Criminal Procedure

Question 1

Exclusionary Rule

Answer 1

The exclusionary rule supresses evidence obtained in violation of the Defendant’s rights under the 4th, 5th, and 6th amendments, applicable to the states through the 14th amendment.

Question 2

Fourth Amendment

Answer 2

The fourth amendment protects against unreasoanble search and seizure by the government.
To establish a fourth amendment violation, the defendant must show that there was government action and that the defendant had a reasonable expectation of privacy.

Question 3

Reasonable expectation of privacy

Answer 3

A defendant has a reasoanble expectation of privacy to their own person and things that they have a possessory interest in. This includes a home + curtilage and places where the defendant was an overnight guest. This does not include objects held out to the public.

Question 4

Seizure of a person

Answer 4

occurs when an officer pysically touches a subject or when a reasonable person does not feel free to decline the officer’s requests and end the encounter. a persuit is not a seizure until there is a use of force

Question 5

Terry stop

Answer 5

An offer must have reasonable suspicion to investigate, supported by articulable facts
Detention must be bried and only long enough to verify or dispel suspicions
The officer may frisk for weapons if the officer reasonably believes D is armed

Question 6

Arrest

Answer 6

The officer must have probable cause, which means knowledge of trustworthy facts and cricumstances
Public places: if crime committed in officer’s presence, no warrant, or no warrant if felony
Defendant’s home: requires a warrant
Someone else’s home: warrant, consent, exigent circumstances

Question 7

Police check point

Answer 7

generally valid as long as the stop is conducted in a nondiscriminatory manner and the purpose has an articulable reason beyond general crime prevention. DUI checkpoints are legal, but checkpoints generally looking for contraband are not unless at the border.

Question 8

Traffic stop

Answer 8

officer must have reasoanble suspicion that a law has been violated.
valid but pretextual stop is okay
driver and occupants can be ordered out and risked if officer has reasonable suspcion they are carrying a weapon
limited search of passenger compartments for weapons is allowed

Question 9

Search

Answer 9

A search occurs when the government violates a reasonable expectation of privacy, must be pursuant to a warrant or an exception

Question 10

Technological device

Answer 10

attatching a tracking device is a search
physically intruding onto property to install a device is a search
use of sense-enhancing devices not used by the **general public **is a search
cell-site information from a carrier requires a warrant

Question 11

Drug sniffing dog

Answer 11

use is a search if dog is physically on D’s property

Question 12

Warrant search

Answer 12

valid warrant requires probable cause, detatched and neutral magistrate, and** describes with particularity** the place to be searched and items to be seized
knock and announce, but failure won’t result in exclusion
if invalid warrant, may still be admissible if police officers relied in good faith

Question 13

Warrant Exceptions

Answer 13

[ESCAPES]
Exigent circumstances
search incident to lawful arrest
consent
automobile exception
plain view
evidence from administrative search
stop and frisk

Question 14

Exigent circumstances

Answer 14

hot pursuit, emergency situations, justify based on the totality of the circumstances

Question 15

Search incident to lawful arrest

Answer 15

must be a** lawful arrest** based on probable cause
must be timely and without delay
includes immediate area
generally no search of cell phones unless exigent circumstances
vehicle search only okayif D is **unsecured **and within reach of the passenger compartment or reasonable belief that vehicle has evidence of the crime
after arrest, can do routine inventory search of car
protective sweep of home permitted

Question 16

Automobile exception

Answer 16

Police can search any part of automobile if they have **probable cause ** it contains evidence or contraband

Question 17

Consent

Answer 17

voluntary and intelligent consent based on circumstances
co-owner can consent if D is not present

Question 18

Plain view

Answer 18

the officer must be lawfully on the premises
the incriminating character of the item is immediately apparent

Question 19

Stop and Frisk

Answer 19

detention based on reasoanble suspicion of a crime
can pat down outer surfaces for weapons if reasonably suspect
if officer feels an object which is immediately obvious as contraband, can seize it

Question 20

Fruit of the poisonous tree

Answer 20

suppresses evidence that was derivative from the primary illegal search
exceptions: inevitable discovery, independent source, attenuation, good faith, isolated police negligence

Question 21

Fifth Amendment

Answer 21

The fifth amendment protects a person against compelled self incrimination. Statements made during custodial interrogation are indamissible unless the defendant was given their Miranda rights.

