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Things to remember for the Bar > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

4th Amendment – Search and Seizure

A

The 4th Amendment protects persons against unreasonable arrests or other seizures as well as unreasonable searches. In addition, when a warrant is required, it must comply with these constitutional requirements.

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2
Q

Government Action

A

Search & Seizure must be made by a government agent or at the direction of the government

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3
Q

Search

A

A government search of a location with a
reasonable expectation of privacy.

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4
Q

Reasonable Expectation of Privacy

A
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5
Q

Where do you have a lack of expectaiton of privacy and thus it would not be a search

A

Open fields ie Open field doctrine

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6
Q

Probable cause for a warrant

A

A fair probability that would warrant a reasonable person to conclude that evidence of a crime can be found at a particular place or that a particular Δ committed a crime

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7
Q

Elements of a Search warrant

A

1) Issued by detached magistrate
2)Based on probable cause like oath or affidavit
3) Persons/Places must be described with particularity
4) Cannot exceed the scope of the search

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8
Q

Police can rely on informants for probable cause and to find a informant reliable look to the

A

totality of the circumstances

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9
Q

When police seize what is in plain view during a lawful search is it excluded

A

No

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10
Q

Will an illegal search automatially dismiss indictment

A

no

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11
Q

protective sweep elements

A
  • Search for additional criminals
  • Allowed for safety with proof of others
    present
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12
Q

Exceptions to the warrant requirement where probable cause alone can justify a search or seizure

A

Community caretaking
hot pursuit
automobile
minor intrusion
Plain View
Exigency or Destruction of eveidence

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13
Q

Seizures:

A

individual’s freedom of movement is limited by an officer such that the person would not feel free to leave the
officer’s presence

Objective standard: A reasonable person would not feel free to leave or end the encounter

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14
Q

Exceptions to seizure warrants wherePC is needed or Reasonable suspicion for S

A

Arrest
Stop and Frisk
Seizure by deadly force

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15
Q

Exceptions to search and seizure warrants were no warrant or pc Is needed

A

SILA
COnsent
Administrative or Special Needs search
Terry stop

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16
Q

Exclusionary rule

A

Evidence obtained in violation of Δ’s constitutional rights is inadmissible against Δ in trial. This includes statements obtained in violation of Miranda

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17
Q

Fruit of the poisonous tree:

A

All derivative evidence obtained via inadmissible evidence is also excluded. This does not apply to Miranda

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18
Q

Exceptions to ER rule

A

independent basis
inevitable basis
intervening act of free will

Grand Jury
GF reliance on warrant
Knock and Annouce
Independent source
Inevitabel disvoery
Intervening act
Impeachment
Attenuation
Miranda violation evidence

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19
Q

Grand Jury

A

A grand jury may hear and use any piece of evidence regardless of its admissibility

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20
Q

GF Reliance on warrant

A

reasonably well-trained PO would have believed W was valid (e.g., clerical error)

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21
Q

Independent source of derivate evidence

A

May “rediscover” initially illegal evidence under valid W if police would have applied for and received W anyway

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22
Q

4thA protects

A

against unreasonable searches and seizures by the gov’t or its agents

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23
Q

Standing and how do you waive it

A

, Δ must have had a reasonable expectation of privacy (REP) in the place searched. When the individual knowingly exposes something to the public, he no longer has standing to challenge a search of it

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24
Q

: A search/seizure must be made with a valid W, which must be

A

1) issued by neutral, detached magistrate,
(2) based on probable cause, and (3) described with particularity the place to be searched or item/person to be seized

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25
Q

Probable cause is

A

A fair probability that would warrant a reasonable person to conclude that evidence of a crime can be found at a particular place or that a particular Δ committed a crime

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26
Q

if PC is based on an informants tip, it must beet the totality of the circumstances test, THe court will look to:

A

based on informant’s veracity, and knowledge, and corroboration from police investigation predictive information showing insider knowledge.

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27
Q

Community caretaking

A

Going into home to make sure there isn’t further injury (based on objective TOTC)

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28
Q

Autombile exception approach

A

To stop car, needs RS of violation of law (can ripen to PC) or PC to believe crim evidence is in car
2. If PC to believe criminal evidence is in a car, can search w/o W: the whole car, closed containers
(size limited to where evidence could be), and its contents, including passenger luggage
3. If PC to believe evidence is in a container in the car, search of car limited to that container (and where that container could be); once package is found, search is limited to the package
4. If PC to believe automobile itself is contraband, can seize it without W

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29
Q

Minor intrusion example and definition

A

into body in reasonable manner

breathlyzer tube

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30
Q

Plain View

A

Police officer (PO) is lawfully present and positioned + “immediately apparent” that item is subject to seizure + PC to believe evidence is associated with crime (can’t move item for a better view)

