Criminal Procedure

Question 1

Probable Cause for an Arrest

Answer 1

trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is planning to commit a crime

Question 2

Arrests

Answer 2

An arrest occurs when police take an individual into custody for purposes of criminal prosecution or interrogation

Probable cause is always required for any valid arrest.

warrants are rarely required for arrests.

Question 3

Warrants for Arrest

Answer 3

Police generally do not need a warrant before arresting a person in a public place

EXCEPT:
Polce must have an arrest warrant to arrest an individual in their home and may only enter the home if they have reason to believe the suspect is in the home.

Note: Search Warrant is required to execute an arrest of suspect in a third party’s home.

Note: arrest warrant is not required for an emergency arrest occurring in the arrestee’s home.

Question 4

Detention

Answer 4

a governmental seizure of a person that is less than a full custodial arrest

i.e.
(1) Stop & Frisk (Terry Stop) - requires reasonable suspicion

(2) Automobile Stop - reasonable suspicion

(3) Stationhouse detention - probable cause required to compel a person to enter

(4) Detention to obtain search warrant - requires probable cause to believe suspect has contraband in the home and a reasonable time is required to permit entry and potential destruction of evidence.

(5) Detention of occupants of a premises - during exercise of a valid search warrant

Question 5

Automobile Stops

Answer 5

Stopping or pulling over a vehicle requires a reasonable suspicion that a law has been violated.

Pretextual stops (i.e. ulterior motive) are OK if police have probable cause of a traffic violation.

Question 6

Automobile Stops - Accompanying Searches

Answer 6

Passengers and the passenger compartment (but not the trunk) can be searched during an automobile stop if the officer reasonably believes weapons may be present.

Officer can order passengers out of the vehicle.

Entire car may be search if probable cause arises during the automobile search OR incident to a lawful arrest.

Question 7

Police checkpoints

Answer 7

must related to a vehicle-specific purpose

(1) Cars must be stopped using a neutral, articulable standard; and

(2) Serve purposes related to automobiles and their mobility

i.e. DUI checks relate to road safety. Drug checkpoints are not.

Question 8

Validity of Govt. Searches and Seizures

Answer 8

must be reasonable under the 4th amendment, which requires a valid search warrant unless one of six exceptions applies

Question 9

Exceptions to the Search Warrant Requirement

Answer 9

(1) Search Incident to arrest
(2) Plain view search
(3) Automobile search
(4) Valid consent to search
(5) Exigent circumstances
(6) Stop & Frisk

Question 10

Determining the reasonableness of a search/seizure

Answer 10

(1) Is there govt. conduct constituting a search or seizure?

(2) Does D have standing? (i.e. a reasonable expectation of privacy in the thing or place to be searched).

(3) Is there a valid search warrant?

(4) If there is no valid search warrant, was there a valid exception to the search warrant requirement?

Question 11

Reasonable Expectation of Privacy

Answer 11

4th only applies if there is a reasonable expectation of privacy (REOP) regarding the thing or place searched and/or item seized.

Determined by the totality of the circumstances.

No REOP in inherently public things (i.e. handwriting, voice, location, odors, public records, things viewable from a public space, bank account records, areas outside the curtilage of the house).

Automatic standing (i.e. REOP always exists) if D either:
(1) owns, has a right to possess, or lives in the premises to be searched, or
(2) is an overnight quest of the premises to be searched.

Question 12

Requirements for a Valid Search Warrant

Answer 12

(1) Based on probable cause - usually, a police affidavit containing facts and information from anonymous sources that demonstrate the search will produce evidence.

(2) Precise on its face - the warrant must describe with reasonable precision the place to be searched and items to be seized.

(3) Issued by a neutral and detached magistrate.

Note re: Anonymous Sources - if (1) there was a false statement, (2) affiant intentionally or reckless included the false statement, and (3) false statement was material to finding probable cause then the warrant is invalid.

