Criminal Procedure

Question 1

HIGH

**4th AMENDMENT SEARCHES

Define

Answer 1

Under the 4th Amendment, a person is granted protection from unreasonable government searches.

A search occurs: when government conduct violates a person’s reasonable expectation of privacy.

Absent an exception, a warrantless search performed by the government is unlawful.

Question 2

HIGH

**SEARCH WARRANT EXCEPTIONS (7)

Answer 2

Absent any of the seven exceptions listed below, a warrantless search performed by the government that violates a reasonable expectation of privacy is unlawful.

Evidence obtained without a warrant is usually excluded unless an exception applies. Think of the seven exceptions to the warrant requirement as seven E.S.C.A.P.E.S. from the warrant requirement:

1. Exigent circumstances
2. Search incident to lawful arrest (SILA)
3. Consent
4. Automobiles
5. Plain View
6. Evidence obtained from administrative searches
7. Stop and frisk

Question 3

lowest

SEARCH WARRANT EXCEPTION: EXIGENT CIRCUMSTANCES

Answer 3

Law enforcement officers may conduct a search without a warrant if:

1. The officers are in “hot pursuit” or immediate danger; OR
2. The evidence would spoil or disappear in the time it would take to obtain a warrant.

Question 4

lowest

SEARCH WARRANT EXCEPTION: AUTOMOBILES

Answer 4

Law enforcement officers may conduct a search without a warrant if they have probable cause to believe that an automobile contains contraband or evidence of a crime.

They can search the parts of the vehicle, and containers inside, which could reasonably contain the items for which there is probable cause (e.g., cannot search for a shotgun in the glove box where it cannot reasonably fit).

Question 5

LOW

SEARCH WARRANT EXCEPTION: PLAIN VIEW

Answer 5

Law enforcement officers may seize evidence without a warrant if:

1. The officers are legally on the premises (or legally for someone such as neighbors yard);
2. The evidence is observed (with any of the five senses) in plain view; AND
3. There is probable cause to believe the items are evidence of a crime or contraband.

Question 6

LOW

SEARCH WARRANT EXCEPTION: STOP AND FRISK [TERRY STOPS]

Answer 6

PD can stop and individual if they have REASONABLE SUSPICION, based on ARTICULABLE FACTS that subject is engaged in criminal activity (must take active steps to affirm or dispel suspicions)

______________________

Law enforcement officers can stop an individual when the officer has a reasonable suspicion, based on articulable facts (i.e., more than a “hunch” - less than probable cause), to believe that the subject is or is about to be engaged in criminal activity.

During a Terry stop, an officer can frisk a subject for weapons without a warrant; however, the officer cannot initiate a search for evidence.

If the frisk for weapons reveals objects whose shape makes their identity obvious (e.g., object is obviously contraband), the officer may seize those objects.

Question 7

LOW

ARREST REQUIREMENTS

Answer 7

In order to arrest an individual, law enforcement officers must have probable cause to believe that the individual has committed a crime. An officer has probable cause if:

1. The officer witnesses the commission of the crime; OR
2. A person tells the officer that a crime has been committed.

Question 8

HIGH

**CUSTODIAL INTERROGATIONS

DEFINE

Answer 8

Under Miranda, any incriminating statement obtained as a result of custodial interrogation (i.e., suspect is in custody and subject to police interrogation) may not be used against the suspect at a subsequent trial unless the police informed the suspect of his Miranda rights.

1. Custodial. A person is in custody when he reasonably believes that he is not free to leave (e.g., in the back of a police cruiser).
2. Interrogation. A person is subject to an interrogation when the police know or should know that their words or actions are likely to elicit an incriminating response.

Question 9

HIGH

**MIRANDA RIGHTS

LIST (4)

Answer 9

When a person is in custody, the police MUST inform the person of her Miranda rights BEFORE subjecting her to a police interrogation. This includes informing the subject:

1. She has the right to remain silent;
2. Any statement she makes may be used against her in court;
3. She has the right to consult an attorney and to have the attorney present during questioning; AND
4. She has the right to have an attorney appointed if she cannot afford one.

Question 10

HIGH

**MIRANDA WAIVER

Answer 10

A defendant may knowingly and voluntarily waive his Miranda rights.

The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily.

Question 11

HIGH

**INVOCATION OF THE 5th AMENDMENT RIGHT TO REMAIN SILENT

Answer 11

The police MUST cease their interrogation if the party being questioned affirmatively invokes her right to remain silent.

After a substantial period of time, police can go back to the suspect, give Miranda warnings again, and seek to interrogate her further.