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31
Q

Exigency or destruction of evidence

A

PC to believe evidence likely to disappear before W can be obtained (e.g., blood alc. conc., scraping under fingernail). Warrantless search must end roughly when exgiency ends

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32
Q

Arrest - Seizure exception

A

Need PC for any arrest. No W is needed in a public place, but an arrest warrant is required for arrest inside one’s home (search warrant needed if someone else’s home), unless in hot pursuit or exigency

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33
Q

Stop and frisk

If the officer also believes that the person is armed and dangerous, then the officer can

A

permits an officer to stop a person whenever they have reasonable suspicion, based on articulable facts, that criminal activity is afoot.

conduct a pat-down of their outer clothing in order to search for weapons.

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34
Q

Plain feel as it realtes to stop and frisk

A

During patdown, PO may seize items reasonably believed to be weapon or contraband (admissible as evidence)

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35
Q

What happens dring an auto stop where PC arises

A

turns into a SILA

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36
Q

Seizure by deadily force

A

Under objectively “reasonable” circumstances, deadly force (e.g., shooting) may not be used unless necessary to prevent escape + PC to believe that suspect poses significant threat of death or serious injury to PO or others + where feasible, some warning has been given

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37
Q

With a SILA, where can you search

A

arrestees person and area within immediatte control

38
Q

In order to justify a warrantless search of car incident to arrest LEO must show

A

i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with, or

(ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.

39
Q

Protective sweep occurs at the home when executing the arrest warranty only if

A

police has RS of danger/attack from others in the home, may sweep spaces where another person might be hiding (e.g., not drawers)

40
Q

Vechile + SILA can occur in what 2 ways

A

unsecured arrestee or reasonable belief of criminal evidence in vehicle

41
Q

When can a PO search inside the vechile

A

when arrestee is unsecured and within reaching distance of a compartment while arrested

42
Q

When is a search of a whole vechile incident to a lawful arrest allowed

A

if it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle

43
Q

Inventory search

A

Police may conduct routine search of arrestee’s belongings or impounded car

44
Q

3rd party consenet

A

PO may enter premises relying on consent of one reasonably believed to have
actual or apparent joint authority over the premises

45
Q

3rd party consenet

A

PO may enter premises relying on consent of one reasonably believed to have
actual or apparent joint authority over the premises

46
Q

When can you ask the Landlord or the hotel for express consent for a search

A

when the T vacates

47
Q

How is 3rd party limited

A

Physically present co-occupant’s explicit refusal to permit entry prevails over 3P consent

48
Q

If nonconsenting occupant is removed from premises for reason unrelated to refusal (e.g., lawful arrest), PO may search if

A

other occupant consents

49
Q

Checkpoint rule

A

Suspicionless stopping and searching OK if done routinely, not randomly, at fixed pt

50
Q

5A Self incrimination

A

Δ may refuse to answer a question whenever his response might result in self-incrimination or reasonable possibility of contributing to his criminal conviction. Δ must assert right to silence or right to counsel for questioning to stop

51
Q

5TH AMENDMENT - Miranda Rights

A

A statement is obtained in violation of Miranda where an individual is in custody, and an officer is interrogating the individual without first providing the appropriate
Miranda warnings

52
Q

5A only governs what type of evidence and what is excluded

A

Only governs compelled testimonial evidence (not physical). Body, voice sample, lineup, handwriting not protected

53
Q

For a self-incriminating statement (such as Δ’s admission) to be admissible under 14th Amendment DPC, it must be

A

free and voluntary as determined by TOTC (not motivated by police coercion or official pressure)

54
Q

Interrogation

A

free and voluntary as determined by TOTC (not motivated by police coercion or official pressure)

55
Q

The only result of Miranda violation (failure to give warning before custodial interrogation) is

A

inadmissibility in Π’s case in chief. OK to use to impeach credibility of Δ’s testimony, x-exam, etc.

56
Q

Waiver of miranda rights must be shown by

A

knowing, voluntary, intelligent conduct showing Δ’s explicit/implicit willingness to make statement based on TOTC (e.g., receiving Miranda but choosing to answer is likely sufficient)

57
Q

public safety exception to Miranda rights

A

Warnings need not be given if necessary for public safety (e.g., to ask downed robber where gun is, Δ has info about bomb that could go off in public)

58
Q

Double jeopardy

A

Prevents Δ from being criminally tried twice for the same offense arising from the same set of facts after a determination on the merits

59
Q

Jeopardy attaching to lesser included offense bars retrial for a greater offense, unless Π

A

could not have tried the 2nd crime at the time

60
Q

when does jeproady attach

A

when 1st witness sworn in (non-jury trial) or jury is impaneled (jury trial). Does not attach in civil proceedings

61
Q

Issue of Separate Sovereignities and Double Jeporady

A

Δ can be prosecuted for the same offense in different jx

62
Q

Exceptions permitting retrial

A

breach of plea bargain by Δ/Π,

retrial after Δ’s successful appeal,

trial is aborted for manifest necessity (e.g., med. emergency),

terminated by Δ not on merits, or

ends in hung jury

63
Q

6A

A

prevents elicitation of incriminating statements by government after formal charge and attaches the D right to counsel

64
Q

Violation of 6A requires

A

reversal

65
Q

Waiver of 6A

A

Δ’s knowing and intelligent relinquishment of right, considering TOTC (Δ’s character, circumstances).