Question 13

Good faith exception to an invalid search warrant

Answer 13

The exclusionary rule does not apply if the police act in good faith on an invalid search warrant.

Police however cannot rely on a defective warrant obtained in good faith if:

(1) Affidavit completely lacks probable cause (i.e. no reasonable officer would have relied)
(2) Warrant is defective on its face
(3) Police/Official lied or misled the magistrate. or,
(4) Magistrate has “wholly abandoned her judicial role”

Question 14

Execution of Search Warrants

Answer 14

(1) Timing - without unreasonable delay once issued

(2) Knock and Announce Required - knock and announce their purpose and wait a reasonable time for admittance before entering of own accord

Note: UNLESS officers have reasonable suspicion that announcing their presence would be dangerous, futile, or would inhibit investigation

(3) Scope of Search - limited to what is reasonably necessary to discover items described.

I.e. Police can detain people on premises but cannot search unless they are specifically named or a valid exception exists.

Question 15

Search Incident to a Lawful Arrest

Answer 15

Police may search a lawfully arrested person and his immediate surrounding area without a warrant if:

(1) The arrest is lawful
(2) Search is contemporaneous with the arrest
(3) Search is limited to area within suspect’s reach or movement

Protective Sweeps allowed if reasonable belief accomplices may be present

Inventory Searches of arrestee’s belongings or seized property is allowed when jailing arrested suspects.

Question 16

Automobile Searches Incident to Arrest

Answer 16

After arresting an occupant of a vehicle offers may search the interior including glove box if at the time of the search

(1) Arrestee is unsecured and may access the interior, or
(2) Officers reasonably believe evidence of the crime for which the arrest was made may be found in the vehicle.

Does not include the truck without probable cause or consent!

A warrantless breathalyzer is valid following a lawful arrest based on probable cause of drunk driving.

Contents of a cellphone may NOT be searched.

Question 17

Plain View Searches

Answer 17

Police may search from any place where they are legitimately present when viewing without a warrant if:

(1) Police are legitimately on the premises from which they viewed evidence to be seized;

(2) Criminal activity or contraband is immediately apparent; and

(3) Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime.

Scope: anything viewable from land or public property even if only viewable through binoculars (includes smell)

Cannot use technology not generally available to the public to view evidence (i.e. infrared scanners).

Question 18

Consent to Search

Answer 18

Police may search for anything with valid consent.

Requirements:

(1) Voluntarily and intelligently made
(2) Person giving consent has reasonably apparent authority, to consent

Scope: can be limited by the consenting party

Question 19

Third-Party Consent to a Search

Answer 19

Allowed if there is authority to consent

(1) Where multiple people have property rights any single one can consent to search of any area where they have authority to consent

(2) Resident trumps non-resident

(3) Scope of consent is dictated by the person present with highest authority to consent

(4) Refusal trumps consent (if equal rights)

Question 20

Automobile Search Exception

Answer 20

If probable cause exists, police may search the ENTIRE vehicle and containers inside that.

Requirements:

(1) Police must have probable cause to search the vehicle; and
(2) Probable cause must arise before the search begins

Scope: Entire vehicle and all containers that might contain evidence sought after including passengers and their belongings.

Question 21

Stop & Frisk (TERRY STOPS)

Answer 21

Police may detain a person for an investigative purpose if they have reasonable suspicion of criminal activity

Scope:

Length - no longer than necessary to verify suspicion
Frisk - must have reasonable suspicion of the person being armed/dangerous

Frisk is “plain feel” meaning police cannot manipulate the item to develop a reasonable belief of a weapon

A stop is only a brief detention so it’s less than an arrest but can lead to an arrest if evidence causes probable cause.

Question 22

Exigent Circumstances

Answer 22

If exigent circumstances exist, police can search or seize without a warrant.

Hot Pursuit, Evanescent Evidence, and emergencies are forms of exigent circumstances.

Question 23

Hot Pursuit

Answer 23

During the active pursuit of a fleeing felon police can search for anything relating to the pursuit or for their own protection.

