Criminal Procedure

Question 1

Four major questions in search and seizure?

Answer 1

Is it governed by the Fourth Amendment?

Did a search or seizure conducted with a warrant satisfy the Fourth Amendment?

Did a search or seizure conducted without a warrant satisfy the Fourth Amendment?

Is the search and seizure that is violative of the Fourth Amendment still admissible in court?

Question 2

Four major questions to determine whether or not the Fourth Amendment applies?

Answer 2

Was the search or seizure executed by a government agent?

Was the S/S of an area or item protected by the Fourth Amendment?

Did the agent either physically intrude on a protected area or item to obtain info, or violate an individual’s reasonable expectation of privacy in the area/item?

Did the individual subjected to S/S have “standing” to challenge the government agent’s conduct?

Question 3

Who qualifies as a government agent?

Answer 3

Publicly paid police, on or off duty

Private citizens, if they are acting at the direction of the police

Private security guards, only if they are deputized with the power to arrest

Public school administrators (usually acting on info received outside of school or from students)

Question 4

Fourth Amendment protects individuals from unreasonable S/S of their…?

Answer 4

Persons (bodies)

Houses (extends to curtilage, areas adjacent to the home to which home life extends)

Papers (personal correspondence)

Effects (personal belongings)

Question 5

What are unprotected items under the Fourth Amendment?

Answer 5

Public Observation Generally Obliterates Fourth Amendment Protection

• Physical characteristics
• Odors
• Garbage
• Open fields (anything that can be seen in or across the fields)
• Financial records (held by a bank)
• Airspace (anything seen below when flying in public airspace)
• Pin registers (Devices that list telephone numbers someone dials)

Question 6

How can government conduct implicate the Fourth Amendment?

Answer 6

Two ways
-Trespass based test: Agent physically intruded on a constitutionally protected area in order to obtain information (installing GPS tracking in someone’s car)

• Privacy based test: Agent’s S/S of a constitutionally protected area violated an individual’s reasonable expectation of privacy
• ->Must show: Actual or subjective expectation of privacy, AND that the expectation was one that was reasonable by society’s standards
• ->Police search is presumptively unreasonable when it uses a device that is not in public use to explore details of the home that officers couldn’t know about without physical intrusion (thermal imaging device)

Question 7

When does an individual have standing to challenge a government S/S?

Answer 7

ALWAYS:

• If they own the premises attached
• If they reside at the premises
• If they are overnight guests at the premises

NO:

• If they are merely using someone’s residence for business purposes
• If they are passengers in a car

MAYBE:
-If they own the property seized, but only if they have a reasonable expectation of privacy in the AREA from where property was seized (ex: can’t hide drugs in girlfriend’s purse)

Question 8

Four major questions to determine whether or not a S/S pursuant to a warrant satisfies Fourth Amendment requirements:

Answer 8

Was the warrant issued by a neutral and detached magistrate?

Is the warrant supported by probable cause and particularity?

If not, did police officers rely on a defective warrant in good faith (only on MBE, no good faith doctrine in GA)?

Was the warrant properly executed by the police?

Question 9

Standard for neutral and detached magistrate:

Answer 9

A judicial officer ceases to be sufficiently “neutral and detached” for Fourth Amendment purposes when her conduct demonstrates bias in favor of the prosecution

Question 10

Is the warrant supported by probable cause and particularity? Two standards:

Answer 10

Probable cause requires proof of a fair probability that contraband or evidence of crime will be found in the area searched

• Hearsay is admissible for this purposes
• Informant’s tips may be relied upon, even if anonymous. Sufficiency of the tip rests on corroboration of enough of the info to allow the magistrate to make a “common sense practicable” determination that probable cause exists on a totality of the circumstances

Particularity: To satisfy, must specify–

• The place to be searched
• Items to be seized

Question 11

Does an officer’s good faith (not recognized in GA) save a defective search warrant? What’s the standard

Answer 11

An officer’s good faith overcomes constitutional defects but there are four exceptions:

• Affidavit supporting the warrant application is so egregiously lacking in probable cause that no reasonable officer would have relied on it
• Warrant is so facially lacking in particularity that officers could not reasonably presume it to be valid
• Affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding
• Magistrate who issued the warrant is biased in favor of the prosecution

Question 12

How do we determine whether search warrant was properly executed by the police?