Question 22

Custody

Answer 22

a person is in custody if they were arrested or if a reasonable person would not have believed they were free to leave. A traffic stop is not custody

Question 23

Interrogation

Answer 23

a person is subject to interrogation if the police engage in any conduct that is liekly to elicit a response

Question 24

Waiver of Miranda

Answer 24

a suspect can only knowingly and voluntarily waive miranda rights after receiving the warning

Question 25

Invoking Miranda rights

Answer 25

Suspect must specifically and unambiguously invoke the right to silence and/or counsel
if right to counsel invoked, all questioning must stop and wait for counsel
if right to silence invoke, all questioning must stop, but may attempt to question again if time has passed and new warnings given

Question 26

Spontaneous statements

Answer 26

not covered by Miranda, even if suspect invoked

Question 27

Undercover police

Answer 27

Undercover officers do not have to Mirandize a suspect who is unaware the interrogator is a police officer

Question 28

Statements in violation of miranda

Answer 28

Are not allowed for any substantive purpose but may be allowed for impeachment if the defendant testifies
physical evidence in reliance of statement is not excluded

Question 29

Involuntary statements

Answer 29

statements obtained through coercion violate due process
if admitted, subject to harmless error standard

Question 30

Sixth Amendment

Answer 30

The 6th amendment right to counsel automatically applies at all critical stages of prosecution after indictment or formal charge, and ends at sentencing.

Question 31

Offense Specific

Answer 31

The 6th amendment right to counsel is offense specific and does not bar police from quesitoning the defendant about unrelated offenses

Question 32

Critical stages

Answer 32

hearings, post indictment interrogations, post indictment line ups, trial, and questioning by an undercover cop.

Question 33

Waiver of 6th amendmnet

Answer 33

waiver must be knowing and intelligent, and has right to self representation

Question 34

Effective assistance of counsel

Answer 34

the defendant must show deficient performance causing prejudice

Question 35

6th Amendment right to confront witnesses

Answer 35

Criminal defendant has the right to confront adverse witnesses in order to cross examine
a non-testifying co-defendant;s statement or confession is inadmissible

Question 36

6th amendment righ tto jury trial

Answer 36

defendant has the right to a jury trial for serious offenses for which the punishment is incarceration for more than six months

Question 37

Right to a speedy trial

Answer 37

defendant is guaranteed the right to a speedy trial. the time starts at the time of arrest or formal charge.
Balancing test: length of delay, reason for delay, defendant’s assertion of the right, and prejudice to the defendant.
remedy: charges dismissed without prejudice

Question 38

Identification

Answer 38

lineup or photoarray vioaltes due process if it was impermissibly suggestive and there was subsantial likelihood of misidentification.
A subsequent in court identification is allowable if it is reliable by clear and convincing evidence

Question 39

Probable cause hearing

Answer 39

must occur within 48 hours to determine whether D can be held

Question 40

Bail

Answer 40

no constiuttional right, but if denied must not violate Due Process

Question 41

Guilty Pleas

Answer 41

must be knowing and voluntary
right to counsel exists, can withdraw plea if ineffective assistance
judge must personally apprise D in court of D’s rights and consequences to the plea

Question 42

Double Jeopardy

Answer 42

a defendant is protected against a second criminal prosecution for the same offense and protected from multiple punishments for same offense, does not apply to civil actions
attaches when jury is empaneled or sworn in, or after first witness is sworn in
to be separate crimes, each crime must have an element the other does not
separate sovereign: can be tried by two states, or the fed and a state
can retry after mistrial or conviction and reversal