Criminal Procedure

Question 1

Exclusionary rule

Answer 1

Prevents introduction at a subsequent criminal trial of evidence unlawfully seized

Question 2

Seizure

Answer 2

When the police, by means of physical force or a show of authority, restrain the defendant’s freedom of movement and the defendant actually submits

Ambiguous intent to restrain – determine whether a reasonable person would feel free to terminate the encounter

Question 3

Arrest warrant

Answer 3

Issued by a detached/neutral magistrate upon finding of probable cause (PC) and describe with particularity the defendant and the crime; deficient warrant does not invalidate arrest as long as there was PC

Not required to arrest someone in a public place

Question 4

Search warrant

Answer 4

Issued by detached/neutral magistrate upon finding of PC, supported by oath or affidavit, and must describe with particularity the places to be searched and items to be seized

Need a search warrant, in addition to an arrest warrant, to arrest a suspect in another person’s home

Question 5

Knock and announce rule

Answer 5

Police must generally announce purpose when executing a warrant (unless state allows exception for exigent circumstances)
- Violation does not trigger ER

Question 6

Search and seizure

Answer 6

Need government conduct + reasonable expectation of privacy or physical intrusion into protected area

• Home, private room, or office – home and curtilage, motel rooms, and business premises are protected; use of drug-sniffing dog is search if physically intrudes onto constitutionally protected property
• Luggage – REP for invasive searches but not for canine sniff
• Automobiles – need RS of law violation to effectuate a stop, and PC for pre-textual stops when traffic law violated to investigate whether another law has been violated
• Open areas – outside curtilage; no REP
• Odor from car – no REP
• Abandoned property (e.g., garbage set curbside) – no REP
• Conversations with government informants – no REP
• Inspection at least 400 feet in the air – no REP
• Technological device – attaching to person without consent is search; physically intruding on property to install a device may be search; use of sense-enhancing devices not used by general public is search
• Misdemeanor arrest – if punishable only by a fine, then not an unreasonable seizure and can be made without a warrant

Question 7

Search incident to arrest

Answer 7

Must be reasonable in scope and incident to a lawful arrest

• Wingspan – includes search of person/immediate surrounding area (but NOT cell phone)
• Home – closets/other spaces immediately adjoining place of arrest in home from which an attack could be launched
• Vehicle – arrestee is within reaching distance of passenger compartment OR reasonable that evidence of the offense might be found in vehicle

Question 8

Exigent circumstances

Answer 8

• Totality of the circumstances test – PC + exigent circumstances
• May not be created by police with threats or conduct the violates the Fourth Amendment

Two types

1. Hot pursuit – can seize “mere” evidence (not fruits or instrumentalities) from private building if have PC to believe the suspect committed a felony
2. Emergency – reasonable apprehension that delay in getting warrant would result in immediate danger of evidence destruction, safety, or fleeing felon

Question 9

Stop and frisk

Answer 9

Stop – reasonable suspicion based on articulable facts that detainees involved in criminal activity and is limited temporary intrusion on defendant’s freedom of movement

Frisk – officer without PC may pay down person’s outer clothing if officer has RS that suspect was/is involve in criminal activity and frisk is necessary for safety

• “Plain feel” exception – criminal nature must be immediately obvious
• Passenger compartment – permitted if police have reasonable belief suspect is dangerous and may get immediate control of weapons, and search is limited to place where weapons could be hidden

Question 10

Automobile exception

Answer 10

Can search any part of car (compartments, containers, trunk, exc.) if PC that it contains contraband/evidence of crime

Question 11

“Plain view” doctrine

Answer 11

If officer in premises for lawful purpose, and incriminating nature of item is immediately apparent, then officer has lawful access to item

Question 12

Consent

Answer 12

• Eliminates the need for PC or a search warrant
• Must be given voluntarily
• Third-party consent – cannot consent to search of defendant’s property over the objections of a present third party
  a. If the police reasonably believe the TP has the authority to consent but she does not, such consent may still be valid

Question 13

Standing

Answer 13

Defendant must show a REP with regard to search/seizure

Question 14

Fruit of the poisonous tree

Answer 14

Applies not only to evidence initially seized as a result of government illegality but also to secondary derivative evidence resulting from primary taint

Question 15

Inevitable discovery

Answer 15

The prosecution can prove that the evidence would have been inevitably discovered in the same condition through lawful means

Question 16

Independent source

Answer 16

The evidence was discovered in part by an independent source unrelated to the tainted evidence

Question 17

Attenuation

Answer 17

The chain of causation between the primary taint and the evidence has been so attenuated as to “purge” the taint.