Answer 12

• Compliance with the warrant’s terms and limitations: Did officers search ONLY those areas and items authorized by the language of the warrant
• ->But when executing a search warrant, officers may detain occupants found within or immediately outside of the residence at the time of the search
• ->In GA, police may reasonably detain or search any person to protect himself or to prevent the destruction of evidence
• “Knock and announce” rule: Rule requires police to knock and announce their presence and purpose before entering, unless officer reasonably believes doing so is
• ->Futile
• ->Dangerous
• ->Would inhibit the investigation

Question 13

What are the exceptions that make a warrantless S/S permissible?

Answer 13

Exigent Circumstances
Search Incident to Arrest
Consent
Automobile
Plain View
Inventory
Special Needs
Terry "Stop and Frisk"

Question 14

What are considered Exigent Circumstances?

Answer 14

Evanescent evidence: Evidence that would dissipate or disappear in the time it would take to get a warrant (ex: tissue under suspect’s fingernails–but blood-alcohol test doesn’t qualify)

Hot pursuit of a fleeing felon: Can enter home of a suspect or third party to search for a fleeing felon–any evidence of a crime discovered in plain view is admissible

Emergency Aid exception: Police may enter a residence without a warrant when there is an objectively reasonably basis for believing that a person inside is in need of emergency aid

Question 15

Standard for a Search Incident to Arrest?

Answer 15

A lawful arrest

Search that is contemporaneous in time and place to the arrest

The geographic scope is the wingspan, the body, clothing, and any containers within the arrestee’s immediate control without regard to the offense for the arrest

(Automobiles searched in a custodial arrest: Can search interior cabin, including closed containers but not the trunk–Once arrestee is secured, officer’s search MUST be CONNECTED to evidence of a crime for which arrest was made)

Question 16

What is the standard for consent?

Answer 16

Consent must be voluntary and intelligent–officers don’t need to tell someone that they have right to refuse

Consent extends to all areas for which a reasonable person would believe permission to search was granted

If a police officer obtains consent from someone who lacks actual authority, consent is still valid under 4A provided officer reasonably believed the consenting party had actual authority

When adults share a residence, any resident can consent to a search of the common areas–upon disagreement, the objecting party prevails as to the shared spaces

Question 17

Standard for automobile exception?

Answer 17

Police officers need probable cause to believe that contraband or evidence of a crime will be found
-Officers can search the entire vehicle and can open any package, luggage, or other container that may reasonably contain the items they had probable cause to search

For a full search after a routine traffic stop, an officer doesn’t need probable cause at time of stop, provided he acquires it before initiating the search

Question 18

Standard for plain view?

Answer 18

Lawful access to the place from which item can be plainly seen

Lawful access to the item itself (officer can’t search zipped backpack–could not fit inside it)

Criminality of the item must be immediately apparent

Question 19

Standard for an inventory search?

Answer 19

Inventory searches most commonly occur in two contexts:

• Arrestees when they’re booked into jail
• Vehicles when they are impounded

Inventory searches are constitutional, provided that:

• Regulations are reasonable in scope
• Search itself complies with those regulations
• Search is conducted in good faith–solely by need to safeguard possessions/ensure officer safety

Question 20

Standard for Terry Stops?

Answer 20

Stop: brief detention or seizure for the purpose of investigating suspicious conduct

4A Seizure:

• Reasonable person would not feel free to leave or to decline to answer questions
• Should consider:
• ->Whether officer brandishes a weapon
• ->Officer’s tone and demeanor
• ->Whether individual was told he had right to refuse consent
• Individual is seized only if he submits to the officer’s authority by:
• ->Stopping
• ->Is physically restrained
• Traffic stops?
• ->Both drive and passenger are seized, so either can challenge legality of the stop
• ->Officer may order both the driver and passengers out of the car
• ->Dog sniffs are permissible as long as it does not prolong the stop unreasonably

Question 21

Standard for Terry Frisk?

