Criminal Procedure

Question 1

The six exceptions to the warrant requirement for searches are

Answer 1

(1) Search incident to constitutional arrest
(2) Automobile exception
(3) Plain view
(4) Consent
(5) Stop and frisk
(6) Hot pursuit, Evanescent Evidence, Emergency Aid

**See also educational searches and searches incident to incarceration or impoundment

Question 2

Police may search the passenger compartment to a vehicle (NOT THE TRUNK) incident to a lawful arrest of the DRIVER if

Answer 2

(1) The arrestee is unsecured and may still gain access to the interior of the vehicle; or
(2) the police reasonably believe that evidence of the OFFENSE FOR WHICH the person was arrested may be found in the vehicle

• This is called the GANT rule
• *Look out for police raising the emergency aid/community caretaker exception here since this rule became a lot narrower after the Gant case

Question 3

Under the automobile exception, police may search an automobile without a warrant (and without a lawful arrest) if

Answer 3

the police have PROBABLE CAUSE to believe that the vehicle contains fruits, instrumentalities, or evidence of a crime.

They may search the entire vehicle and any container which might REASONABLY CONTAIN the item (the “container rule”).

This includes the trunk.

Question 4

Under the “plain view” exception, police may make a warrantless seizure if they

Answer 4

(1) are legitimately on the premises
(2) discover evidence, fruits, instrumentalities, or contraband (E, F, I, or C)
(3) such evidence is in plain view; and
(4) have probable cause to believe (i.e. it is IMMEDIATELY APPARENT) that the item is E, F, I, or C

Question 5

Under the search incident to arrest exception, the areas the police may search are

Answer 5

(1) the arrestee’s person and
(2) areas into which the arrestee might reach to obtain weapons or destroy evidence (within the arrestee’s “wingspan”)
(3) the passenger compartment of their vehicle under the GANT rule

Question 6

Under the consent exception, one resident can consent to the search of another resident’s room where the first resident

Answer 6

has general access to the other resident’s room.

Question 7

A person has a reasonable expectation of privacy in the person’s

Answer 7

home, place of business, automobile, and personal effects.

Question 8

A person does not have a reasonable expectation of privacy

Answer 8

another’s home, another’s business, another’s automobile, open field, garbage they put on the curb, or area open to the public.

Question 9

A person who does not have a reasonable expectation of privacy has no

Answer 9

standing to object to the search, no matter how unreasonable.

Question 10

A search is reasonable and constitutional if the

Answer 10

(1) police had a search warrant based on probable cause; or

(2) the search falls within an exception

Question 11

A stop and frisk requires the officer have

Answer 11

reasonable suspicion.

Question 12

If police are conducting a reasonable search for item “X”, they _____ seize other items they come across during that search.

Answer 12

can

Question 13

Evidence obtained during an unreasonable and unconstitutional search will NOT be suppressed if

Answer 13

(1) the police had a good faith belief that the warrant was valid; or
(2) the evidence is used during a proceeding other than a trial on the merits (grand jury, sentencing, pre-trial); or
(3) the evidence is used to impeach the D who has testified

Question 14

The exclusionary rule for suppressing evidence does not apply to evidence used during

Answer 14

a proceeding other than a trial on the merits, e.g. grand jury, sentencing, pre-trial.

Question 15

For home searches, the two most likely exceptions to the warrant requirement are

Answer 15

(1) consent; or

(2) exigent (emergency) circumstances

Question 16

Anything observed during a stop and frisk, including anything observed through a surface pat down, _______ be seized.

Answer 16

can.

**The feel of any items in pockets through the outer clothing must give rise to probable cause to then search inside the pockets.

Question 17

When analyzing confessions, always start with the assumption that the defendant’s confession _____ admissible under __________.

Answer 17

is; the rules of evidence governing party admissions.

Question 18

The three constitutional violations that suppress a confession are

Answer 18

(1) involuntary confessions;
(2) confessions that violate Miranda;
(3) confessions that violate the right to counsel

Question 19

A confession is “involuntary” and inadmissible under the ___________ test.

Answer 19

totality of circumstances.

**No question on the exam will debatable, it will be 100% clear whether it was involuntary or not.

Question 20

An involuntary confession _________ be used to impeach a defendant that takes the witness stand.

Answer 20

cannot.

Question 21

The two types of Miranda violations are

Answer 21

(1) failing to give Miranda warnings

(2) failing to follow the applicable rules once the warnings are given

Question 22

Miranda warnings must be given prior to

Answer 22

custodial interrogations.

Would a reasonable person in the party’s position feel like he was free to terminate the interrogation and leave? If not, did it have the same inherently coercive pressures of the station house?

• D need not be arrested, could be even be in own home if it has the hallmarks of a custodial interrogation.
• *Miranda warnings are not required if the D is never interrogated.

Question 23

If Miranda has been violated, the confession ______ be used in the prosecution’s case in chief but can be used to _________.

Answer 23

cannot;

impeach the defendant that takes the witness stand as a prior inconsistent statement.

Question 24

The Sixth Amendment right to counsel attaches when the defendant is

Answer 24

formally charged.

Question 25

Once a defendant is formally charged, there ______ be interrogation unless _______.

