Criminal Procedure

Question 1

Define

Seizure

Answer 1

A seizure of a person occurs anytime a person would feel that he is not free to leave or terminate the encounter.

Question 2

Discuss

Arrest

Answer 2

Police need probable cause for warrantless arrest. Need a warrant if arrest is at defendant’s home.

Question 3

Fouth Amendment

Answer 3

• applies to searches or seizures
• conducted by government agents
• in areas where the complaining individual has a reasonable expectation of privacy.

An agent needs a warrant to conduct search or seizure unless an exception is met.

To invoke a fourth amendment claim, the individual must have standing - the individual has a reasonable expectation of privacy in the thing seized or searched.

Question 4

Fourth Amendment Exceptions

Answer 4

1. Exigent circumstances: hot pursuit / fleeting evidence / emergency aid: can pursue into dwelling
2. Incident to Arrest: contemporaneous search of wingspan; in passenger comparment if
3. Terry Stops / Frisks: “reasonable, articulable suspicion”
4. Consent: limited to where you have consent to search
5. Plain view: incriminating character is immediately apparent and lawful right to access
6. Automobile Exception: w/ person: reasonable suspicion; w/o person: probable cause for finding contraband, can look where contraband might be found
7. ** Inventory searches**: inevitable discovery
8. Special needs

The 4th Amendment applies to searches and seizures conducted by government agents in areas where individual has a reasonable expectation of privacy. Agents need a warrant to conduct a search or seizure unless an exception applies.

Question 5

Plain View Exception

Answer 5

Exception to the Fourth Amendment protections against search and seizure by a government agent in an area where the individual has an expectation of privacy.

The Plain View Exception permits seizure of evidence without a warrant if that evidence is the result of a lawful search and the evidence’s incriminating character is immediately apparent to the agent.

Question 6

Terry Stop & Frisk

Answer 6

Terry Stop & Frisk is an exception to the Fourth Amendment protection against search and seizure by government agents in areas where the individual searched has a reasonable expecation of privacy.

Under the Stop & Frisk exception, a police officer may stop an individual if he has reasonable, articulable suspicion of the individual’s recent participation in criminal activity.

Question 7

Sixth Amendment

Answer 7

The Sixth Amendment, as applied to states through the Fourteenth Amendment, provides the accused the right to the Assistance of Counsel for their defense. The right attaches when the accused has been formally charged. Once attached, government agents cannot deliberately elicit incriminating statements about the defense. However, this protection is offense specific - the protections only extend to the offense against which the accused has been formally charged.

Question 8

Fifth Amendment

Answer 8

The Fifth Amendment, as applicable to the states through the Fourthteen Amendment, requires law enforcement officers to read Miranda rights when the suspect is subject to custodial interrogation.

Custody: restraint on freedom

Interrogation: reasonably likely to induce an incriminating response

Invocate Miranda rights: EXPLICIT, UNAMBIGUOUS REQUEST. Otherwise, waived.