Criminal Procedure

Question 1

Fourth Amendment Search and Seizure

Answer 1

The Fourth Amendment prohibits unreasonable searches and seizures when there is government action, and the property or place to be searched or seized is one in which the defendant has a reasonable expectation of privacy.

Question 2

Government Conduct

Answer 2

To demonstrate government conduct, the defendant must prove the government or police were involved in the unreasonable search and seizure.

Question 3

Reasonable Expectation of Privacy

Answer 3

The defendant must also prove he has a reasonable expectation of privacy as to the places searched and items seized by the government.

Question 4

Seizure of a Person

Answer 4

A seizure occurs if under the totality of the circumstances, a reasonable person would not feel free to leave. Types of seizures include arrest, stop and frisk, police checkpoints, and traffic stops.

Question 5

Arrest Warrant

Answer 5

An arrest in the defendant’s home generally requires an arrest warrant. However, an arrest warrant is not required to make an arrest in a public place. If an officer witnesses a felony or misdemeanor, he can make a warrantless arrest. Also, if an officer has probable cause to believe that a felony has been committed (not witnessed by the officer), an officer can make a warrantless arrest.

Question 6

Terry Stop and Frisk

Answer 6

An officer can stop a person if he has reasonable suspicion that the person is engaged in or has engaged in criminal activity.

Question 7

Police Checkpoints

Answer 7

Police checkpoints are generally valid, as long as the stop is conducted in a non-discriminatory manner and the purpose of the checkpoint is for an articulable reason beyond general crime prevention.

Question 8

Traffic Stops

Answer 8

Traffic stops are valid if the officer has reasonable suspicion or probable cause that a traffic law has been violated.

Question 9

Search

Answer 9

A search occurs when governmental conduct violates the defendant’s reasonable expectation of privacy. A warrant is required for all searches unless an exception applies.

Question 10

Valid Search Warrant

Answer 10

To be valid, a search warrant must 1) be issued by a neutral magistrate, 2) be based upon probable cause, and 3) describe with particularity the defendant and crime or the places to be searched and items to be seized.

Question 11

Knock and Announce Rule

Answer 11

Subject to certain exceptions, the police must also announce their presence and state their purpose.

Question 12

Defective Warrant

Answer 12

Evidence collected in violation of a defendant’s Fourth Amendment right to privacy may nonetheless be admissible if police officers acted in good faith reliance upon a defective search warrant as measured by a reasonable person standard.

Note - Only discuss if there are facts indicating the warrant was defective

Question 13

Exceptions to a Warrantless Search

Answer 13

Warrantless searches constitute a Fourth Amendment violation, and evidence seized during the search will be inadmissible unless subject to an exception.

(ESCAPES)
Exigent Circumstances
SILA
Consent
Automobiles
Plain View
Evidence from Administrative Search
Stop and Frisk

Question 14

Frisk of a Person

Answer 14

The officer can then frisk or pat down the outer clothing of the defendant for purposes of officer safety. If the officer feels an object whose identity is immediately obvious as contraband, it can be seized under the “plain feel” exception.

Question 15

Automobile Frisk

Answer 15

If an officer lawfully stops a car due to reasonable suspicion of a traffic violation, the officer may frisk the inside of the car if he has reasonable suspicion there is a weapon in the car, limited to the areas that may contain a weapon.

Question 16

Search Incident to Lawful Arrest (SILA)

Answer 16

A search incident to a lawful arrest must be reasonable in scope and incident to an arrest based on probable cause.

Question 17

Probable Cause

Answer 17

Probable cause to arrest may come from the police officer’s own personal observations, information from a reliable, known informant or unknown informant that can be independently verified, or evidence seized during stops based on reasonable suspicion, plain view, or a consensual search.

Question 18

Scope of Search

Answer 18

The police may conduct a contemporaneous search of the arrestee and his immediate surrounding area (i.e., wingspan), such as pockets and containers. If the arrestee is at home, the police may conduct a protective sweep of the home to ensure officer safety. If the arrestee is in a vehicle, the police may search the glove compartment if the arrestee is still within reaching distance of the compartment or if the officer has probable cause to believe it contains evidence of a criminal activity.

Question 19

Automobile Exception

Answer 19

Under the automobile exception, the police can search any part of the defendant’s car if they have probable cause to believe it contains contraband or other evidence of a crime.

Question 20

Plain View Doctrine

Answer 20

No warrant is required to seize evidence in plain view if the police are lawfully in the location from which evidence can be viewed and the criminal nature of the item is immediately apparent.

Question 21

Exigent Circumstances

Answer 21

Under a totality of the circumstances test, exigent circumstances may make a warrantless search constitutional if probable cause exists. Exigency may be determined by many factors, including hot pursuit of a fleeing felon, reasonable apprehension that a delay in obtaining a warrant would result in immediate danger or the destruction of evidence, or police or public safety.

Question 22

Consent

Answer 22

If a party consents to a search, a warrant is not required. The consent must be voluntary, and there must be no threats of harm, compulsion, or false assertion of lawful authority.

Question 23

Exclusionary Rule and Fruit of the Poisonous Tree

Answer 23

The exclusionary rule applies to evidence seized as a result of government illegality, as well as the “fruit of the poisonous tree,” which is any evidence derived from the illegal government action.

