Criminal Procedure

Question 1

4th Amendment

Answer 1

Provides that people should be free from unreasonable searches and seizures

Question 2

Seizure

Answer 2

Under the totality of the circumstances, a reasonable person would not feel free to decline officer’s requests or terminate encounter

Question 3

Arrests

Answer 3

Police take person into custody against their will for prosecution or interrogation
- Probable cause needed
- Warrant generally not needed to arrest someone in public place
- Police must have a warrant to effect a nonemergency arrest of a person in their home

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

Question 4

Terry Stops - Investigatory Detentions

Answer 4

Police can detain persons for investigatory purposes if (1) reasonable suspicion of criminal activity (2) supported by articulable facts
- If the police also have reasonable suspicion that the detainee is armed and
dangerous, they may frisk the detainee for weapons
- Police must act in diligent and reasonable manner in confirming or dispelling
suspicions
- When reasonable suspicion is based on an informant’s tip, there must be an indicia of
reliability

Question 5

Automobile Stops

Answer 5

• Police may stop car if reasonable suspicion to believe law was violated
• During routine traffic stops, a dog 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
• A dog “alert” to the presence of drugs can form the basis for probable cause for a
  search
  - **Police CANNOT use a drug sniffing dog outside of the home of a
  suspected drug dealer
• A police officer’s mistake of law (mistakenly believing that a car must have 2 working
  brake lights) does not invalidate a seizure as long as the mistake was reasonable
• An automobile stop constitutes a seizure for the driver AND passengers
  - Passengers have standing to raise a wrongful stop as a reason to exclude
  evidence found during the stop

Question 6

Information Checkpoints and Roadblocks

Answer 6

To be valid an Informational Roadblock must:
- Must stop cars on basis of neutral, articulable standard
- Must be designed to serve purpose closely related to problem pertaining to cars
and their mobility

Question 7

Pretextual Stops

Answer 7

If police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop

Question 8

4A - Evidentiary Search and Seizure Analysis Steps

Answer 8

1. Governmental conduct?
2. Standing?
3. Valid warrant? If not ->
4. Exception to warrant requirement?

Question 9

Standing for Reasonable Expectation of Privacy

Answer 9

Reasonable expectation of privacy with respect to place searched or item seized
- Determination is made on the totality of circumstances

Question 10

When does a person have a reasonable expectation of privacy?

Answer 10

• Person owned or had right to possess place searched
• Place searched is person’s home
• Person is overnight guest of owner
• Cell-site location and contents of the their cell phone!!

Question 11

No reasonable expectation of privacy?

Answer 11

• Sound of your voice
• Style of your handwriting
• Paint on outside of car
• Account records held by bank
• Location of car on public street or driveway
• Anything seen across open fields
• Anything seen from flying over public airspace
• Odors from luggage or car
• ***Garbage set out on curb for collection
  o Garbage not set out on CURB has a right to privacy

Question 12

Requirements for a Valid Search Warrant

Answer 12

Probable case AND Particularity

PC
- Warrant will only be issued if there is PC to believe that seizable evidence will be
found on the person or premises at the time the warrant is executed
- Officers must submit to a magistrate an affidavit setting forth circumstances
enabling the magistrate to make a determination of PC independent of the officers’
conclusions
Particularity
- Warrant must describe with particularity place to be searched and items to be
seized

Question 13

Use of Informants

Answer 13

Affidavit based on an informer’s tip must meet the “totality of circumstances” test
- Informant’s reliability and credibility or their basis for knowledge are relevant factors in
making this determination
- Informers ID not have to be revealed generally

Question 14

Search Warrant Execution

Answer 14

• Only police may execute warrant
• No 3rd parties unless identifying stolen property
• Violation of knock and announce rule will NOT result in suppression of evidence
• Police can detain occupants of the premises during a search, but the search warrant
  does not authorize a search of person found on the premises

Question 15

Exceptions to Warrant - Search Incident to Arrest

Answer 15

• Police can search after valid arrest
• Police can make protective sweep of area
• Search must be contemporaneous in time and place with arrest

Police may search passenger compartment (NOT THE TRUNK) incident to arrest if
- Arrestee is unsecured and may gain access to vehicle, OR
- Police reasonably believe evidence of offense for which person was arrested may be
found

Technological Searches
- Warrantless breath test permitted but not blood test
- Physical attributes of cell phone may be searched but not data

Police may make an inventory search of the arrestee’s belongings pursuant to established department procedure … Similarly, the police may make an inventory search of an impounded vehicle

Question 16

Exceptions to Warrant - Automobile Exception

Answer 16

• If police have PC to believe vehicle contains fruits, instrumentalities, or evidence of a
  crime, they may search entire vehicle and any container that might reasonably contain
  the item
• PC necessary to justify search of car CAN ARISE AFTER CAR IS STOPPED
• Search extends to passengers belongings

