Criminal Procedure Flashcards

Question

Can warrants be used to search the homes of third-party non-suspects?

Answer 1

Yes. A warrant may be obtained to search premises belonging to non-suspects, as long as there is probable cause to believe that evidence will be found there.

Answer 2

Only police may execute a warrant. No 3d party may be present unless they are used to identify stolen property. Police must knock and announce. - Violations of the knock and announce rule will not result in the suppression of evidence

Answer 3

A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant. - Neither does the warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed.

Answer 4

Incident to a constitutional arrest (that is, one based on probable cause to believe a law has been violated and that meets other constitutional requirements), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence. - The police may also make a protective sweep of the area if they believe accomplices may be present. The search must be contemporaneous in time and place with the arrest, but, at least with respect to searches of automobiles, the term “contemporaneous” does not necessarily mean “simultaneous.” - If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.

Answer 5

The person and the areas within the person’s wingspan.

Answer 6

The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search: The arrestee is unsecured and still may gain access to the interior of the vehicle; OR The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

Answer 7

When the officer tells them that they're under arrest and attempts to restrain them (EX: w/ handcuffs). (???)

Answer 8

In assessing the validity of a search incident to arrest involving things that did not exist when the 4A was adopted (for example, cell phones, blood alcohol tests), the court will balance the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which the search is needed to promote legitimate governmental interests.

Answer 9

The physical attributes of a cell phone may be searched, but not the data.

Answer 10

At the police station, the 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 (and can search any containers within the vehicle).

Answer 11

PC THAT THERE IS ILLEGAL ACTIVITY WITHIN THE CAR. If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle (including the trunk) and any closed container that might reasonably contain the item for which they had probable cause to search. - If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later. However, if the vehicle is parked within the curtilage (for example, the driveway) of a suspect’s home, the police may not search the vehicle without a warrant. - If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant. - The PC necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped, but the probable cause must arise before anything or anybody is searched.

Answer 12

The police may make a warrantless seizure when they: (1) are legitimately on the premises; (2) discover evidence, fruits or instrumentalities of crime, or contra band; (3) see such evidence in plain view; and (4) have PC to believe (it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime.

Answer 13

A warrantless search is valid if the police have a voluntary consent. Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent. - The scope of the search may be limited by the scope of the consent, but it generally extends to all areas to which a reasonable person under the circumstances would believe it extends. - Police saying that they have a warrant negates consent.

Answer 14

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant. Nevertheless, if a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (for example, a lawful arrest), the police may act on the consent of the remaining occupant, even if the removed co-occupant had refused consent.

Answer 15

A police officer may stop a person without PC for arrest if they have an articulable and reasonable suspicion of criminal activity. The officer may require the detainee to state their name, and if the officer also reasonably believes that the person may be armed and presently dangerous, the officer may conduct a protective frisk.

Answer 16

The scope of the frisk is generally limited to a pat down of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing. - During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband, and such items are admissible as evidence.

Answer 17

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

Answer 18

Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant. Officers may obtain evanescent evidence (not blood draw though) if it's practical to do so.

Answer 19

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling. - 15 minutes behind is not hot pursuit. - Fleeing Felon? If the fleeing person is suspected of a misdemeanor, their flight does not always justify a warrantless entry into a home. The officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies a warrantless entry. - If the police are truly in hot pursuit of a felon, they can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible.

Answer 20

A police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public.

Answer 21

A warrant or probable cause is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary. A school search will be held to be reasonable only if: (1) It offers a moderate chance of finding evidence of wrongdoing; (2) The measures adopted to carry out the search are reasonably related to the objectives of the search; and (3) The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction.

Answer 22

Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes a search under the Fourth Amendment. A valid warrant authorizing a wiretap may be issued if (1) there is showing of probable cause, (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 the desired information has been obtained, and (6) return is made to the court, showing what conversations have been intercepted. - FALSE FRIEND + UNINVITED EAR: A speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation or is an informer wired for sound or taping the conversation. A speaker has no Fourth Amendment claim if they make no attempt to keep a conversation private.

Answer 23

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. - The Harmless Error Test applies. The conviction need not be overturned if there is overwhelming evidence of guilt.

Answer 24

The 6A right to counsel applies to all CRITICAL STAGES of prosecution after judicial proceedings have begun (EX: formal charges have been filed). - The 6A prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless the defendant has waived their right to counsel.

