criminal procedure Flashcards by mi moore

Exclusionary rule

a remedy of American constitutional procedure whereby someone who has been the victim of illegal search or a coerced confession can have the product of that illegal search or coerced confession excluded from any subsequent criminal prosecution

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Limitations on exclusion
Doesn’t apply to __ proceedings

A grand jury witness may be
compelled to testify based on __ evidence

not an available remedy in __

doesn’t apply to the use of excluded
evidence for ___

not an available remedy for violations
of the __in the execution of search warrants

grand jury proceeding

illegally seized

civil proceedings

parole revocation

impeachment of D’s testimony

“knock and announce” rule

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fruit of poisonous tree
exclude all evidence obtained or derived
from __

doesn’t apply to __ unless the police
acted __ in obtaining the info

break the chain 3 I’s

police illegality

Miranda violations; bad faith

Independent source; Inevitable discovery; Intervening acts of freewill by D

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exclusionary rule & convictions

test applied by courts

harmless error test; a conviction will be upheld if the conviction would have resulted despite the improper evidence

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4th Amend.

Protects citizens from UNREASONABLE searches & seizures

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arrests & detentions
arrest must be based on __

arrest warrant not required if
arresting person in a __

non emergency arrest in __
DOES require a arrest warrant

Police need probable cause to arrest
You and compel you to come to the
Police station either for __or__

probable cause

public place

the home

fingerprinting or interrogation

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Investigatory detentions (terry stops)
Briefly detain a person police must have
__ supported by ___ of criminal activity

reasonable suspicion depends on __

police may stop a car if they have at
least __that the law has been violated

reasonable suspicion; articulable facts

totality of the circumstances

reasonable suspicion; exception Checkpoint roadblocks (DUI and borders)

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traffic stops and dogs
during routine stop, a __ is NOT a __
so long as it doesn’t extend the stop beyond
the time necessary to issue a ticket

sniff; search; a dog alert to the presence of drugs can form the basis for probable cause for a search; CANNOT use a dog directly outside the home of suspected drug dealer

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search & seizure

5 step analysis?

Governmental conduct; reasonable expectation of privacy; did police have valid warrant?; if invalid, does officer have a good faith defense?; exception to warrant requirement

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governmental conduct

includes publicly paid police (on or off
duty) and __ acting at the direction of the
public police

do NOT constitute governmental conduct
unless they are __ (ie. ___)

private individual

deputized with the power to arrest; store security guards, subdivision police, campus police

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reasonable expectation of privacy?
STANDING

3 automatic categories of standing

1 sometimes standing category

9 no standing categories (no standing for
anything you hold out to the public)

own the premises searched; live on the premises searched; an overnight guests

if you own the property seized you have standing only if you have a reasonable expectation of privacy in the item or area searched

voice; handwriting; paint on outside of car; bank account records; monitoring location of your car on public street or driveway; anything that can be seen across the open fields; anything that can be seen from flying over in the public airspace; odors from car or luggage; garbage on the curb

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did the police have valid search warrant?
2 core requirements

probable cause definition
particularity defined

probable cause & particularity

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

must state the place to be searched and the things to be seized

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warrants & informants
sufficiency of police affidavit or
probable cause based on informant
info is determined by __

an informant’s __ and _ are relevant
factors

a valid warrant can be based IN PART
on an informant’s tip though the
informant is __

totality of circumstances

credibility; basis of his knowledge

anonymous

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no knock entry permitted in the
execution of search warrants if

biggest fear is

knocking and announcing would be dangerous, futile, or inhibit the investigation

destruction of evidence

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if invalid warrant, does an officer’s
good faith defense save it?
General rule

4 exceptions

good faith reliance on a search warrant overcomes the defects

the affidavit underlying the warrant is so lacking in probable cause no reasonable officer would have relied on it; particularity; police or prosecution lied or misled the judge; judge was biased

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exceptions to warrant requirement

search incident to arrest

arrest must be lawful; arrest and search must be contemporaneous in time and place; can search the person and the areas within his wingspan

Gant rule search incident to arrest &
Cars police may search the interior of car ONLY if:

So long as search itself is valid
ANY contraband found will be admissible

arrestee is unsecured & still may gain access to the interior of car OR police reasonably believe that evidence of the offense for which the person was arrested may be found in the car

Community caretaker exception

Cell phone need a warrant!

“emergency aid exception”; most states recognize this; justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public

Automobile exception
Requires __

Can search the entire car including trunk
May open any package, luggage or other container
Which could __ they had probable cause to look
For whether that package luggage or other
Container is owned by the passenger or the driver

Probable cause can arise __ the stop BUT must
Arise before__

probable cause

reasonably contain the item

after; anyone or anything is searched

Plain view

2 requirements

police must be legitimately present at the location where he does the viewing of the item seized AND it must be immediately apparent that the item is contraband or fruit of crime