Answer 25

cannot; counsel is present or the defendant expressly waives the right to counsel.

Question 26

If the Sixth Amendment right to counsel has been violated, the confession ______ be used in the prosecution’s case in chief but ________ be used to _________.

Answer 26

cannot; can be used impeach the defendant that takes the witness stand as a prior inconsistent statement.

Question 27

Burden of proof: The state must prove _____ element of the crime charged beyond ________.

Answer 27

each; a reasonable doubt.

Question 28

If the defense is that one of the elements of the crime was not established, then the defendant only has the right to _______

Answer 28

reasonable doubt, and no burden to establish the element’s absence.

Question 29

The elements of a crime include

Answer 29

each piece of behavior, mental state, or result that might be required by the crime.

Question 30

For every defense other than that one of the elements of the crime was unproven, a state may require required the ________ to prove the defense by a __________.

Answer 30

defendant; preponderance of the evidence.

**Clear and convincing standard for insanity has even been upheld.

Question 31

The three double jeopardy issues that might be present on the exam are

Answer 31

(1) when does jeopardy attach (at the first proceeding, see rule below)
(2) assuming jeopardy has attached, what exceptions will allow the prosecutor to retry (there are three, see below)
(3) what is meant by “same offense” (see below)

Question 32

In a jury trial, jeopardy attaches when

Answer 32

the jury is sworn.

Question 33

In a bench trial, jeopardy attaches when

Answer 33

the first witness on the issue of guilt is sworn.

**Don’t be fooled by witnesses applying to preliminary matters like discovery.

Question 34

The three exceptions to the double jeopardy requirement

Answer 34

(1) the first trial resulted in a hung jury;
(2) a convicted defendant wins an appeal and asks for a new trial (but can’t retry D for an offense MORE serious than the offense D was convicted of at first trial);
(3) mistrial not a result of prosecutorial conduct

Question 35

Two crimes are different offenses for double jeopardy purposes if

Answer 35

each one requires proof of a fact/element that the other does not.

E.g., if crime 1 has elements A,B and crime 2 has elements A,B,C, the crimes are the SAME for jeopardy purposes b/c crime 1 does NOT require proof of an additional element

Question 36

A defendant has a constitutional right to a jury trial for all ______ criminal offenses.

Answer 36

serious.

Question 37

A criminal offense is “serious” for right to a jury purposes if

Answer 37

the maximum possible sentence is MORE THAN six months.

Question 38

An indigent defendant is entitled to counsel in all

Answer 38

(1) felony cases; and
(2) misdemeanor cases in which a jail sentence is actually imposed, including if the sentence is suspended

**So if a judge denies a D’s right to counsel, he/she cannot sentence the D to a jail sentence (only a fine)

Question 39

Double Jeopardy clause prohibits retrying a D whose conviction has been reversed on appeal for any offense _________ than the offense for which D was convicted at the first trial.

Answer 39

more serious

Question 40

A confession in violation of Miranda _______ sufficient to exclude evidence discovered due to the invalid confession unless the violation was

Answer 40

might not be; purposeful.

Question 41

An involuntary confession _________ sufficient to exclude evidence discovered due to the involuntary confession.

Answer 41

is always.

**Test is the totality of the circumstances. On the exam it will be obvious.

Question 42

Probable cause is

Answer 42

trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has or is committing crime

Question 43

Reasonable suspicion requires

Answer 43

articulable facts

Question 44

Pretextual stops occur when

Answer 44

police have PC to believe driver violated a traffic law but have an ulterior motive to investigate a different crime for which they lack PC for a stop.

**Pretextual stops are generally valid.

Question 45

“Question first, warn later” schemes are when police

Answer 45

question first, then give Miranda warnings, and then get a voluntary confession. Point is to coerce D into thinking he’s already said enough to incriminate himself, so why not confess again.

This is only a violation if the scheme was an intentional attempt to circumvent Miranda.

Question 46

A warrant must be precise on its face, meaning it must describe with reasonable precision the

Answer 46

(1) place to be searched and

(2) items to be seized

Question 47

Generally police executing a warrant must _____ and announce their presence and wait a reasonable amount of time for their admittance, but violations of the “_____” rule ______ result in the suppression of evidence.

Answer 47

knock;
knock;
will not

Question 48

The police ____ make an inventory search of an arrestee’s belongings or of an impounded vehicle.

Answer 48

may

Question 49

A search by public school officials is reasonable if

Answer 49

(1) it offers a MODERATE CHANCE of finding evidence;
(2) the method is REASONABLY RELATED to the objectives of the search; and
(3) the search is not EXCESSIVELY INTRUSIVE in light of the age and sex of the student and nature of the infraction

Question 50

To support a warrant, an affidavit based on an informer’s tip must meet the ____________ test.

Answer 50

totality of the circumstances.

Question 51

A police officer’s good faith reliance on an invalid warrant validates a search unless

Answer 51

no reasonable police officer would have believed the warrant was valid.

Question 52

In order to prove that a search warrant was invalid, the defendant must show that

Answer 52

(1) a FALSE STATEMENT was made by the affiant of the affidavit supporting the warrant;
(2) the affiant INTENTIONALLY OR RECKLESSLY included the false statement; and
(3) the false statement was MATERIAL to finding probable cause