Answer 25

The 6A right to counsel is offense specific. Thus, even though a defendant’s 6A rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment right to counsel (although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda). - Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Answer 26

The 6A right to counsel may be waived. The waiver must be knowing and voluntary. - The waiver does not necessarily require the presence of counsel (at least if counsel has not actually been requested by the defendant but rather was appointed by the court).

Answer 27

At non-trial proceedings (such as post-indictment interrogations), the HARMLESS ERROR rule applies to deprivations of counsel. But if the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic REVERSAL OF THE CONVICTION, even without a showing of specific unfairness in the proceedings. Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal.

Answer 28

A statement obtained in violation of a defendant’s 6A right to counsel, while not admissible in the prosecution’s case-in-chief, may be used to impeach the defendant’s contrary trial testimony. This rule is similar to the rule that applies to Miranda violations.

Answer 29

Miranda warnings are required when a suspect is in custodial interrogation (in custody and accused of a crime). Miranda warnings are necessary only if the detainee knows that they are being interrogated by a government agent. - NOTE: The Miranda requirements do not apply to an uncharged witness testifying before a grand jury, even if the witness was compelled by subpoena to be there.

Answer 30

For an admission or confession to be admissible under the 5A privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that: (1) The person has the right to remain silent; (2) Anything the person says can be used against them in court; (3) The person has the right to presence of an attorney; and (4) If the person cannot afford an attorney, one will be appointed for them if they so desire.

Answer 31

(1) A reasonable person would not feel free to terminate the interrogation and leave. - TOTC. - Does the environment present the same inherently coercive pressures as a station house questioning? (2) “Interrogation” includes any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee. - Miranda warnings not required before spontaneous statements. - NOTE: routine booking questions do not constitute interrogation.

Answer 32

After receiving Miranda warnings, a detainee has several options: do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.

Answer 33

If the detainee does not respond at all to Miranda warnings, the Court will not presume a waiver, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney. Therefore, the police may continue to question the detainee.

Answer 34

The detainee may waive their rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was knowing and voluntary. - TOTC used. - It appears that if the government can show that the detainee received Miranda warnings and then chose to answer questions, that is probably sufficient.

Answer 35

The invocation of the right to remain silent must be unambiguous. The police must scrupulously honor the request by not badgering the detainee.

Answer 36

The invocation of the right to an attorney must be unambiguous. When properly invoked, ALL QUESTIONING MUST CEASE until counsel has been provided unless the detainee (1) waives the right to counsel OR (2) is released back to normal life and 14 days have passed since release. - If silence invoked, can question about another time. If counsel requested, the police may not resume interrogating the detainee until counsel is provided or the detainee initiates the questioning, EVEN IF THEY'RE QUESTIONING ABOUT ANOTHER OFFENSE.

Answer 37

Evidence is generally inadmissible. However, the statements may be used to impeach D's trial testimony (but not used as evidence of guilt). If the detainee gives the police information that leads to non-testimonial evidence, then the evidence is suppressed if the failure to give Miranda warnings was purposeful but will likely be admitted if the failure was not purposeful.

Answer 38

The police can interrogate without Miranda warnings when they are reasonably prompted by a concern for public safety.

Answer 39

A defendant can attack an identification if it is UNNECESSARILY SUGGESTIVE and if there is a SUBSTANTIAL LIKELIHOOD of misidentification.

Answer 40

The remedy for unconstitutional identifications is exclusion of the in-court identification. - Can't bring the person into court to testify. EXCEPTION: The witness may make an in-court identification if it has an independent source (something else providing the witness with knowledge).

Answer 41

Admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required. The government bears the burden of proving that: (1) counsel was present; (2) the accused waived counsel; or (3) there is an independent source for the in-court identification. The defendant must prove an alleged due process violation.

Answer 42

When evidence is unconstitutionally obtained, the evidence is excluded from trial. Evidence obtained from the exploitation of unconstitutionally obtained evidence is excluded at trial.

Answer 43

- Fruits derived from statements in violation of Miranda are okay. - Evidence obtained from an independent source makes the evidence okay. - Attenuation: Causal link between the police misconduct and the evidence is broken--makes the evidence okay. - D's intervening act of free will makes the evidence okay. - Inevitable discovery makes the evidence okay. - Violations of the Knock and Announce rule have no bearing on the ER.

