Criminal Procedure

Question 1

When does probable cause exist?

Answer 1

Probable cause exists when a reasonably prudent person would believe that a suspect has committed or is committing a crime.

Question 2

Requirements for a Valid Arrest

Answer 2

Any arrest must be based on probable cause.

Arrest warrants are generally not required before arresting someone in a public space.

A non-emergency arrest of an individual in their home does require an arrest warrant.

Question 3

Effect of an Invalid Arrest

Answer 3

An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution.

Question 4

Terry Stop Rules

Answer 4

The police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make such a stop, they must have a reasonable suspicion supported by articulable facts of criminal activity.

Reasonable suspicion is more than just vague suspicion and less than probable cause. Whether or not police have it depends on a totality of the circumstances.

Question 5

Rules for Relying on Information from Informants

Answer 5

When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability to be sufficient.

Question 6

Automobile Stops

Answer 6

The police may not normally stop a car unless that have at least reasonable suspicion that the law has been violated. An automobile stop constitutes a seizure of all occupants. Officer may order occupants out of the car.

During a routine traffic stop, a dog sniff is not a search so long as the police do not extend the stop longer than is necessary to issue a ticket or conduct normal inquiries. An alert by a dog may be the basis for a probable cause search.

Roadblocks that do not see incriminating information are constitutional (i.e. border crossings, weigh stations, etc.)

An officer’s pretextual reason for stopping a car is irrelevant so long as the stop was legal.

Question 7

Drug Sniffing Dogs

Answer 7

Not a search of a car and may be the basis of probable cause.

Cannot be used outside a suspect’s home.

Question 8

Who falls under the purview of “government” for government conduct?

Answer 8

The publically paid police, regardless of whether on or off duty.

Any private individual acting at the direction of public police.

Privately paid police (store security, subdivision police, campus police, etc.) are not government unless they are deputized with the power to arrest.

Question 9

Standing to Object to a Search

Answer 9

In order to object to a governmental search, one must have standing to object to the search, meaning they must have ah d a reasonable expectation of privacy in the area or item being searched.

Question 10

Automatic Categories of Standing

Answer 10

Ownership of the place searched
If you live on the premises searched.
Overnight guests of the place being searched.

Ownership of the physical property searched, only if you have a reasonable expectation of privacy.

Question 11

No Standing Categories

Answer 11

You have no expecation of privacy and therefore no standing to challenge anything you hold out to the public every day. These include:

The sound of your voice
The style of your handwriting
The paint on the outisde of your car
Account records held by a bank.
Monitoring the location of your car on the public street or in your driveway.
Anything seen in open fields
Anything seen from public air space
The odors eminating from your luggage or car.
Your garbage set out on the CURB for collection.

Question 12

Warrant Requirements

Answer 12

Probable Cause: Meaning a fair probablility that contraband or evidence of a crime will be found in the area searched.

Particularity: The warrant must state with particularity the place to be searched and the items to be seized.

The warrant may be anticipatory, meaning it can request to search an area for items even if the officers do not blieve the items are currently there, so long as they have probable cause to believe they will be there are the time searched.

A warrant cannot be solely based on an anonymous tip. Whether or not an informant is enough for proable cause will depend on the totality of the circumstancs, the informants credibility and knowledge.

Question 13

Search Incident to Arrest

Answer 13

The arrest be lawful, otherwise the search will be unlawful.

The arrest and search must be contemporanious as to time and place.

The scope is limitted to the person and the areas within the person’s wingspan.

With automobiles, they may search the interior of a car icnident to arrest if the arrestee is unsecured and may reutrn to the vehicle or if the police reasonably believe that evidence of the offense FOR WHICH THE PERSON WAS ARRESTED, may be found in the vehicle.

Question 14

Cell Phones

Answer 14

Police may not seach digital information of a cell phone during a search incident to arrest must the physical attributes of the phone may be searched (i.e. taking it apart to check for drugs).