Question 18

Good faith

Answer 18

Applies to police relying in objective good faith on either facially valid warrant later found invalid or existing law later held unconstitutional

Does not apply if no reasonable officer would rely on the affidavit underlying the warrant

Question 19

Isolated police negligence

Answer 19

Not enough to trigger the ER; must be sufficiently deliberate that exclusion can meaningfully deter it

Question 20

Privilege against self-incrimination

Answer 20

No person can be compelled to testify against himself in criminal or civil case
- Non-testimonial physical evidence not protected

Question 21

Miranda

Answer 21

Any incriminating statement obtained as a result of custodial interrogation may not be used against suspect at subsequent trial unless police inform him of Miranda rights

• Custodial – substantial seizure
• Interrogation – questioning or words/actions reasonably likely to elicit an incriminating response

Confessions must be voluntary – considered involuntary only if the police coerced the defendant into making the confession

Warning must be given before interrogation begins

Defendant must make specific, unambiguous statement asserting his desire to either have counsel present or remain silent and all interrogation must then stop unless defendant voluntarily initiates communication with police or there is a 14-day break in custody and fresh Miranda warnings given

• Exceptions: public safety, routine booking questions, undercover police
• To waive right to silence, must be knowingly and intelligently (silence insufficient)

Even if the defendant does not assert his right to counsel, his Miranda rights may still be violated if counsel tries to gain access to him while he is in custody but before he has waived his rights and the police deny such access

Question 22

Right to counsel (Sixth Amendment)

Answer 22

Any case in which actual/suspended incarceration is imposed

• Automatically attaches when state initiates prosecution with indictment/formal charge, applies at all critical stages, and ends at sentencing stage
• Presence of counsel only applies to interrogations about offense charged
• If police use an informant to intentionally create a situation likely to induce D to make incriminating statements about the charged offense, then that informant is deemed an agent of the police, and any statements made will be inadmissible

Question 23

Ineffective assistance of counsel

Answer 23

To prove ineffective assistance, claimant must show

• Counsel’s representation fell below objective standard of reasonableness; and
• Counsel’s deficient performance prejudiced defendant, resulting in unfair/unreliable outcome

**HIGH BURDEN

Question 24

Lineups

Answer 24

• Sixth Amendment right to counsel at post-indictment lineups; no right at pre- or post-indictment photo array
• Inadmissible if violated but witness can ID defendant at trial if ID had independent reliability

Question 25

Right to jury trial

Answer 25

Defendant has a right to jury trial in criminal cases for non-petty offenses (i.e., authorized sentence of more than six months imprisonment)

• Jury cannot have less than six members (denial of DP)
• FRCP – verdict of 11 is permitted if the 12th juror is excused for good cause after deliberations begin

Question 26

Peremptory challenge

Answer 26

Fourteenth Amendment prohibits challenges solely based on race/gender

Question 27

Sentencing enhancement

Answer 27

Any fact (other than prior conviction) that can be used to increase statutorily prescribed maximum must be charged in indictment, submitted to jury, and established beyond a reasonable doubt

Question 28

Double jeopardy

Answer 28

Protects against second prosecution for same offense after acquittal/conviction and against multiple punishments for the same offense

• Attaches as soon as jury is sworn in or, if bench trial, when first witness is sworn in
• Generally bars successive prosecutions for greater/lesser included offenses
• BUT, can be charged/convicted in federal and state court or in criminal and civil case

Question 29

Checkpoints

Answer 29

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles

Checkpoints for sobriety checks OK, for drug checks not OK

Question 30

Fruits of a tainted confession

Answer 30

Derivative physical evidence obtained as a result of a non-Mirandized confession (i.e., a confession that is inadmissible due to the police’s failure to give Miranda warnings) is admissible, so long as that confession was not coerced