Answer 21

Terry Frisk: Is a pat-down of the body and outer clothing for weapons that is justified by an officer’s belief that a suspect is armed and dangerous

What can you seize in a frisk?

• If it’s reasonably believed to be a weapon, can always be seized
• If it’s contraband, can seize only WITHOUT manipulating the object

Car frisks? During a traffic stop, if suspect is believed to be dangerous, may search passenger cabin, limited to areas where a weapon may be placed or hidden

Protective sweep of home? Can make sweep for any criminal confederates of the arrestee that may threaten officer safety

Question 22

What are the evidentiary standards applied to Terry stops and frisks?

Answer 22

Reasonable suspicion (less than probable cause)

• Terry Stops: Requires specific and articulable facts that inform an officer’s belief that criminal activity is present (Subjective intent is irrelevant–look at objective reasonableness)
• Terry Frisks: Requires specific and articulable facts that suggest a suspect is armed and dangerous (motivated by officer safety only)

Tips satisfy this standard provided they contain sufficient predictive info corroborated by the police to establish reliability

Protective Sweeps? Easiest standard–When making an in-home arrest, officers have authority, without probable cause or reasonable suspicion, to look in areas adjoining the place of arrest where an attack could take place
-To justify a sweep of more remote areas, arresting officers must have additional facts sufficient to conclude that an individual threatening to officer safety is present

Question 23

What are special needs of law enforcement? What standards are applied?

Answer 23

Drug testing: U.S. approves warrantless, suspicion-less drug tests in several contexts (Railroad employees after an impact accident; customs agents responsible for drug interdiction; School kids in extracurricular activities

Warrantless, suspicion-less searches of a parolee and his home are permissible as a condition of parole

School searches: Allows for warrantless searches of the person and the effects of public schoolchildren–permissible to investigate the violation of school rules if search is:

• Reasonable
• Not excessively intrusive in light of age/sex of student

Border searches: Neither citizens or non-citizens have 4A rights at the border with respect to routine searches

Non-law enforcement primary purpose test: Special needs doctrine does not include law enforcement programs/practices whose primary purpose is to gather criminal evidence for general use by law enforcement

Question 24

What is the exclusionary rule?

Answer 24

Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory constitutional provision is inadmissible in court against the individual whose rights were violated (usually the defendant)

Question 25

What are the 4A limits on the exclusionary rule?

Answer 25

Case-in-chief vs. cross-examination: Unconstitutionally obtained evidence is excluded from the prosecutor’s case-in-chief ONLY–it may be introduced to impeach the defendant’s testimony on cross.

Knock and Announce violations: Police violation of the “knock and announce” rule does NOT require suppression of evidence that is subsequently discovered

Police error: To trigger the exclusionary rule, the police conduct must be deliberate, reckless, or grossly negligent (ex: doesn’t apply to bookkeeping error where error was result of simple negligence)

Officers’ “reasonable” mistakes: Exclusionary rule doesn’t not apply to evidence obtained erroneously when executing a search warrant, provided an officer’s mistake was reasonable

Fruit of the poisonous tree: Derivative evidence, which can be obtained by exploiting prior unconstitutional conduct (a confession obtained as a result of an earlier unlawful arrest), that is inadmissible in a prosecutor’s case in chief

• To nullify the fruit of the poisonous tree, the prosecutor must show a break in the causal link between the original illegality and criminal evidence later obtained. Can be done through:
• ->Independent source: Source of the discovery and seizure of evidence is distinct from original “poisonous tree”
• ->Inevitable discovery: Evidence would necessarily have been discovered through lawful means (ex: would have discovered body through grid search, even if found by unlawful interrogation)
• ->Attenuation: Admission of derivative evidence where the passage of time and intervening events purge the taint of the original illegality and restore the defendant’s free will (Ex: Def. is illegally arrested, is released on bail, meets with attorney, and a few days later confesses)

Question 26

What are the requirements/standards for wiretapping and eavesdropping?