Answer 44

Make evidence admissible at trial: - Independent source. - Intervening act of free will (of D). - Inevitable discovery.

Answer 45

The 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. The exceptions to Good Faith Reliance on a defective warrant are as follows: (1) The affidavit is so lacking in PC so that no reasonable officer would rely on it. (2) The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it. (3) The police officer or prosecutor lied to or misled the magistrate when seeking the warrant. (4) The magistrate is biased and therefore has wholly abandoned their neutrality.

Answer 46

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond reasonable doubt that the error was harmless. The conviction will be upheld if it would have resulted despite the improper evidence. In a habeas proceeding where the petitioner claims constitutional error, the petitioner should be released if they can show that the error had a substantial and injurious effect or influence in determining the jury’s verdict; if the judge is in grave doubt as to the harm, the petition must be granted. - NOTE: The harmless error standard never applies to the denial of the right to counsel at trial; this error is never harmless.

Answer 47

- Conducted in secret. - D has no right to notice. - No right to counsel. - No right to have evidence excluded (even if unconstitutionally obtained). - No right to challenge subpoena on 4A grounds. - Conviction from indictment issued by grand jury from which minority group was excluded will be reversed.

Answer 48

LRWP. - Length of delay. - Reason for delay. - Whether D asserted the right. - Prejudice to D. Remedy is dismissal with prejudice.

Answer 49

The failure to disclose material, exculpatory evidence is grounds for reversing a conviction if (1) the evidence is favorable to D and (2) prejudice has resulted (result of trial may have been different). - Even inadvertent failure to disclose can result in reversal.

Answer 50

There is no constitutional right to jury trial for petty offenses, but only for serious offenses. An offense is serious if imprisonment for more than six months is authorized. - NOTE: There is no right to jury trial in juvenile delinquency proceedings.

Answer 51

A jury must be composed of at least 6 people and the verdict must be unanimous.

Answer 52

Generally, peremptory challenges may be used for any reason. However, you cannot challenge jurors solely on the basis of race or gender.

Answer 53

A juror should be excluded for cause if the juror's views would prevent or substantially impair performance of their duties.

Answer 54

A defendant has a right to counsel. Violation of this right at trial, including erroneous disqualification of the defendant’s privately retained counsel, requires reversal. For non-trial denials, the harmless error test is applied.

Answer 55

The 6A right to counsel includes the right to effective counsel. This right extends to the first appeal. Effective assistance of counsel is generally presumed. To establish ineffective assistance of counsel, it must be shown that (1) there was a deficient performance by counsel (specific deficiencies) and (2) but for the deficiency, the result of the proceeding would have been different. - If counsel admits D's guilt, this error mandates a new trial.

Answer 56

The 6A grants to a defendant in a criminal prosecution the right to confront adverse witnesses. The right is not absolute: Face-to-face confrontation is not required when preventing such confrontation serves an important public purpose (for example, protecting child witnesses from trauma). Also, a judge may remove a disruptive defendant, and a defendant may voluntarily leave the courtroom during trial.

Answer 57

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with the defendant’s own confession, which is admitted. However, such a statement may be admitted if: (1) All portions referring to the other defendant can be eliminated, (2) The confessing defendant takes the stand and subjects themself to cross-examination with respect to the truth or falsity of what the statement asserts; OR (3) The confession of the non-testifying co-defendant is being used to rebut the defendant’s claim that their confession was obtained coercively.

Answer 58

Per the confrontation clause, prior testimonial evidence is not admitted unless: (1) the declarant is unavailable AND (2) the defendant had the opportunity to cross-examine the declarant at the time the statement was made.

Answer 59

The state must prove guilt beyond a reasonable doubt. The burden may be on D to prove affirmative defenses. A presumption that shifts the burden of proof to D violates the 14A.

Answer 60

A judge is to give a jury instruction requested by the defendant or the prosecution if the instruction is correct, has not already been given, and is supported by sound law.

Answer 61

The guilty plea must be voluntary and intelligent. This must be done by addressing the defendant personally in open court on the record. Specifically, the judge must be sure that the defendant knows and understands things such as: - The nature of the charge to which the plea is offered and the crucial elements of the crime charged; - The maximum possible penalty and any mandatory minimum; and - That the defendant has a right not to plead guilty and that if they do plead guilty, they waive the right to trial. NOTE: The judge need not personally explain the elements of each charge to the defendant on the record; it is sufficient that the record reflects that the nature of the charge and the elements of the crime were explained to the defendant by their own counsel.