Question 17

Exceptions to Warrant - Plain View Doctrine (4 elements)

Answer 17

Police may make warrantless seizure when:
1. Legitimately on the premises
2. Discover evidence, contraband, or fruits or instrumentalities of crime
3. See evidence in plain view
4. Have PC to believe item is evidence, contraband, or fruits or instrumentalities of crime
(gotta be immediately apparent)

***Inadvertently discovering the item is NO LONGER a requirement of this test

Question 18

Exceptions to Warrant - Consent

Answer 18

• Warrantless search is valid if police have voluntary consent

Authority to give Consent?
- Person with apparent equal right to use or occupy property may consent
- Occupant cannot give valid consent when co-occupant is present and objects
- If co-occupant is removed unrelated reason, police may act on consent of remaining
occupant

Question 19

Exceptions to Warrant - Stop and Frisk

Answer 19

• Terry Stop
  - Brief detention for purpose of investigating suspicious conduct
• Terry Frisk
  - Pat down of outer clothing and body to check for weapons
  - Officer may seize any item that officer reasonably believes, based on plain feel, is
  weapon or contraband
• Automobile Stops
  - If officer believes driver or passenger may be armed and dangerous, officer may -
  - Frisk suspected person
  - Search vehicle in areas where weapon may be placed

Question 20

Exceptions to Warrant - Hot Pursuit, Evanescent Evidence, and Emergency Aid

Answer 20

Evanescent Evidence
- Evidence that might disappear quickly if police took time to get a warrant

Hot Pursuit
- Police in hot pursuit of fleeing felon may make warrantless search and seizure and
may pursue suspect into private dwelling
- Fleeing person suspected of misdemeanor, their flight does not always justify
a warrantless entry into home
- If police are not within 15 minutes behind the fleeing felon, this IS NOT a hot
pursuit!

Emergency Aid/Community Caretaker Exception
- Police may enter premises without warrant if officer faces emergency that
threatens health or safety

Question 21

Exceptions to Warrant - Administrative Inspections and Searches

Answer 21

• Exceptions permitting warrantless searches that have been upheld:
  o Searches of airline passengers prior to boarding
  o Drug tests of public-school students involved in extracurricular activities
   This includes being randomly drug tested before attending EHS Prom
• Public School Searches
  o A warrant or PC is NOT required for public school officials to search public school
  students OR their possessions, only if reasonable grounds necessary
  o Search reasonable if:
   Offers moderate chance of finding evidence of wrongdoing
   Measures reasonably related to search objectives
   Search not excessively intrusive in light of age and sex of student and nature
  of infraction

Question 22

Exceptions to Warrant - Wiretapping and Eavesdropping

Answer 22

Wiretapping constitutes a search under the 4A
- A valid warrant authorizing a wiretap may be issued if:
1. There is showing of PC
2. The suspected persons involved in the conversations to be overheard are named
3. The warrant describes with particularity the conversations that can be overheard
4. The wiretap is limited to a short period of time
5. The wiretap is terminated when desired info has been obtained, and
6. Return is made to the court, showing what conversations have been intercepted

Unreliable Ear
- Speaker assumes risk other person consents to government monitoring or is an
informer

Uninvited Ear
- Speaker has no 4A claim if they make no attempt to keep conversation private

Question 23

Exceptions to Warrant - Method of Obtaining Evidence that Shocks the Conscience

Answer 23

Evidence obtained in a manner that shocks the conscience – in other words, a manner that offends a “sense of justice” – is inadmissible under the Due Process Clause

Question 24

6A Right to Counsel

Answer 24

Applies to all critical stages of prosecution after judicial proceedings have begun

WAIVER - MUST BE KNOWING AOND VOLUNTARY

Stages when 6A Right to Counsel Applies
- Post – indictment interrogation
- Preliminary hearings to determine PC to prosecute
- Arraignment
- Post – charge lineups
- Guilty plea and sentencing
- Felony trials
- Misdemeanor trials when imprisonment actually imposed
- Overnight recesses during trial
- Appeals as matter of right

Stages when 6A Right to Counsel DOES NOT Apply
- Blood sampling
- Taking of handwriting or voice exemplars
- Pre-charge or investigative lineups
- Photo identifications
- Preliminary hearings to determine PC to detain
- Brief recesses during D’s testimony
- Discretionary appeals
- Parole and probate revocation proceedings
- Post-conviction proceedings

Question 25

6A Right to Counsel is offense specific meaning?