Answer 26

Wiretapping: Four major requirements for a valid wiretap warrant

• Suspected Persons: Warrant must name the suspect person whose conversations are to be overheard
• Time: Wiretap must be for a strictly limited time period
• Crime: Must have probable cause that a specific crime has been committed
• Conversations: Warrant must describe with particularity the conversations that can be overheard

Eavesdropping: If you speak to someone who has agreed to a wiretap or some other form or electronic monitoring, you have no 4A claim–you assume the risk that the other party will not keep the conversation private

Question 27

When does a de facto arrest occur?

Standard of proof?

For what offenses does the 4A permit a custodial arrest?

When do you need an arrest warrant?

Answer 27

A de facto arrest occurs when the police compel someone to come to the police station for questioning or fingerprinting

Standard of proof is always Probable Cause

All offenses, even those punishable by a monetary fine, permit a custodial arrest

Don’t need an arrest warrant to arrest someone in public, but absent an emergency, officers need a warrant to arrest someone in his home, and both an arrest warrant and a search warrant in someone else’s home.

Question 28

What are the three federal constitutional challenges that can be brought to exclude a confession?

Answer 28

Fourteenth Amendment Due Process Clause

Sixth Amendment Right to Counsel

Fifth Amendment Miranda Doctrine

Question 29

How can one exclude a confession under the Due Process Clause?

Answer 29

The standard is Involuntariness, which means that the confession is the product of police coercion that overbears the suspect’s will

Question 30

In GA, what does a confession need to justify a conviction?

Answer 30

In GA, a confession needs to be corroborated by other evidence

Question 31

How can one exclude a confession under the Sixth Amendment?

Answer 31

Can exclude pursuant to the right to counsel, which is an express constitutional guarantee:

• Attaches when the defendant is formally charged
• Applies at all critical stages of the prosecution that take place after the filing of formal charges (arraignment, probable cause hearings, police interrogation, plea bargaining)
• Right is offense specific–can only be applied to a crime formally charged
• Confessions: Incriminating statements obtained from the defendant about charged offenses violate the Sixth Amendment if those statements are deliberately elicited and the defendant did not knowingly, intelligently, and voluntarily waive his right to have his attorney present

Question 32

What are a defendant’s/suspect’s rights under the Fifth Amendment Miranda doctrine? When do the rights apply?

Answer 32

Miranda rights are implied rights grounded in the Self-Incrimination Clause

Four core warnings:

• Right to remain silent
• Anything you say can and will be used against you in a court
• Have a right to an attorney
• If you don’t have an attorney, one will be appointed

When rights need to be made known:

• What’s custodial: Two part test
• ->Reasonable person would have felt that she was not at liberty to end the interrogation and leave
• ->Environment presents the same inherently coercive pressures as the station-house
• —>Also: Custody inquiry should also take account of a juvenile suspect’s age where it is relevant and where officer knew or should have been aware of the age at the time of questioning
• During Interrogation: Any conduct the police knew or should have known was likely to elicit an incriminating response (doesn’t apply to spontaneous declarations)
• Exception for Public Safety: If a custodial interrogation is prompted by an immediate concern for public safety, Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect

Question 33

Unless the public safety exception applies, a suspect’s incriminating statements during a custodial interrogation only apply if….?

Answer 33

An officer:

• Reasonably conveys to the suspect his or her core Miranda rights, and
• thereafter obtains a valid waiver of a suspect’s Miranda rights to silence and counsel

Question 34

What are the requirements for a valid Miranda waiver? How is it executed, and what is the burden of proof?

Answer 34

Two core requirements for a waiver:

• Must be “Knowing and Intelligent”: Suspect must understand nature of rights and consequences of abandoning them
• Must be “Voluntary” and not a product of police coercion

A Miranda waiver can be “express” or “implied” by a course of conduct that indicates a desire to speak with police interrogators (ex: an uncoerced statement to the police)

The burden of proof for proving a valid waiver of suspect’s Miranda rights is by preponderance of the evidence

Question 35

How does a suspect invoke his or her Miranda rights?