Question 12

HIGH

**INVOCATION OF THE 5th AMENDMENT RIGHT TO COUNSEL

Answer 12

The police MUST cease their interrogation if the party being questioned affirmatively invokes her right to counsel.

The interrogation cannot resume until the lawyer is present, the suspect reinitiates the interrogation, or 14 days have passed since the suspect was released from custody.

Question 13

HIGH

**MIRANDA VIOLATIONS

Answer 13

A statement obtained in violation of Miranda is inadmissible in the prosecution’s case-in-chief,

BUT can be admitted to impeach the defendant.

Evidence obtained from a voluntary statement taken in violation of Miranda is admissible. Miranda is violated if:

1. The police fail to give Miranda warnings before a custodial interrogation; OR
2. The police fail to cease interrogation of a person after she has affirmatively invoked her right to remain silent or her right to counsel.

Question 14

HIGH

**MIRANDA EXCEPTIONS

Answer 14

There are three main exceptions to the Miranda requirement. The police are NOT required to give Miranda warnings before questioning a suspect:

1. When the public’s safety is at risk;
2. When the suspect being questioned is not aware that the interrogator is a police officer (e.g., undercover police officers); OR
3. If the questioning is biographical for routine booking purposes.

Question 15

HIGH

**HARMLESS ERROR RULE

Answer 15

If evidence in violation of Miranda is admitted at trial, a guilty verdict will be upheld if the prosecution can prove beyond a reasonable doubt that the error was harmless because the defendant would have been convicted even without the tainted evidence.

Question 16

LOW

INVOLUNTARY STATEMENTS UNDER THE 5th AMENDMENT

Answer 16

The 5th Amendment protects against government compulsion of involuntary statements. Statements are involuntary only if the police coerced the defendant into making the statements.

To determine whether a statement was coerced by the police, courts look at the totality of the circumstances. Relevant factors include:

1. The length of the interrogation;
2. The time and location where the interrogation took place;
3. Police tactics used (e.g., force, trickery, etc.); AND
4. The character of the person being interrogated (e.g., age, experience, state of health, education level, sophistication, intoxication, mental condition, etc.)

Question 17

LOW

USE OF FORCE IN POLICE INTERROGATIONS

Answer 17

The application of force or threats of force made by the police to the person being interrogated renders any statements made during the interrogation involuntary.

Question 18

LOW

USE OF TRICKERY IN POLICE INTERROGATIONS

Answer 18

Trickery or false promises made by the police to the person being interrogated may render their statements involuntary.

However, deceit or fraud by the police (i.e., lying about an accomplice’s confession) does not itself make a statement involuntary.

Question 19

LOW

EXCEPTIONS TO THE EXCLUSIONARY RULE

Answer 19

The exclusionary rule does NOT apply if:

1. The police had an independent source for the evidence that was distinct from the original illegal source;
2. The discovery of the evidence was inevitable regardless of the violation;
3. There is attenuation in the causal chain, such that intervening events and the passage of time can remove the taint; OR
4. The police relied in good faith on either:
   
   1. existing law that was later declared unconstitutional; or
   2. a warrant that, while facially valid, is later found to be defective.

Question 20

LOW

REMOVAL OF POTENTIAL JURORS

Answer 20

Potential jurors may be removed for cause to ensure an impartial jury OR through the use of peremptory challenges.

Peremptory challenges allow each side to remove a limited number of potential jurors for any reason other than race or gender.

Question 21

lowest

GUILTY PLEAS

Answer 21

A guilty plea waives the various trial rights that a defendant would otherwise have (e.g., right to a jury trial, right to appeal if there is a conviction, etc.).

For a guilty plea to be valid, the judge must:

1. Inform the defendant of his rights and ensure that the defendant understands those rights;
2. Inform the defendant of possible sentences;
3. Make sure there is a factual basis for the plea;
4. Determine that the plea did not result from force, threats, or improper promises; AND
5. Make sure that defendant understands the immigration consequences of pleading guilty.

Question 22

LOW

DOUBLE JEOPARDY

Answer 22

Double jeopardy ensures that the defendant is protected against:

1. Prosecution for the same offense after acquittal;
2. Prosecution for the same offense after conviction; AND
3. Multiple prosecutions or punishments for the same offense.

Question 23

LOW

MOTION FOR JUDGMENT OF ACQUITTAL

Answer 23

After the government closes its evidence or after the close of all the evidence, the court, on the defendant’s motion, must enter a judgment of acquittal for the defendant if the evidence is insufficient to sustain a conviction (i.e., no reasonable jury could find that each element of the offense was proven beyond a reasonable doubt).