Scope - as broad as reasonably necessary

Police can enter into a private dwelling after attempting arrest in a public space if probable cause

Question 24

Evanescent Evidence

Answer 24

Police can search or seize evidence that could disappear if police were required to take the time to secure a warrant. Reasonableness is judged by the totality of the circumstances.

Question 25

Emergency

Answer 25

emergencies that threaten health or safety if not immediately acted upon. (viewed objectively) i.e. bomb threats

Question 26

Administrative Searches

Answer 26

govt. agencies may conduct routine searches of highly regulated businesses or industries. i.e. building code inspection

commercial buildings require less particularity

Question 27

Public School Searches

Answer 27

school officials must have reasonable grounds to believe the search is necessary

reasonable if:
(1) search offers a moderate chance of finding evidence of wrongdoing
(2) procedure for searching is reasonably related to the objectives of the season; and
(3) it is not excessively intrusive

i.e. drug tests.

Question 28

Border and Immigration Searches

Answer 28

Officials may conduct routine seraches without warrants/prob cx/reasonable suspicion

Detentions require reasonable suspicion of smuggling

Internation Mail can be opened and inspected based on reasonable suspicion

Immigration raids of businesses allowed

Question 29

Wiretapping

Answer 29

Electronic surveillance that violates a reasonable expectation of privacy constitutes a search and requires a warrant

Requirements for Warrant:
(1) Prob Cx that specific rime is being or has been committed
(2) Name suspects subject to
(3) Describe w/ Particularity the subject of conversations surveilled
(4) Limited to short periods of time
(5) Terminate when desired information is obtained

All speakers assume risk that counterparty is wiretapped/wearing a wire.

No reasonable expectation of privacy is do not work to make conversation private.

Question 30

Exclusionary Rule

Answer 30

Evidence obtained in violation of D’s constitutional rights is inadmissible.

Govt. must show harmless beyond a reasonable doubt for the illegally obtained evidence to be admitted.

Question 31

Fruit of the Poisonous Tree doctrine

Answer 31

Evidence derived or obtained from illegal govt conduct is excludable

Exception: govt. can “break the chain” between illegal govt conduct and the seized evidence such as:
(1) Independent Source for the information independent from original illegality

(2) Inevitable discovery even without illegal conduct

(3) Attenuation - evidence challenged is too remove and attenuated from the unlawful serach/seizure. (i.e. intervening acts of free will by D)

Question 32

Limitations on the Exclusionary Rule

Answer 32

Does not apply to:

(1) Grand Jury proceedings, civil proceedings, parole hearings, or administrative cases
(2) Violations of the knock and announce rule in executing search warrants
(3) Evidence seized as a result of Miranda violations

Miranda violations may be used to impeach D’s own testimony at trial.

If Govt relies in good faith on a defective search warrant a judicial opinion or statute that was latter declared invalid they can bypass exclusionary rule.

Question 33

5th Amendment Privilege against Compelled Self-Incrimination

Answer 33

Any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself.

ONLY available for compelled testimonial or communicative evidence:

(1) Testimonial = verbal or otherwise communicative evidence (i.e. a lineup is NOT testimonial)

(2) Compelled = elicited or induced (i.e. lie detector tests or custodial interrogations).

Question 34

Right against Self-Incrimination Exceptions

Answer 34

The privilege does not apply IF:

(1) Govt. provides a grant of immunity from prosecution for the self-incriminating testimony

(2) Incrimination is not possible (i.e. Statute of Limitations has run)

(3) D waives the privilege.

Question 35

Miranda Rights

Answer 35

Those in custody must be informed of their Miranda rights prior to interrogation; otherwise subsequent statements are inadmissible.

Miranda only applies when the accused is (1) in custody and (2) being interrogated.

Custody means the accused is not free to leave.