Answer 25

• The D may be questioned regarding unrelating, uncharged offenses without
  violating 6A right to counsel
• Two offenses will be considered different if each requires of an additional element
  that the other crime does not require

Question 26

Miranda Warnings

Answer 26

• Required when person in custodial interrogation
• Person must be told
  o Right to remain silent
  o Anything said can be used against them in court
  o Right to attorney
  o If person cannot afford attorney, one will be appointed
• Waiver must be knowing and voluntary
• Anyone in the custody of the government and accused of a crime must be given
  Miranda warnings prior to interrogation by the police
• Miranda Warnings necessary only if detainee knows they are being interrogated by
  government agent
• Miranda warnings do not need to be given by an informant who the D does not know is
  working for the police
• Security guards at a store generally are not government agents or working for police so
  they do not need to Mirandize people

Question 27

Two-Step Process for Determining Custody

Answer 27

• 1. Whether a reasonable person would feel free to terminate interrogation and leave
• 2. Whether environment presents same inherently coercive pressures as station house
     questioning

Question 28

What constitutes an interrogation?

Answer 28

Any words or conduct by police that are likely to elicit an incriminating response

Miranda warnings are not required for spontaneous statements

Question 29

Invocation of Right to Remain Silent

Answer 29

• Must be unambiguous
• Police must scrupulously honor request by not badgering detainee
• Police may ask questions about a different crime as long as they scrupulously honor
  the request to not ask about the crime the arrestee invoked his right for!

Question 30

Invocation of Right to Counsel

Answer 30

• Must be unambiguous
• All questioning must cease until counsel has been provided, unless detainee
  o Waives right to counsel or
  o Is released back to normal life and 14 days have passed since release

Question 31

Effect of Miranda Violation?

Answer 31

• Evidence generally inadmissible under exclusionary rule
• Statements may be used to impeach d’s trial testimony but not used as evidence of
  guilt!***
• Detainee gives police information that leads to nontestimonial evidence? ->
  Evidence suppressed if failure to give Miranda warnings was purposeful BUT if
  failure to give Miranda warnings was not purposeful likely admitted

Question 32

Question first, Warn Later

Answer 32

If the police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the “question first, warn later” nature of the questioning was intentional

BUT the confession will be admissible if the failure to give Miranda warnings was an accident and unplanned

Question 33

Public Safety Exception to Miranda

Answer 33

Police can interrogate without Miranda warnings when reasonably prompted by a concern for public safety

Question 34

6A Right to Counsel

Answer 34

• 6A right to counsel at post-charge lineup or show up
• No right to counsel at photo identifications or when police take physical evidence,
  such as handwriting exemplars or fingerprints

Due Process Standard
- D can attack identification if it is unnecessarily suggestive and there is substantial
likelihood of misidentification

Question 35

Exclusionary Rule

Answer 35

Unconstitutionally obtained evidence excluded at trial and all fruits of poisonous tree must also be excluded

… obtained in violation of a d’s 4, 5, and 6A rights

Question 36

Fruits of Poisonous Tree exceptions

Answer 36

• Fruits derived from statements in violation of Miranda
• Evidence obtained from independent source
• Attenuation: Causal link between police misconduct and evidence is broken
• Defendant’s intervening act of free will
• Inevitable discovery
• Violations of knock and announce rule

Question 37

Good faith reliance on defective warrant and the exclusionary rule

Answer 37

Exclusionary rule does not apply when the police arrest someone erroneously but in good faith thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law

Question 38

Exceptions to Good Faith Reliance on Defective Warrant

Answer 38

• Affidavit so lacking in PC no reasonable officer would rely on it
• Affidavit so lacking in particularity no reasonable officer would rely on it
• Officer or prosecutor lied to or misled magistrate
• Magistrate is biased and wholly abandoned neutrality

Question 39

Harmless Error Test

Answer 39

If illegal evidence admitted, conviction should be overturned on appeal unless government can show beyond a reasonable doubt that error was harmless

NEVER APPLIES TO THE DENIAL OF THE RIGHT TO COUNSEL! -> THIS ERROR IS NEVER HARMLESS!!

Question 40

Preliminary Hearing to Determine PC to Detain

Answer 40

If PC has not already been determined and there are significant constraints on an arrestee’s liberty (example, jail or bail), a preliminary hearing to determine PC must be held within a reasonable time (48 hours)

Question 41

Grand Jury Proceedings

Answer 41

• Conducted in secret
• Defendant has no right to notice
• No right to counsel
• No right to have evidence excluded
• No right to challenge subpoena on 4A grounds
• Conviction from indictment issued by grand jury from which minority group
  excluded will be reserved

Question 42

Speedy Trial Elements

Answer 42

• RTS been violated is made by an evaluation of the totality of the circumstances
  o LRAP
  o L – Length of delay
  o R – Reason for delay
  o W – Whether defendant asserted right
  o P – Prejudice to defendant
• **Remedy is dismissal with prejudice
• RTS does not apply until D has been charged or arrested!