Question 15

Automobile Exception to Warrants

Answer 15

If the police have probable cause, they may search anything or anybody in the entire car, including the trunk and any packages or luggage inside so long as they could reasonable contain the item.

This probable cause can arise after the car is stopped but must arise before anyone or anything is searched.

Question 16

Plain View

Answer 16

A police officer who is legitimately present at a location and views an item that immediately apparent as contraband or fruit of a crime may seize it.

Question 17

Consent

Answer 17

For consent to be valid it must be voluntary.

Where two or more people have a right to use a piece of property, either can consent to a search. If one person consents and the other objects, police may not search. However, if the co-occupant who objects leaves voluntarilly or is removed lawfully (i.e. arrested) the remaining party may still consent and the search will be valid.

Also, anyone with apparent authority can validly consent to a governmental search.

Question 18

Stop and Frisk

Answer 18

A Terry stop is a brief detention for the purpose of investigating suspicious conduct and the legal standard is reasonable suspicion. The pat down of the outer clothes is merely to check for weapons, although immediately recognized contraband can be seized, and if an arrest is made, a lawful search incident to arrest may follow.

If an officer reasonably blieve a person may be armed an dangerous during a traffic stop, they may conduct a frisk of the person and they may search the limitted areas of the vehicle in which a weapon may be placed.

Question 19

Evanscent Evidence

Answer 19

Evanescent evidence is evidence that might dissapear quickly if police took the time to get a warrant.

Blood samples in DUI cases must get a warrant if its at all practical to do so.

A police officer can scrape under a suspects fingernails without a warrant because otherwise the defendant might wash his hands.

Question 20

Hot Pursuit

Answer 20

If the police are within 15 minutes behind the fleeing felon, it is hot pursuit. Otherwise, its too late.

If they are truly within hot pursuit, they can enter anyone’s home without a warrant and any evidence in plain view will be admissable.

Question 21

Inventory Searches

Answer 21

Before incarceration of an arrestee, the police may search the arrestees personal belongings and the arrestees entire vehicle including any closed containers.

Question 22

Emergency Aid/Community Caretaker Exception

Answer 22

Justifies a warrantless search if the officer faces an emergency that threated the health or safety of an individual or the public.

Question 23

Public School Searches

Answer 23

Public school children engaged in extracurricular activities (including school dances) can be randomly drug tested.

Warrantless searchs of childrens effects are premissible to investigate violations of school rules.

A school search will be held reasonable if it offers a moderate chance of finding evidence, the measure adopted are reasonably related to the objectives of the search, and the search is not excessively intrusive.

Question 24

Opening International Mail

Answer 24

Possible border searches include the opening of international mail when there is reasonable cause to belive the mail contains contraband.

Question 25

Wiretapping and Eavesdropping

Answer 25

Generally wiretapping and eavesdropping require a warrant.

The two exceptions to eavesdropping are the unrealiable ear and the uninvited ear.

Question 26

The Unreliable Ear Exception to Eavesdropping

Answer 26

Everybody in society assumes the risk that the person they are speaking to is wearing a wire.

Question 27

The Uninvited Ear Exception to Eavesdropping

Answer 27

A speaker has no Fourth Ammendment right to object to eavesdropping if she makes no attempt to keep a conversation private.

Question 28

Shocking Materials

Answer 28

Any act that schocks the conscious and is used to obtain evidence is unconstituional. If the crim eis induced by official actions that schocks the conscionce, any conviction stemming therefrom is unconstitutional.

Question 29

Voluntariness of Confessions

Answer 29

Any confession must be voluntary for it to be admissible at trial. Voluntariness is assessed by the totality of the circumstances.

Question 30

Sixth Amendment Right to Counsel

Answer 30

Defendent is entitled to an attorney at all critical stages of the prosecution after formal proceedings have begun. Some key stages include:

Post-indictment interrogation
Preliminary Hearings
Arraignment
Post-Charge Lineups
Sentencing
Felony Trials

Stages where not applicable: taking blood, handwriting samples, pre-charge lineups, recesses during the defendant’s testimony at trial, parole and probation revocation hearings, fingerprinting, and photo identification.