Answer 35

Invoking the right to remain silent

• Suspects must unambiguously invoke their right to remain silent
• Once this is invoked, officers must scrupulously honor the invocation–can’t badger a suspect. In addition, officers must wait a significant amount of time before reinitiating questioning AND must first obtain a valid waiver

Invoking the right to counsel

• Request for counsel must be sufficiently clear that a reasonable officer would understand the statement to be a request
• Once a suspect asks for counsel, ALL questioning must cease unless initiated by the suspect
• ->Not offense specific, so interrogation following a request for counsel is prohibited for ALL topics without attorney present
• ->Request for counsel expires 14 days after a suspect is released from custody; a waiver obtained after this period is valid, provided it is knowing, intelligent, and voluntary

Question 36

What are the limitations on evidentiary exclusion from Miranda violations?

Answer 36

Incriminating statements obtained through Miranda violation can’t be used in case-in-chief, but may be used to impeach defendant’s testimony during cross

Failure to give Miranda warnings does NOT require the suppression of the physical fruits of incriminating statements (if statement is voluntary)

If statement is inadmissible due to a Miranda violation, subsequent incriminating statements after a waiver are admissible, provided original statement was not obtained through the use of inherently coercive police tactics

A guilty verdict partially obtained through Miranda-violative evidence will stand if the government can prove, beyond the a reasonable doubt, that the error was harmless because defendant would have been convicted without tainted evidence

Question 37

What are three types of pretrial identifications?

Answer 37

Line-ups: Witness asked to identify perpetrator from group

Show-ups: One-on-one confrontation between witness and suspect

Photo arrays: Witness shown series of photos from which to identify suspect

Question 38

Two substantive challenges to pretrial identifications?

Answer 38

Denial of the right to counsel

• 5A: No Fifth Amendment right to counsel under the Miranda doctrine for pretrial identification purposes
• 6A: A right to counsel here exists at line-ups and show-ups that take place after formal charges (doesn’t exist for photo arrays!!)

Violation of Due Process:

• Pretrial identification violations due process when it is so unnecessarily suggestive that is creates a substantial likelihood of misidentification
• Courts must weigh the reliability of suggestive identification against its corrupting effect

Question 39

What are potential remedies for a constitutional violation in pre-trial identifications?

Answer 39

Remedy for constitutional violations in pretrial identifications is the exclusion of a witness’s in-court identification

However, an IN-COURT identification will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconstitutional show-up, line-up or photo array. Prosecutor must point to several factors:

• Witness’s opportunity to view the defendant at the crime scene
• The specificity of the description given to the police
• The certainty of the witness’s identification

Question 40

What do we need to know about grand juries?

Answer 40

Grand juries issue indictments in secret proceedings. States aren’t required to use grand juries, but GA does

Question 41

What is involved in pretrial proceedings? What’s evidentiary standard?

Are detention hearings necessary for pretrial detention?

Answer 41

After arrest, a defendant must be brought before a magistrate (in GA, no more than 72 hours) who:
-Advises him of his rights
-Sets bail
-Appoints counsel if necessary
Government needs probable cause to:
-Both bind a defendant over for trial, AND to detain him in jail before trial

A hearing to determine probable cause (Gerstein hearing, or commitment hearing) is unnecessary to justify detention if:

• Grand jury has issued an indictment
• A magistrate has issued an arrest warrant

Question 42

What are trial rights owed to defendants?