Interrogation means Police have made statements aimed at the accused that are likely to elicit an incriminating response. (Allowed if its related to public safety)

Question 36

Miranda Warnings

Answer 36

Police must inform the accused that he has:

(1) A right to remain silence;
(2) Anything said can be used against him;
(3) He has a right to the presence of an attorney; and
(4) One will be appointed if he cannot afford one

Does not have to be exact - substantial compliance.

Question 37

Invoking Miranda

Answer 37

Accused may terminate an interrogation at any time by invoking his right to remain silent or requesting an attorney.

Silence = cease all questions, only accused may re-intiate. Police must wait a significant period and D must be re-warned.

Counsel = must be done unambiguously and police cannot re-initiate only accused.

Question 38

Waiving Miranda

Answer 38

A valid waiver of Miranda must be (1) knowing and (2) voluntary. The burden is on the prosecution to prove this by a preponderance of the evidence.

Voluntariness of confessions is based on the totality of the circumstances (age/condition/education/manner of interrogation)

Question 39

Double Jeopardy

Answer 39

A D cannot be retried for the same offense once jeopardy has attached. (i.e. Jury impanneled/sworn in; First witness for Bench Trial; Court accepts a pleas agreement).

Same offense - offenses are different if conviction of A requires proof of an element not included in B,C,D, etc.

Jeopardy attaches to lesser offenses as well.

Example: Offense 1 requires A,B,C. Offense 2 requires A,B = Double Jeopardy APPLIES.

Question 40

Double Jeopardy exceptions

Answer 40

(1) New evidence for a greater offense becomes available

(2) D can be tried for battery and subsequently tried for homicide if victim later dies from the battery.

(3) Hung Jury

(4) Mistrial due to manifest necessity (i.e. D too ill to continue

(5) Retrial after a successful appeal by D (unless insufficient evidence)

(6) D breaches a plea bargain agreement

(7) Separate sovereigns (different states or state/federal)

Question 41

6th Amendment Right to Counsel

Answer 41

Once attached, police may not elicit incriminating statements outside the presence of D’s counsel.

Attaches automatically once charges have been filed.

The right is offense-specific (unlike 5th).

The counsel must be EFFECTIVE. To show on appeal D must show a reasonable probability that his trial’s outcome would have been different but for counsel.

Question 42

Pre-Trial Lineups/Showups

Answer 42

Right to counsel at any post-charge, in-person lineup/showup. (Does not apply to photographic lineups/fingerprintings).

If it’s unnecessarily suggestive; and there is a substantial likelihood of misidentification due process rights are violated (totality of circumstances and high bar).

If violated D may move to suppress.

Question 43

Grand Jury Indictments

Answer 43

Required in fed. court under the 5th Amendment and are used to determine whether there is sufficient probable cause to bring charges against a suspect.

Elements:
(1) Secret
(2) No right to confront witnesses/attend proceeding
(3) Witnesses not entitled to Miranda warnings
(4) Witnesses may not challenge a subpoena
(5) Witnesses do not have a right to counsel
(6) Witnesses MAY refuse to testify for fear of self-incrimination
(7) Exclusionary Rule does not apply (i.e. can be based on evidence that would be inadmissible at trial later on)

Question 44

Pre-trial Hearing

Answer 44

May be required to determine probable cause to detain IF:

(1) D is incarcerated or released on ball
(2) There has been no determination of probable cause

Within 48 hours of detention.

Question 45

Bail

Answer 45

Cannot be higher than necessary to ensure D will appear at trial.

Decision to refuse bail is immediately appealable; arbitrary denial is a due process violation.

Govt must show: (1) D possesses flight risk, or (2) poses a danger to the community.

Question 46

6th Amendment Right to a Speedy Trial

Answer 46

D is protected from unreasonable delay between the time charges are filed and trial begins.

Attaches once arrested/charged.

Violations are determined based on the totality of the circumstances.

The remedy is to dismiss with prejudice.