Question 31

Offense Specificity of Sixth Amendment

Answer 31

The Sixth Amendment right to counsel only applies to the sepcific charge for which Defendant has retained or be given appointed counsel. Thus the defendant may be questioned on an unrelated charge even though he has counsel for a different charged crime.

Question 32

Remedy for Unconstitutional Pre-Trial Identification

Answer 32

Exclude the in-court identification of the defendant unless the government can show that it had an independent source for the in-court identification that was not tainted by the bad lineup.

Question 33

Remedy for Violation of Defendant’s Sixth Amendment Right to Counsel

Answer 33

Failure to provide counsel for a defendant at trial will result in an automatic reversal of the conviction.

However, at non-trial proceedings, the harmless error test will apply.

Question 34

Fifth Amendment Miranda Doctrine

Answer 34

Miranda warnings are required when a suspect is in custodial interrogation.

Miranda warnings only apply to interrogation by the publically paid police. They do not apply when the interrogation is by an informant that the defendant does not know is working for the police.

Question 35

Definition of “In Custody’

Answer 35

If at the time of interrogation, a reasonable person would not feel free to leave.

The court will determine whether the situation presents the same inherently coercive pressures as a station house questioning.

Determining whether one is in custody is an OBJECTIVE test.

Question 36

Defining Interrogation

Answer 36

An interrogation is defined as any conduct where the police knew or should have know that they might elicit an incriminating response from the suspect.

Question 37

Invocation vs. Waiver

Answer 37

After recieving Miranda warnings, a defendant may:

Do Nothing
Waive his Miranda Rights
Assert the Right to Remain Silent
Assert the Right to Counsel

Question 38

Invoking the RIght to Silence

Answer 38

Must be unambiguous. The police may reinitiate questioning any time after the defendant has invoked his right to remain silent if the scrupulously honor the detainee’s request. At minimum, this means they cannot badger him into speaking. The only on point case, the police waited some time, re-Mirandized the defendant, and asked him about a different crime than before.

Question 39

Invoking the Right to Counsel

Answer 39

The request for counsel can be invoked only by an unambiguous request. If the defendant does that, all questions must cease until the attorney arrives or the accused initiates questioning.

Once a detainee has requested counsel, the prohibition on questioning lasts the entire time he’s in custody and 14 day thereafter.

Question 40

Effect of Miranda Violation

Answer 40

Evidence obtained in violation of Miranda is inadmissible at trial. The only exception is that a confession obtained in violation of Miranda may be used to impeach the credibility of the defendant if he takes the stand.

Question 41

Public Safety Exception to Miranda

Answer 41

If police interrogation is reasonably prompted by a concern for public safety, responses to the questions may be used in court, even if there was a Miranda violation.

Question 42

Exclusionary Rule

Answer 42

A remedy in American constitutional procedure where when someone has been a victim of an illegal search or coerced confession can (among other remedies) have the product of that search/statement excluded from subsequent criminal prosecution.

The exclusionary rule does not apply to grand jury, civil, or probation/parole revocation proceedings. Additionally, illegally obtained evidence may still be used for impeachment of the defendant’s testimony.

Also this rule does not apply to violations of the knock and announce rule for the execution of search warrants.

Question 43

The Fruit of the Poisonous Tree

Answer 43

Excludes not only illegal obtained evidence but also all evidence that derived from the police illegality.

The fruit of the poisonous tree doctrine does not apply to Miranda violations unless the police acted in bad faith in obtaining such information.

Question 44

Government Defenses to Fruit of the Poisonous Tree or the Exclusionary Rule

Answer 44

Independent Source for the Evidence
Inevitable Discovery
Intervening Acts of Free Will on the Part of the Defendant

Question 45

Good Faith Exception

Answer 45

The general rule is that an officers good faith reliance on a warrant overcomes defects in the warrant. However, there are four exceptions.