Answer 42

Evidentiary disclosure/Brady Rule: Prosecutor must disclose all material, exculpatory evidence

Right to Unbiased Judge means:

• Judge has no financial stake in the outcome of the case
• Judge has no actual malice towards the defendant

Jury rights

• Right to a fair and partial jury
• Right to a jury trial when the maximum authorized sentence exceeds 6 months (in GA, right to jury trial in ALL criminal trials)
• Fewest number of jurors allowed is 6 (in GA, 6 in a misdemeanor trial, 12 in felony)
• Jury verdicts in criminal trials must be unanimous ONLY if 6 jurors are used–12-person verdicts don’t need unanimity (in GA, ALL jury verdicts must be unanimous)
• Pool from which jury is draw must represent “a cross-section of the community”
• Peremptory challenges to exclude jurors are allowed on both sides, as long as they’re not used to exclude on account of race or gender

Right to counsel

• Claims of ineffective assistance of counsel are subject to a two-prong test
• ->Counsel’s performance fell below an objective standard of reasonableness (so bad that lawyer wasn’t acting as counsel) (ex: Not deficient where attorney took cat naps)
• ->But for the deficiency, the outcome of the trial would have been different (ex: insufficient for prejudice where attorney slept through a witness’s testimony)

Question 43

What’s required before a guilty plea is accepted?

Answer 43

Judge must establish that it is knowing and voluntary

Before accepting a plea, judge must conduct a colloquy in open court addressing on the record:

• The nature of the charges, including required elements
• The consequences of the plea (e.g. waivers of rights)

Difficult to withdraw plea, but can do so if:

• The plea is involuntary, due to a defect in the colloquy
• Defendant prevails on ineffective assistance claim
• Prosecutor fails to fulfill his or her part of the bargain

Question 44

What is the standard for punishment under the Eighth Amendment? What’s the standard regarding the death penalty?

Answer 44

8A prohibits cruel and unusual punishment and disallows criminal penalties that are grossly disproportionate to the seriousness of the offense committed

Death Penalty and 8A
-A death penalty statute would violate the 8A if it created an “automatic category” for the imposition of death

• Jurors must be allowed to consider all potentially mitigating evidence when deciding to impose the death penalty
• Can’t impose death penalty against: defendants with mental retardation, defendants who are presently insane, or defendants who were under 18 at the time of the offense (also can’t impose life sentence to offenders under 18)

Question 45

When does double jeopardy attach, and how does it apply with regard to different offenses?

Answer 45

Double jeopardy attaches at:

• A jury trial when they jury is sworn
• At a bench trial when the first witness is sworn
• At a guilty plea when the court accepts the defendant’s plea unconditionally

Double jeopardy does not apply to civil proceedings (so can be prosecuted criminally after being prosecuted civilly)

Same offense rule: Two offenses are not the same offense for purposes of double jeopardy IF EACH contains “an element the other does not”

• So, an offense could be a “lesser included offense” to the other
• Prosecution of the greater offense precludes later prosecution for the lesser-included offense (and vice-versa)

Double jeopardy bars retrial for the same offense by the SAME SOVEREIGN. So, who are the same sovereign?

• State and federal governments? NO
• Different States? NO
• States and municipalities within them? YES

4 EXCEPTIONS to the double jeopardy rule that permit retrial:

• Hung jury
• Mistrial for manifest necessity (ex: defect found in indictment that could not be cured by amendment)
• A successful appeal, unless reversal appeal was based on insufficiency of evidence presented by prosecution
• A breach of the plea agreement by defendant

Question 46

What are the standards for taking the Fifth Amendment privilege against compelled self-incrimination?

Answer 46

Who: Anyone can take the Fifth

When: Can be asserted in ANY proceeding in which an individual testifies under oath

Failure to assert it civilly undermine it criminally? YES, an individual cannot exclude evidence obtained from him in a civil trial in a subsequent criminal proceeding per the 5A

Scope?

• Disallows negative prosecutorial comment on 1) decision not to testify at his trial, and 2) defendant’s invocation of his right to silence or counsel
• Does not apply to content of documents mandated by subpoena (it’s only a testimonial privilege)

3 Ways to eliminate the privilege:

• Grant of immunity (prosecutors can grant “use and derivative use” immunity, which bars the government from using YOUR testimony or anything derived from it to convict you)
• ->Can still be convicted based on evidence obtained prior to the grant of immunity
• Taking the stand: Taking the stand waives the defendant’s ability to take the Fifth as to anything within scope of cross
• Statute of Limitations: Privilege is unavailable if statute of limitations has run on underlying crime, since a witness’s testimony could not expose him to prosecution anyway