Question 47

Plea Bargains

Answer 47

Judge must:
(1) Determine plea is voluntary and intelligently made; and
(2) Ensure D understands:

(a) nature of the charge and its critical elements
(b) maximum authorized penalty and any mandatory sentence
(c) That D has a right to plead not guilty
(d) That D is waiving his 6th amendment right to a jury trial

If the plea looks involuntary, or that the court lacked jurisdiction, D had ineffective counsel or prosecutor failed to honor the plea then Apelleate courts may disturb the plea.

Question 48

Disclosure of Exculpatory Information

Answer 48

Govt. has a duty to disclose material exculpatory evidence to D. Failure to do so violates due process and is grounds for reversing conviction.

To establish a violation D must show:
(1) Evidence impeached or is exculpatory
(2) Evidence is favorable to D; AND
(3) Prejudice has resulted (reasonable probability the result would have been different)

Applies to evidence relevant to prosecutors’ case in chief.

Question 49

Right to Jury Trial / Requirements

Answer 49

Right applies to all “serious offenses” which is defined as any charge with imprisonment more than 6 months.

Jury size and selection requirements:
(1) Jury must contain at least 6 jurors
(2) A unanimous verdict is required
(3) The jury pool (“venire”) [note: NOT JURY] must be representative cross-section of the community
(4) The jury must be impartial and D may question potential jurors on possible prejudices if relevant to the case
(5) Parties may exercise preemptory challenges for any reason except race/gender.

Note: Judges cannot direct a verdict of guilt only of acquittal.

Question 50

6th Amendment Right to Confront Witnesses

Answer 50

D has a right to have adverse witnesses testify in person and subject to cross-examination.

In-person testimony is not required if:

(1) Exclusion is necessary for public policy; and
(2) Reliability of the testimony is otherwise assured

Question 51

Co-Defendant Confessions

Answer 51

A Co-D’s confession implicating D is inadmissible against D at a joint jury trial (OK at Bench).

Exceptions: co-D confessions admissible IF:
(1) Confessing Co-D testifies subject to cross ?
(2) Ds having separate trials
(3) Confessions is redacted so that all portions referring to the co-D are eliminated, or
(4) Co-D’s confession is used to rebut D’s claim that his confession was obtained coercively.

Question 52

Hearsay

Answer 52

Prior testimonial statements of unavailable witnesses are only admissible if D had the opportunity to cross-examine the declarant when the statement was made.

Question 53

8th Amendment & Death Penalty

Answer 53

8th prohibits cruel and unusual punishment which bars punishment that is grossly disproportionate to the offense. i.e. life sentence for a minor vandalism conviction.

Death Penalty may only be used if the victim dies as a result of D’s crime.

Requirements:
(1) Statute allowing the death penalty must not be unconstitutionally vague
(2) Jury must be allowed to consider mitigating circumstances (i.e. abusive childhood, mental impairment, etc.)
(3) There must be at least one “aggravating circumstance” (i.e. prior convictions) supporting the sentence.

Question 54

Death Penalty Limitations

Answer 54

Cannot be imposed if either:
(1) D was under 18 when the crime was committed
(2) D is mentally disabled
(3) D is insane at the time of the execution
(4) The conviction was for felony murder; and either:

(a) D was not a major participant or
(b) D did not act with depraved indifference to human life

Question 55

14th Amendment Due Process and the Burden of Proof

Answer 55

Guilt must be proven beyond a reasonable doubt in all criminal cases (for every element).

Burden is on the prosecution and state laws attempting to shift burden are unconstitutional.

D has burden of proving affirmative defense raised (state law can determine burden to be satisfied)

Conviction is valid unless no rational judge or jury viewing evidence in light most favorable to the P would convict D.

Question 56

Jury Instructions and Mandatory Presumptions

Answer 56

The judge cannot give mandatory jury instructions on elements of a charged crime.

Requiring jury to make a presumption regarding an element of the charged crime violates due process.

Example: in a murder trial where body was never found, judge cannot instruct jury to presume that a missing person is presumed dead.