If the warrant was so lacking in probable cause that no reasonable police officer would have relied on it.

The affadavit underlying the warrant was so lacking in particularity that no officer would have relied on it.

The police officer or prosecutor lied or misled the magistrate when seeking the warrant.

The magistrate is biased and therefore wholly abandoned his or her neutrality.

Question 46

Harmless Error Test

Answer 46

A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial. On appeal, the court will uphold a conviction if the conviction would have resulted despite the improper evidence. However, the government bears the burden of proof in showing beyond a reasonable doubt that the admission was harmless.

Question 47

Prosecutors Failure to Disclose

Answer 47

A prosecutor has a duty to disclose exculpatory information. His failure, whether willful or inadvertent, may be ground for a reversal of conviction if:

The evidence was favorable to the defendant.

Prejudice resulted, meaning there is a reasonable probability that the result would have been difference hat the information been disclosed.

Question 48

Right to Trial by Jury

Answer 48

Attaches to a serious offense, meaning the maximum authorized sentence exceeds 6 months.

The minimum number of jurors is 6. Unanimity is required for 6 but not for 9, 10, or 12.

A juror may be excused if his views would prevent or substantially impair the performance of his or her duties.

Question 49

Right to Counsel

Answer 49

Attaches in all critical stages of a prosecution.

The defendant has the right to defend himself so long as his waiver of trial counsel is knowing and intelligent and he is competent to proceed pro se.

Question 50

Ineffective Assistance of Counsel

Answer 50

There must be a deficient performance by counsel and but for that deficiency, there is a reasonable probability that the result of the proceeding would have been different. Typically, this requires the defendant to specify particular errors of trial counsel.

Question 51

Right to Confront a Witness

Answer 51

The absence of face-to-face confrontation does not violate the Sixth Amendment when preventing such a confrontation serves an imporant public purpose and the reliability of the testimony is otherwise assured.

A defendant who is disruptive may be removed from the courtroom, thereby relinquishing his right of confrontation.

Question 52

Death Penalty for Felony Murder

Answer 52

The death penalty may not be imposed for felony murder where the defendant, as an accomplice, did not take, attempt to take, or intend to take a life. However, the death penalty may be imposed when he participated in a major way in the murder and acted with reckless indifference to the value of human life.

Question 53

Double Jeopardy

Answer 53

Jeopardy attaches in a jury trial as soon as the jury is sworn in.

In a bench trial, jeopardy attaches when the first witness is sworn in.

No jeopardy attachment for civil proceedings.

Exceptions permitting retrial include hung jury, mistrials for manifest necessity, breach of plea bargain by defendant, and retrial after succesful appeal (however cannot be for a more serious offense than before).

Question 54

Blockburger Test

Answer 54

Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not.

Also, being put in jeopardy for a greater offense bars retrial of any lesser included defenses and vice versa.

Question 55

Privilege Against Self Incrimination

Answer 55

The Fifth Amendement privilege can be asserted by anyone in any type of case when the person is asked to answer a question under oath and their answer might to to incriminate them.

You must assert the privilege the first time the question is asked, otherwise you have waived your right.

Defendants who testify on the stand have waived their right.

Question 56

Grand Jury Rights

Answer 56

Defendant has no right to appear at a grand jury or to send witnesses.

A witness subpoenaed to testify at a grand jury does not have the right to Mirand warnigs or to have an attorney present.

Question 57

Essay Process for Search and Seizure

Answer 57

Is the conduct done by the government?

Does the defendant have standing (aka a reasonable expectation of privacy)?

Is there a valid warrant (including probable cause and particularity?

If warrant is bad, can the officers use good faith as a defense to save the warrant?

If no warrant, did the search or seizure fall into one of the exceptions?

Automobile, plain view, consent, stop and frisk, evanescent, hot pursuit, community caretaker, schools, inventory searches, etc.