Question 24

Name the Exceptions to the Exclusionary Rule

Answer 24

Inevitable discovery, independent source, passage of time, good faith

Mnemonic - PIIG (passage of time, inevitable discovery, independent source, good faith)

Question 25

Inevitable Discovery

Answer 25

If the evidence would have been discovered through a legal means, despite the illegal action, the evidence is admissible.

Question 26

Independent Source

Answer 26

If the evidence was discovered through an independent source unrelated to the taint, the evidence is admissible.

Question 27

Passage of Time

Answer 27

If sufficient time has passed between the illegal action and the discovery of the evidence, the evidence will be admissible.

Question 28

Good Faith

Answer 28

If the police execute a warrant believing in good faith it is valid, but the warrant is later determined to be defective, the evidence will be admissible.

Question 29

Fifth Amendment Rights

Answer 29

The Fifth Amendment provides that no person shall be compelled in a criminal case to testify against himself. The right applies to testimonial evidence coercively obtained by the police.

Question 30

Miranda Rights

Answer 30

Police officers must give defendants Miranda warnings when the defendant is in custody and being interrogated. Miranda warnings inform the defendant of his right to remain silent and the right to an attorney.

Question 31

Custody

Answer 31

A person is in custody if he reasonably believes he is not free to leave or is otherwise deprived of his freedom in a significant way.

Question 32

Interrogation

Answer 32

A person is subject to an interrogation if the police engage in any conduct that is likely to elicit an incriminating response.

Question 33

Waiver of Miranda

Answer 33

A defendant may waive his Miranda rights with a clear, unambiguous, and voluntary statement, and the waiver may not be the result of government coercion.

Question 34

Effect of Asserting Right to Counsel

Answer 34

If the defendant unambiguously asserts his right to an attorney, the police cannot question him without either providing an attorney or obtaining a waiver of the right to counsel.

Question 35

Re-approaching the Defendant

Answer 35

If the defendant invokes his Miranda rights, the police may not re-approach the defendant and question him about the charged crime or any other crime.

Question 36

Spontaneous Statements

Answer 36

If the defendant voluntarily makes a statement, his statement will be admissible even if he had previously invoked his Miranda rights.

Question 37

Standing

Answer 37

A defendant may only assert his own Miranda rights. He may not assert a Miranda rights violation on behalf of another person, such as a co-defendant.

Question 38

Exclusion of Statements

Answer 38

Statements made in violation of Miranda rights will be excluded, but they are admissible for impeachment purposes if the defendant chooses to testify, and the prosecution seeks to impeach (discredit) the defendant’s testimony. Any physical fruits of the confession, such as evidence seized in reliance on the statements made in the confession are not excluded.

Question 39

Sixth Amendment Right to Counsel

Answer 39

The Sixth Amendment right to counsel automatically applies at all critical stages of prosecution after formal proceedings begin. The right attaches when the state initiates prosecution through an indictment or formal charge and ends at the sentencing stage.

Question 40

Offense Specific

Answer 40

The Sixth Amendment does not prevent the police from questioning the defendant about unrelated offenses that are not the charged crimes in question.

Question 41

Waiver of Right to Counsel

Answer 41

If a defendant waives his Sixth Amendment right to counsel, it must be knowing and voluntary.

Question 42

Due Process (Lineups)

Answer 42

Under the Due Process Clause, applicable to the states under the Fourteenth Amendment and the federal government under the Fifth Amendment, police line-ups must not be conducted in a manner that is unnecessarily suggestive or provides a substantial likelihood of misidentification.

Question 43

Administrative Inventory Search

Answer 43

A search of an arrestee’s property/impounded car after a lawful arrest is valid as long as the search was performed according to standardized criteria.

Question 44

Curtilage

Answer 44

Curtilage is the area in the immediate vicinity of a person’s home where the person has a reasonable expectation of privacy.

Question 45

Sensory Enhancement

Answer 45

Police may not use electronic sensory enhancement equipment that is not available to the general public to collect evidence unless they have a valid warrant to do so.

Question 46

Statement of Co-Defendant

Answer 46

Where two defendants are jointly tried and one of them confesses, the right to confront adverse witnesses prohibits the use of that statement against the other defendant unless the statement can be redacted or the co-defendant who confessed takes the stand.

Question 47

Plea Bargain

Answer 47

A defendant can settle by plea bargain to receive a lesser charge and/or lighter sentence if he is competent, understands the charge, and understands the consequences of his guilty plea.

Question 48

Bail

Answer 48

Under the Eighth Amendment, bail shall not be excessive or unduly high based on the seriousness of the offense, the weight of the evidence, and the defendant’s financial means.

Question 49

Lying to Gain Access

Answer 49

An officer may not lie about having a warrant in order to gain consent to enter a home. However, the police may otherwise use deception to obtain consent. A court will look to the totality of the circumstances to determine if the consent was valid.

Question 50

Validity of Search Warrant

Answer 50

A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, supported by oath of affidavit, and describe in detail the place to be searched and items to be seized.

Question 51

Probable Cause for Search Warrant

Answer 51

A court will look to the totality of the circumstances to determine if probable cause for a search warrant exists.