Question 43

Prosecutorial duty to disclose evidence

Answer 43

Failure to disclose material, exculpatory evidence is grounds for reversing conviction if:
- Evidence is favorable to defendant and
- Prejudice has resulted that is there is a reasonable probability that the result of the
case would have been different if the undisclosed evidence had been presented at
trial LOL

Question 44

Right to unbiased Judge

Answer 44

Due process violated if judge has actual malice against defendant or has financial interest in trial result

Question 45

Right to trial by Jury

Answer 45

No right to jury trial for petty offenses – must be serious offenses (imprisonment for more than 6 months)

Must have at least 6 jurors

Verdict must be unanimous

Question 46

Peremptory Challenges

Answer 46

• Generally, may use peremptory challenge for any reason
• Cannot challenge jurors solely on basis of race or gender

Question 47

Challenges for Cause

Answer 47

• Juror should be excluded for cause if juror’s views would prevent or substantially
  impair performance of duties

Question 48

6A Right to Counsel (Waiver and IAC)

Answer 48

• Defendant may waive right to counsel if:
  - Waiver is knowing and intelligent
  - Defendant is competent to proceed pro se
• Effective assistance of counsel
  - Deficient performance by counsel
  - But for the deficiency, result of proceeding would have been different

Question 49

6A Right to Confront Witnesses

Answer 49

Not absolute right
- Face-to-face confrontation is not required when preventing such confrontations
serves an important public purpose (for example, protecting child witnesses from
trauma)

Question 50

Co-defendant’s confessions?

Answer 50

Co-Defendant’s confession that implicates the other is not allowed!
- Exceptions… may be admitted if:
- All portions referring other defendant can be eliminated
- Confessing defendant takes stand and is subject to cross-examination, or
- Confession use to rebut defendant’s claim that confession was obtained
coercively

Question 51

Prior testimonial evidence not admitted unless:

Answer 51

o Declarant unavailable and
o Defendant had opportunity to cross-examine declarant at time statement was
made

Question 52

Guilty Pleas

Answer 52

• Must be voluntary and intelligent
• Know nature of charge and elements of it
• Max and min penalty
• Right not to plead guilty and if they do, they waive trial

Question 53

Does the Judge have to accept a plea bargain?

Answer 53

NOPE - will be enforced against P and D but Judge does not have to accept the plea

Question 54

Death Penalty?

Answer 54

• Must be imposed under statutory scheme that gives jury reasonable discretion, full
  information, and guidance
• No death penalty for rape
• Cannot execute prisoner who is insane at time of execution
• No death penalty for person who is intellectually disabled
• No death penalty for person who were under 18 years old at the time they committed
  their offense

Question 55

5A Double Jeopardy Clause

Answer 55

• Person may not be retried for same offense once jeopardy has attached
• Derives from the 5th Amendment

Question 56

When does Jeopardy Attach?

Answer 56

• Jury trial -> Empaneling and swearing of jury
• Bench Trial -> When first witness is sworn in

Question 57

Exceptions to DJ Clause?

Answer 57

Exceptions Permitted Retrial
- First trial ends in hung jury
- Manifest necessity to abort first trial
o Defendant medical emergency – like having a heart attack mid-trial
- Defendant successfully appealed conviction (unless ground for reversal was insufficient
evidence)
- Defendant breached plea bargain
- Defendant could have been tried for multiple charges in single trial but chose to have
offenses tried separately

Question 58

Test for Same Offense (Blockburger)

Answer 58

Two crimes are the same offense unless each crime requires proof additional element that other does not!

Question 59

Double Jeopardy and Lesser Included Offenses

Answer 59

• Attachment of jeopardy for greater offense bars retrial for lesser included offense
• Attachment of jeopardy for lesser included offense bars retrial for greater offense

Question 60

Double Jeopardy and Separate Sovereigns

Answer 60

• Prohibition against double jeopardy does not apply to trails by separate sovereigns
  o State and federal government = separate sovereigns
  o 2 states = separate sovereigns
  o *** State and its municipalities = same sovereign SO NOT ALLOWED!!

Question 61

5A Privilege Against Self-Incrimination

Answer 61

Privilege against self-incrimination can be asserted by any person in any type of case when answer to question might tend to incriminate them

The right to remain silent does not include the right to protect others from incrimination
o A defendant’s refusal to cooperate with an investigation of the criminal conspiracy
of which he was a member may properly be considered in imposing sentence
o This is because the 5A right to remain silent does not afford a privilege to refuse to
incriminate others

Question 62

Comments on Defendant’s Silence by Prosecutor?

Answer 62

• Prosecutor may not comment on defendant’s silence after receiving Miranda warnings
  or at trial
• Prosecutor can comment on defendant’s failure to take stand when in response to
  defense’s assertion that defendant was not allowed to explain story
• If suspect remains silent before Miranda warnings, silence can be used against them