Criminal Procedure

Question 1

Terry stop

Answer 1

Brief detention for the purpose of investigating suspicious conduct.

Standard: officer needs articulable and reasonable suspicion

Scope of intrusion: patdown of outer clothing, unless officer has specific information that a weapon is hidden in specific area of suspect’s clothing

Admissibility of evidence: officer may search into suspect’s clothing and seize any item that the officer reasonably believes, based on its plain feel, is a weapon OR contraband.

Automobile terry stops: IF a vehicle is properly stopped for a traffic violation and the officer reasonable believes that a driver or passenger may be armed and dangerous, the officer may (1) conduct a frisk of suspected person, and (2) search the vehicle, so long as limited to areas in which weapon would be placed.

Question 2

Death Penalty and Felony Murder

Answer 2

The Supreme Court has held that, under the Eighth Amendment, the death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take or attempt or intend to take life, or intend that lethal force be employed.

Question 3

Double Jeopardy

Answer 3

Imposition of cumulative punishments for two statutorily defined offenses arising from the same transaction and constituting the same crime does not violate double jeopardy when the punishments are imposed at a single trial, as long as the two offenses were specifically intended by the legislature to carry separate punishments. [Missouri v. Hunter (1983)] Here, the legislature did specifically provide for cumulative penalties for first degree felony murder and for the underlying felony. Thus, the defendant can be convicted of both robbery and felony murder

Question 4

Exception to warrant requirement (ASPACE)

Answer 4

1. Automobile exception: officers can search an auto if they probable cause to believe that evidence, instrumentalities, or fruits of a crime exist within it. If parked in D’s driveway, they can’t…need warrant. Probable cause necessary to justify warrantless search can occur after car is stopped!
2. Search incident to arrest: at time of a lawful arrest (or contemporaneous with it), an officer may conduct certain searches of the arrestee (person, clothing, wingspan, grazable space), without a warrant in order to keep officer safe and to preserve evidence. If arrest unlawful, so is search.

• if D in auto, can search passenger compartment only IF (a) arrestee unsecured and still may gain access to vehicle interior OR (b) the police reasonably believe that evidence of the offense for which person was arrested may be found in vehicle.
  3. Plain view: an officer who is lawfully present in the area that he is in if he (1) discovers evidence, fruits, or instrumentalities of crime or contraband, (2) such evidence is in plain view, and (3) officer has probable cause to believe (must be immediately apparent), that item i contraband or a fruit or instrumentality of crime.
  4. Administrative search: officers can search (1) arrestees and impounded vehicles, (2) public school officials can search upon reasonable suspicion, (3) random drug testing permitted for public school children involved in any extracurricular
  5. Consent: if one with actual or apparent authority to consent gives consent voluntarily, officers may search the areas to which they understand consent to extend.
  6. Emergency Circumstances: (1) officer in hot pursuit (must be probable cause to believe suspect has committed crime and is in particular place), (2) serious injury or threat of injury, or (3) evidence of a crime likely will disappear before a warrant can be obtained.

Terry Frisk: only reasonable suspicion needed.

Question 5

Parolees and Fourth Amendment Protections

Answer 5

The Supreme Court has held that the Fourth Amendment is not violated by a statute authorizing warrantless searches of a parolee’s home-even absent probable cause-_if a statute provides for such searches._

The Court reasoned that in such circumstances, the parolee has a diminished expectation of privacy and the government has a heightened need for searching parolees; thus the search is reasonable in a constitutional sense.

Question 6

Right to Counsel + Harmless Error

Answer 6

• At non-trial proceedings, harmless error test applies to unconstitutional deprivations of counsel.

Question 7

Fifth Amendment Right against self-incrimination

Answer 7

use of a defendant’s grand jury testimony at trial does not violate the Fifth Amendment.

Pursuant to the Fifth Amendment, a criminal defendant may invoke the privilege against self-incrimination by refusing to answer grand jury questions on the grounds that it may incriminate him. If he testifies, he has waived his privilege.

Question 8

Harmless Error

Answer 8

Standard: beyond a reasonable doubt that it was harmless

• involuntary confessions: need not be overturned if there is other overwhelming evidence of guilt.
• failure to provide counsel at non-trial proceedings
• when the prosecutor impermissibly comments on defendant’s silence
• whether to overturn a sentence for failure to submit a sentencing factor to the jury