Answer 62

(1) involuntariness (failure to meet standards for taking a plea), (2) lack of jurisdiction, (3) ineffective assistance of counsel, or (4) failure to keep the plea bargain.

Answer 63

A plea bargain will be enforced against the prosecutor and the defendant, but not against the judge, who does not have to accept the plea.

Answer 64

A guilty plea is not involuntary merely because it was entered in response to the prosecution’s threat to charge the defendant with a more serious crime if they do not plead guilty. There is no prosecutorial vindictiveness in charging a more serious offense when defendant demands a jury trial.

Answer 65

Yes. D has a right to counsel during sentencing.

Answer 66

The death penalty must be imposed under a statutory scheme that gives the jury reasonable discretion, full information, and guidance. - No death penalty for rape if it wasn't intended to result in or didn't result in death. - Cannot execute a prisoner who is insane at the time of the execution. - No death penalty for a person who is intellectually disabled. - No death penalty for someone under 18 at the time of the offense. - No constitutional right to appeal.

Answer 67

- No right to appointed counsel. - Petitioner has the burden of proof to show unlawful detention by a preponderance of the evidence. - Petitioner must be in actual custody. - Must exhaust other appeals before getting into a habeas proceeding.

Answer 68

Prison regulations impinge on due process rights only if they impose atypical and significant hardship in relation to the ordinary incidents of prison life. - No 4A rights in prisoner's cell. - Prisoners must have reasonable access to courts.

Answer 69

Jeopardy attaches in a jury trial with the empaneling and swearing of a jury. For a bench trial, it attaches when the first witness is sworn.

Answer 70

- The first trial ends in a hung jury. - Manifest necessity to abort the first trial (EX: medical emergency). - D successfully appealed the conviction (unless ground for reversal was insufficient evidence). - D breached the plea bargain. - D could have been tried for multiple charges in a single trial but chose to have the charges tried separately.

Answer 71

Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes.

Answer 72

As a general rule, the right to be free of double jeopardy for the same offense bars a retrial for the same offense once jeopardy has attached in the first trial. - One of the exceptions permitting retrial even if jeopardy has attached is when a mistrial is granted in the first trial at the request of the defendant on any ground not constituting an acquittal on the merits.

Answer 73

The Double jeopardy clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense MORE SERIOUS than that for which he was convicted in the first trial.

Answer 74

When elements are the same--the lesser's elements being fully included in the greater's elements--either the greater or smaller defense (EX: larceny or robbery) needs to be chosen by the prosecution. - Attachment of jeopardy for greater offense bars retrial for lesser included offense. - Attachment of jeopardy for lesser included offense bars retrial for greater offense.

Answer 75

They can try the same case. - State and Fed gov separate. - Different states separate. - State and municipalities NOT separate!

Answer 76

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

Answer 77

A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them. The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution. Thus, if an individual responds to questions instead of claiming the privilege during a civil proceeding, they cannot later bar that evidence from a criminal prosecution on compelled self-incrimination grounds.

Answer 78

A prosecutor may not comment on a defendant’s silence after being arrested and receiving Miranda warnings. Neither may the prosecutor comment on a defendant’s failure to testify at trial. However, a defendant, upon timely motion, is entitled to have the judge instruct the jury that they may not draw an adverse inference from the defendant’s failure to testify. Moreover, the judge may offer this instruction sua sponte, even over the defendant’s objection.

Answer 79

When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies.

Answer 80

As soon as the accused is in sight of the identification witnesses.

Answer 81

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 (that is, the facts make it seem like the police USED THIS AS A SCHEME TO GET AROUND MIRANDA REQUIREMENTS). However, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.

Answer 82

If it appears to the judge that a party might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the party is incompetent.

Answer 83

This invokes only the 6th amendment. Courts will not infer that the suspect is invoking his 5th amendment (non-offense specific) right to counsel in such a scenario.

Answer 84

"A defendant's guilty plea neither admits the legality of the incriminating search not waives fourth amendment claims in a subsequent civil damages action challenging the legality of the incriminating search."

Answer 85

If they receive prison time, their right has been violated.