Criminal Procedure

Question 1

4th Amend Right

Answer 1

• Under the 4th Amend, a person is granted protection from unlawful gov searches and seizures.

Question 2

4th Amend Right

Standing

Answer 2

• Standing is required to challenge a search or seizure. The challenger must have a reasonable expectation of privacy (REP) regarding the item or place searched.
• Individuals have a REP in that of which they own or possess (applies to overnight guest spaces).

REP: A person’s subjective expectation of privacy that society would find objectively reasonable.

Question 3

4th Amend

Warrant Requirement

Answer 3

A warrant is required for all searches and seizures unless an exception applies.

Question 4

4th Amend

Lawful Arrests

Answer 4

• For an arrest to be proper, the police officer must have probable cause, which is a reasonable belief that the person committed a crime.
• An officer does not need firsthand knowledge (it may be based on informant’s info).
• An arrest in someone’s home requires a warrant.

Question 5

4th Amend

Stop and Inquire & Stop and Frisk

Answer 5

• A police officer may stop and inquire if the police officer:
  1. has reasonable articulable suspicion,
  2. that criminal activity is afoot.
• A police officer may only stop and frisk a person if the police officer:
  1. has reasonable articulable suspicion,
  2. that criminal activity is afoot, and
  3. that the person has a weapon.
• Under the plain feel doctrine, a police officer may only seize items he reasonably believes is contraband or a weapon during the frisk.

Question 6

Govenment Use of Sensory Enhancement Technology

Answer 6

• The use of sensory enhancement technology is deemed a search if:
  1. the technology is not in general public use, and
  2. the police obtain info about activities inside the home.
• The use of drug-sniffing dogs is constitutional when used around a car, but is not constitutional when used around the home.

Question 7

Exception to Warranty Requirement

Plain View

Answer 7

The police may seize items without a warrant if:
1. they are observed in plain view,
2. from a place lawfully permitted to be, and
3. probable cause exists to believe that the items are evidence of a crime or contraband from its appearance.

Question 8

Exception to Warranty Requirement

Exigent Circumstances

Answer 8

Exigent circumstances allow a warrantless search if:
(a) the evidence is evanescent (it will dissipate or disappear),
(b) it’s necessary to prevent the imminent destruction of evidence,
(c) the police are in hot pursuit of a felon and the evidence is in plain view, or
(d) it’s necessary to protect a person from imminemt injury.

Question 9

Exception to Warranty Requirement

Search Incident to Arrest

Answer 9

• A police officer who makes a lawful arrest may conduct a contemporaneous warrantless search of:
  1. the suspect’s person, and
  2. the area within the suspect’s immediate control (“wing span”).
• If the arrest occurs in a home, the police may also search closets and other immediately adjoining spaces from where an attack may be lauched.
• If the suspect is arrested in an automobile, the police may also search the entire interior or passenger compartment if:
  (a) the officer has reason to believe that evidence relevant to the offence arrested for might be discovered, or
  (b) the arrested person is unsecured.

Question 10

Exception to Warranty Requirement

Consent

Answer 10

Consent is an exception to the warrant requirement if:
1. it is given voluntarily, and
2. a person has an authority to consent.

Question 11

Exception to Warrant Requirement

Administrative Searches

Answer 11

Administrative searches that serve a legitimate regulatory purpose are allowed without a warrant.
e.g. Searches of airline passengers before boarding, drug tests of railroad employees.

Question 12

Exception to Warrant Requirement

Inventory Searches

Answer 12

Inventory seraches allow a warrantless search when a person is incarcerated or for an impounded vehicle.

Question 13

Exception to Warrant Requirement

Checkpoints

Answer 13

The police may stop vehicles at checkpoints if the checkpoint:
1. is conducted in a nondiscriminatory manner,
2. for a purpose other than investigation of criminal activity, and
3. is reasonable in scope.

Question 14

Exception to Warrant Requirement

Automobile Exception

Answer 14

• Automobile exception allows a warrantless search of a car if the police have probable cause that contraband or evidence of a crime will be found in the vehicle.
• The police can search the entire vehicle and any luggage etc. that may reasonably contain the items for which there is probable cause.

Question 15

5th Amend Privilege Against Self-Incrimination & Miranda Rights

Answer 15

• Under the 5th Amend Privilege Against Self-Incrimination, a person has a right to not incriminate oneself and must be given Miranda warnings during a costodial interogation.
• A person is in custody when they reasonably believe they are not free to leave.
• A person is subject to interogation when the polic knew or should have known that they were likely to elicit an incriminating response.

Question 16

5th Amend

Invoking Miranda Rights

Answer 16

• When invoking a Miranda right, it must be clear and unambiguous.
• Once the right to remain silent is invoked, the police must cease questioning and may not resume.
• Once the right to counsel is invoked, the police must cease questioning until the counsel has been provided, unless:
  (a) the suspect provides a waiver, or
  (b) at least 14 days have passed since the suspect was released from custody.

Question 17

Pre-Trial Identifications & the 5th Amend

Answer 17

Pre-trial identifications (lineups, photo identifications), blood tests, fingerprints and voice identification fall outside 5th Amend protection. As such, a suspect in custody cannot refuse participation in a lineup.

Question 18

6th Amend Right to Counsel

Answer 18

Under the 6th Amend, a person has a right to counsel at all critical stages of a criminal proceeding after formal charge, including a post-charge lineup.

Question 19

Right to Self-Representation

Answer 19

A D has the right to represent himself at trial, if he:
1. is competent to stand trial, and
2. waives the right to counsel knowingly and intelligently.

Question 20

14th Amend Due Process

Answer 20

• The 14th
  Amend Due Process Clause is violated when a line-up or identification is:
  1. unnecessary suggestive
  2. resulting in a substantial likelihood of misidentification.
• If there is a violation, the identification is inadmissible at trial.

Question 21

Exclusionary Rule & Fruit of the Poisonous Tree Doctrine

Answer 21

• Under the Exclusionary Rule, evidence obtained in violation of a D’s 4th, 5th, or 6th Amend right is inadmissible at trial.
• Additionally, under the Fruit of the Poisonous Tree Doctrine, evidence that is found as a result of the original wrongfully obtained evidence is inadmissible.
• However, the exclusionary rule does not apply if:
  (a) the evidence obtained could have been obtained from an independent source separate from the illegal source,
  (b) discovery of evidence was inevitable regardless of the illegality,
  (c) D’s free will is restored through passage of time, or
  (d) the police relied in good faith on a defective warrant.

Question 22

Exclusionary Rule

Liminations on Miranda Violations

Answer 22

• Failure to give Miranda warnings does not require suppression of the physical evidence found because of D’s statements.
• Subsequent statements made after Miranda warnings are admissible.
• Statements in violation of Miranda may be used to impeach a D on cross-examination.
• Coerced statements made by the suspect are never admissible for any purpose.