Criminal Procedure

Question 1

Fourth Amendment - what it does

Answer 1

Prohibits unreasonable searches and seizures

A search is per se unreasonable unless it is conducted pursuant to a warrant or falls within an exception to warrant requirement

Question 2

What gov has to show to have a warrant issued (search vs. arrest)

Answer 2

Probable Cause

Search Warrant - more probable than not that contraband or evidence of a crime is presently located in the area to be searched

Arrest - more probable than not that a crime has been committed and the person to be arrested committed it

**both must be sufficiently particular as to person and place

Question 3

Standing - To assert a violation of the Fourth Amendment, a suspect must show:

Answer 3

Reasonable expectation of privacy in the area searched or the thing seized

Question 4

Reasonable Expectation of Privacy - two elements

Answer 4

1. subjective expectation of privacy
2. objectively reasonable

**heightened in home and the 30-50 ft surrounding it (i.e. yard)

Question 5

Exclusionary Rule - what it is and limitations

Answer 5

Prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial.

Fruit of the poisonous tree doctrine - evidence derived or obtained from illegal govt conduct is excludable against D

doesn’t apply to grand jury proceedings, civil cases, parole hearings, admin cases, violations of the knock and announce rule, or evidence seized in violation of miranda

Question 6

Exclusionary Rule

Fruit of the Poisonous Tree - Exceptions

Answer 6

1. Independent source
2. Inevitable discovery
3. Intervening acts of freewill by the D
4. Attenuation - evidence challenged is too remote from unlawful search or seizure

Question 7

Warrant Exceptions

Answer 7

BACH’S PIES

B - BORDER searches
A - AUTOMOBILE searches
C - CONSENT searches
H - HOT pursuit
S - SCHOOL searches
P - PLAIN view
I - searches INCIDENT to arrest
E - EMERGENCY searches
S - STREET encounters

Question 8

Warrant Exception - Auto Stop

Answer 8

to stop a car, police must show: (1) probable cause a traffic violation has occurred; or (2) reasonable suspicion of criminal activity

• if car is parked then only “articulable basis” needed
• mistake of law for violation ok as long as reasonable
• doesn’t matter if traffic infraction isn’t why stopped just need to ask if could’ve stopped the car for an infraction

Question 9

Warrant Exception - Search of the auto after the stop

Answer 9

a warrantless search of car and containers is permissible provided it is predicated on probable cause that the vehicle or occupants or recent occupant contains contraband or evidence of a crime

Question 10

Warrant Exception - searching car incident to a recent occupant’s arrest: requirements

Answer 10

Arizona v. Gant

1. The arrestee cannot be safely secured and is within reaching distance of the passenger compartment at the time of the search
2. It is reasonable to believe that the car contains evidence relevant to the arrest that was made

• *need probable cause or consent to search trunk
• *need warrant to search a cell phone

Question 11

Police checkpoints on the road - requirements

Answer 11

1. stop cars using a neutral, articulable standard

2. serves purpose related to automobiles and their safety

Question 12

Warrant Exception - Hot Pursuit

Answer 12

while actively pursuing a felon, police can search for anything related to the pursuit or can search for their safety

can be used to prevent destruction of evanescent evidence

Question 13

Warrant Exception - School searches

Answer 13

School authorities only need reasonable grounds for believing that a search will yield evidence that a penal law or school rule has been violated

**Students have fewer First and Fourth Amendment rights and more limited REP than adults

Question 14

Warrant Exception - Border searches

Answer 14

at borders officials can conduct routine searches of persons and their luggage. do not even need reasonable suspicion

these are per se reasonable

have articuable suspicion to detain, search and questio if appear to fit profile of drug trafficker

Question 15

Warrant Exception - Plain view

Answer 15

Police may seize evidence in plain view without a warrant

-police can’t use anything not available to public to view this evidence (flashlights ok)

Question 16

Warrant Exception - Search Incident to Arrest

Answer 16

police may search a lawfully arrested person in his immediate surrounding area without a warrant

-may sweep the area for officer safety of with reasonable belief an accomplice may be present

Question 17

Warrant Exception - Emergency Searches

Answer 17

The police may enter constitutionally protected areas is:

1. police have objective reasonable belief that there is an emergency and an immediate need for the police to protect persons and property
2. reasonable connection between emergency and area searched

**look at timing. lose this exception when the emergency is over

Question 18

Warrant Exceptions related to street encounters

Answer 18

Stop and request information- articuable basis
Stop and frisk - reasonable suspicion
Stop and arrest - probable cause

Question 19

Warrant Exception - Stop and Frisk - standard

Answer 19

Terry Stop

Police need reasonable suspicion to believe that the suspect is engaged in criminal activity

If reasonable suspicion the person is armed and dangerous then can frisk. plain touch only - if have reasonable belief that what they feel is contraband or a weapon then they may seize the suspected item

Question 20

Warrantless Stop and Arrest

Answer 20

Probable Cause

Requires facts and circumstances that would lead a RPP to conclude it is more probable than not that a crime has been or is about to be committed and the person to be arrested is the one that committed/was going to commit the crime

totality of the circumstances is the test

Question 21

Double Jeopardy Clause

Answer 21

Protects D from multiple prosecutions or punishments by the same sovereign for the same offense

Use Blockburger test - whether each offense requires proof of at least one element or fact that the other statute does not

lesser included offenses - where it is impossible to commit one without the other. must merge or violate double jeopardy

Question 22

When does DJ attach?

Answer 22

Jury trial - when jury sworn

Non-jury - when first witness sworn

Question 23

Miranda Warnings - what triggers rights?

5th amend rights

Answer 23

Custodial Interrogation

custody - look at totality of circumstances. objective test- would a RPP believe she was not free to leave?

interrogation - questioning reasonably likely to illicit a criminal response that is initiated by law enforcement

• *doesn’t apply when D is not in custody (at home, over the phone)
• *if right to counsel hasn’t attached yet, D can waive miranda rights. must be voluntary

Question 24

Effect of Miranda violation

Answer 24

Incriminating statements may not be used against D at trial.
Exceptions:
-can be used to impeach
-emergency exception - police can question about where gun is or kidnapped victim
-doesn’t apply to derivative evidence - evidence found as a result of D’s incriminating statements in violation of Mirada.

Question 25

When does right to counsel attach?

Answer 25

When D in custody CLEARLY and UNEQUIVOCALLY asks for an attorney (either after miranda warnings or when in front of judicial officer and hears the charges against him)

**this right is offense specific

Question 26

Evidence of line-up is inadmissible at trial if

Answer 26

1. made without presence of attorney (post arraignment, after assigned to counsel)
2. it was the fruit of an unlawful arrest
3. was unduly suggestive

court considers totality of the circumstances

Question 27

Corpus Delicti Rule

Answer 27

C can’t be convicted solely on confession without some additional proof crime has been commited