66
Q

When can a D defense self (pro se)

A

Comptent

67
Q

Competency to stand trial - 6A. To be competent to stand trial, the defendant
must understand

A

the nature of the proceedings against him and be aware of the consequences of the proceedings.

68
Q

the right to counsel is

A

offense speific and attaches at indictment

69
Q

when in pre-trial identification is 6A needed

A

post-indictment lineup or showup, right to counsel at all times he is visible to witnesses

70
Q

Due process as it relates to 6A

A

applies to all pretrial IDs: Any lineup, showup, or photo ID is inadmissible as denying due process if it was unnecessarily suggestive + there is substantial likelihood of misidentification

71
Q

Exceptions to due process and 6A

A

necessary under circumstances (e.g., lineup is impractical because witness is near death), or ID is reliable based on a TOTC assessment

72
Q

Remedy for a pretrial identification that violates due process

A

Results of pretrial ID is per se inadmissible at trial, unless independent source exists under TOTC.

73
Q

TOTC factors

A

TOTC factors: opportunity to view Δ at scene, ease with which witness can ID Δ, prior misidentifications

74
Q

Duty to disclose exculpatory evidence

A

Π must disclose evidence that is favorable to Δ and material (reasonable probability of different outcome). Failure to disclose violates DPC and is grounds for reversing a conviction

75
Q

6A right to counsel includes the right to effective counsel. Effective assistance is generally presumed. To claim ineffective assistance, Δ must show

A

deficient performance + actual prejudice

76
Q

Deficient performance:

A

Show particular acts/omissions reasonably competent practitioner would not make

77
Q

Actual prejudice: Reasonable probability (20-25%) that the result

A

would have been different but for errors

78
Q

It is a 6A violation to represent more than one Δ when a conflict of interest jeopardizes rights of any co-Δ or adversely affects the attorney’s performance (burden on

A

Δ to show the conflict’s adverse effect)

79
Q

when can the D not go pro se

A

on appeal

80
Q

Right to speedy trial: Attaches under 6A once Δ arrested or charged (knowledge of charges is irrelevant). Remedy for violation

A

dismissal

81
Q

Violation factors

A

: unreasonable length of delay (e.g., 1 year), reason for delay (no due diligence by Π), whether Δ asserted right, prejudice to Δ (e.g., destruction of evidence, oppressive incarceration)

82
Q

8A deals with

A

cruel and unusual punishment

83
Q

When can the death penalty be imposed?

A

May be imposed for murder under a statute that gives judge or jury reasonable discretion, full information concerning Δ, and guidance in making the decision. Statute must not be vague and must allow sentencing body (jury) to consider all mitigating evidence

84
Q

when can the death pennalty may be Imposed

A

felony murder and acted with reckless indifference to human life

85
Q

When is the death penalty unconsiutional

A

if a death penalty statute does not give Δ a chance to present mitigating circumstances

86
Q

When can the death penalty not be imposed

A

minors @ time of offense, mentally disabled, legally insane @ time of execution

87
Q

Warrantless, even supcionless, road checkpoints have been upheld by the SC. You must show that

A

search was supported by issue realted to automobiles like the jusitication of highway safety like prevention of DUI

Checkpoints must be administered in a way that the officer discretion is every limited ie every other car

Do not detain the indiviuals for an unreasonable period of time

88
Q

When you discuss consent you should also discuss

A

whether consent was knowingly and voluntarily given

89
Q

Whether an indiviual validly consent is determined

A

objectively based on a rp officer owuld believe that the individual consented to the search and seizure

90
Q

As outline by the SC in Terry, an officer may stop and search and indiviual based on less than probable cause when

A

Officer must have reasonable suspicion based on speific and articulable facts the indiviual is engaged in criminal activity to stop the person PO can then question the indiviual

To search the person, the PO must have reasonable suspicion that he is armed and officer is possibly in danger

91
Q

In order to justify a warrantless search of car incident to arrest LEO must show

A

i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with, or

(ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.

92
Q

The government may not use administrative searches to investigate criminal activity. However,

A

discovery of evidence during the search does not invalidate the search

Things to remember for the Bar (21 decks)

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