Consent must be __

Third party consent
2 people one doesn’t consent they __

if person who doesn’t consent is __ for a
reason unrelated to the refusal the police may search
upon consent of the other occupant

voluntary

control

removed from premises

stop and frisk
a terry stop is a __

legal standard is

terry frisk is a __ of the outer clothing & body
to check for weapons

if officer reasonably believes by the plain feel
something is a weapon or contraband then it
will be admissible

if probable cause arises during an investigatory
stop the detention can become __and the officer
could then conduct a full search incident to arrest

brief detention for the purpose of investigating suspicious conduct

reasonable suspicion

pat down

arrest

auto stops: if a vehicle is properly stopped for a
traffic violation & officer reasonably believes that a driver
or passenger may be armed & dangerous officer may
__ of the suspected person and may __so long as it is limited
to the areas in which a weapon may be placed

conduct a frisk; search the car

evanescent evidence

hot pursuit
rule of thumb

inventory searches

evidence that might disappear quickly if police took the time to get a warrant

police not w/in 15 mins behind the fleeing felon not a valid hot pursuit; any evidence they see in plain view will be admissible

arrestee’s personal belongings and the entire car (including closed containers)

public school searches children engaged in __can be randomly drug tested warrantless searches of children’s __is permissible to investigate violations of school rules 3 requirements to be held reasonable

extracurricular activities effects (backpacks, purses) offers a moderate chance of finding evidence of wrongdoing; measures adopted are reasonably related to the objectives of the search and search is not excessively intrusive

wiretapping & eavesdropping exceptions: unrealiable ear & uninvited ear

all wiretapping & eavesdropping require warrant assume the risk that person speaking with consent to monitoring or is wired; no 4th A right if she makes no attempt to keep the conversation private

confessions Miranda rights triggers Custody Interrogation

custodial interrogation at time of interrogation, a reasonable person wouldn’t feel free to leave; court determine whether the situation presents the same inherently coercive pressures as station house questioning any conduct where the police knew or should have known that they might illicit an incriminating response from the suspect

Miranda warnings not required prior to Admissibility of __ Miranda waiver requirements

spontaneous statement knowingly and voluntarily; court will employ totality of circumstances test

Invoking Miranda rights Right to remain silent Right to counsel

must be unambiguous; police may reinitate after a significant amount of time, D is remirandized and the questions are limited to a crime that was not the subject of the earlier questioning unambiguous; questions stop immediately until given lawyer or D reinitiates questioning; if break in custody then police can ask D to waive Miranda rights after 14 days

5th amendment counsel & 6th amendment 5th amendment arises when suspect invokes his __ 5th amend is NOT offense specific and applies _ 6th amend IS offense specific and atty only need be present during __

Miranda rights to entire process of custodial police interrogation questions about the specific case; D can waive 6th amend right to counsel when given appt counsel and then talk to them about the crime for which he was charged

pretrial identification 2 substances bases to attack denial of right to counsel – no right to counsel in these 6 stages denial of due process- pretrial techniques are so __ and so substantially likely to produce a __ they deny due process remedy

denial of right to counsel or denial of due process post charge lineups and showups require counsel taking of blood, handwriting, pre-charge lineups, brief recess during D’s testimony at trial, parole & probation revocation proceedings, fingerprinting unnecessarily suggestive; misindentification exclude unless the state can show that it has an adequate indep. Source for that in-court identification (adequate opportunity to observe D at the time of the crime)

pre-trial procedures bail issues are __ grand juries are __ D has no right to (2) brady doctrine

immediately appealable secret; no right to appear and no right to send in witnesses evidence is favorable to D and prejudice has resulted meaning there is a reasonable probability that the result would have been different had the information been disclosed

trial right to unbiased judge right to jury trial when number and unanimity of jury cross sectional req right to counsel criminal D has right to counsel applies to all __ of prosecution

no financial interest or actual malice maximum authorized sentence exceeds 6 months minimum 6 (unanimous); 12 doesn’t have to unanimous jury pool reflect a fair cross section not the impaneled jury critical stages

ineffective counsel rule right to self representation right to confront witnesses exceptions

must be deficient performance by counsel and but for that deficiency there is a reasonable probability that the result of proceeding would have been different; must specify particular errors must be knowingly and intelligent and he is competent to proceed pro se (discretion of judge) when preventing such confrontation serves an important public purpose and the reliability of the witness testimony is otherwise assured; or D is disruptive and removed

guilty pleas general rule: judge must address with D 4 things 4 good bases for withdrawing guilty plea after sentencing

court wont distrurb guilty pleas after sentencing nature of the charge; max penality, any mandatory minimums, right not to plead & demand a trial, all of this must be on the record plea was involuntary; lack of jurisdiction; ineffective assistance of counsel; failure of P to keep an agreed upon plea bargain

death penalty D must be able to present __ Can be NO __ for imposition of death penalty Only a __ may determine aggravating factors

mitigating evidence automatic category jury

Double jeopardy Attaches in jury trial at __ Attaches at bench trial at __ first witness Jeopardy doesn’t generally attach when the Proceedings are Exceptions permitting retrial hung jury; When D breaches a plea bargain agreement His plea and sentence can be withdrawn and the __ Two crimes don’t constitute same offense if each Crime requires __that the other doesn’t Being put in jeopardy for a greater offense __ For any lesser included offense (and vice versa) Separate sovereigns

jury is sworn is sworn civil manifest necessity; successful appeal original charges reinstated (continues for every subsequent trial) additional elements bars retrial; exception charged battery victim later dies can be charged with murder double jeopardy bars retrial for the same offense by the same sovereign

5th amendment compelled testimony can be asserted in any type of case you must assert it the __time or it is __ must be claimed in __ to prevent the privilege from being waived in later __prosecution protects against __ NOT government use of __ prosecutor cannot make a negative comment on D’s ___ after being given Miranda warnings Silence BEFORE Miranda CAN be used against D Standard applied? 5th am privilege eliminated in 3 ways:

first time; waived civil; criminal compelled testimony; physical evidence in ways to incriminate them (voice, hair, blood, handwriting) failure to testify; choosing to remain silent P can comment if D asserts not being allowed to explain His side of the story harmless error immunity; no possibility of incrimination (run of statute of limitations); waiver (D takes the witness stand so subject to x-exam)