
- BUT physical attributes of a cell phone may be searched (but not data)

Question 23

Exceptions to the warrant requirement: The automobile exception

Answer 23

In order for the police to search anything or anyone and fall under the automobile exception, they must have PC

If, before searching anything or anyone, the police have PC, they they can search the entire car –> this includes the entire interior compartment and the trunk, and they may open any package, luggage, or other container which could reasonably contain the time they had PC to look for whether that package, luggage or container is owned by the passenger or the driver

The PC necessary to justify the warrantless search of a car under the automobile exception can arise after the car is stopped. BUT the PC must arise before anything or anyone is searched

Question 24

Exceptions to warrant requirement: Plain view

Answer 24

To constitute a valid plan view seizure, the police officer must be legitimately present at the location where he or she views the item, and it must be immediately apparent that the item is contraband or a fruit of a crime

Question 25

Exceptions to the warrant requirement: Consent

Answer 25

For consent to be valid, the consent must be voluntary

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

If a co-occupant who does not consent to a search is removed from the premises for reasons unrelated to the refusal (e.g. a lawful arrest), the police may search upon consent of the other occupant

Anyone with apparent authority can validly consent to a governmental search

Question 26

Stop and Frisk

Answer 26

A terry stop is a brief detention for the purpose of investigating suspicious conduct

The legal standard for stopping - reasonable suspicion
- This is less than PC

A terry frisk is a pat down of the outer clothing and body to check for weapons if the police have reasonable suspicion the suspect is armed and dangerous

If PC arises during an investigatory stop, the detention can become an arrest and the officer could then conduct a full search incident to that arrest

Question 27

“Frisk” in an auto stop

Answer 27

If a car is properly stopped for a traffic violation, and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may:

1. Conduct a frisk of the suspected person,
2. May search the car, so long as it’s limited to the areas in which a weapon may be placed