Criminal Procedure Flashcards
4th: Investigatory Detentions (Terry Stop)
A person is legally detained if a reasonable person would not feel free to leave. Police may detain a person based on reasonable suspicion supported by articulable facts of criminal activity. This is more than a mere hunch but less than probable cause based on the totality of the circumstances. Here,
4th: Terry Stop - Duration and Scope
A detention should last no longer than required to confirm or dispel the reasonable suspicion. If the detention is unreasonably long, or if the person is transported to station, then the detention becomes an arrest requiring probable cause. Here,
4th: Terry Stop - Frisk
After a reasonable detention based on an articulable suspicion the person is armed and dangerous, police may conduct a protective frisk for the limited purpose of discovering weapons. This is limited to a pat down of outer clothing with no manipulation, followed by reaching into pockets if pat down reveals weapons. Here,
4th: Arrest
An arrest is a seizure of the person, and it must be supported by probable cause. Probable cause exists if a reasonable person would believe there is a fair probability the person committed a crime. The charged offense does NOT need to match the probable cause for arrest. An unlawful arrest is not a defense to the charged offense, but incriminating evidence may be excluded. Here,
4th: Arrest - Home Arrest
Generally, no arrest warrant is required to arrest a person outside his home on suspicion of a felony, or if a misdemeanor occurred in the officer’s presence. However, arresting a person in his home requires a warrant unless an exception applies. Officers must knock and announce unless exigency or futile. Arresting a person in the home of a third party requires a search warrant for that home. Here,
4th: Search and Seizure
4th A protects citizens against unreasonable searches and seizures. The 4th A is applicable to the states via the Due Process Clause of the 14th A. A person has standing under the 4A if there is Government conduct and the D had a reasonable expectation of privacy.
4th: Search and Seizure - Governmental Conduct
D must show that the police/government or someone acting at the behest of the government were involved in the search and seizure. Here,
4th: Search and Seizure - Reasonable Expectation of Privacy
D must show he had an ownership or a possessory interest in the place searched or the items seized, i.e. D’s own privacy must be invaded, not the rights of a 3rd party. There is a strong REP in a person’s home, moderate REP as houseguest, and no REP as commercial user or as an auto passenger. However, things held out to the public carry no protections, i.e. voice/handwriting, open fields, airspace, bank records, garbage, odors, and automobiles. Here,
4th: Search and Seizure - REP Electronic Surveillance
Wiretapping or eavesdropping is a “search” under the 4th A and requires a warrant, as is using technology not available to the general public. However, all speakers assume the risk that a person they are speaking with is wired. Here,
4th: Warrant Requirement
Searches require a warrant unless a warrant exception applies. A valid warrant must be 1) issued by neutral and detached magistrate 2) based on probable cause stated with 3) particularity and 4) be properly executed. An invalid warrant may be saved by the Good Faith Exception. Here,
4th: Warrant Requirement - Probable Cause
Probable cause for a warrant exists if a reasonable person would believe there is a fair probability that contraband or evidence of a crime will be found in the area searched. Here,
4th: Warrant Requirement - Probable Cause - Informant Tip
If probable cause is based on an informant tip, the judge must look at the totality of the circumstances, including the credibility and basis of knowledge of the informant. Anonymous tips are insufficient unless supported by indicia of reliability. Here,
4th: Warrant Requirement - Particularity
The warrant must state the area to be searched and the items to be seized. Here,
4th: Warrant Requirement - Execution
Execution of the warrant must comply with the warrant particularities, avoid undue delay, and comply with knock and announce. A search warrant carries an implied authority to detain people in immediate vicinity of the search, but these people cannot be searched unless incident to lawful arrest. Here,
4th: Warrant Requirement - Good Faith Exception
Evidence obtained with a defective warrant will NOT be excluded if the police demonstrate good faith reliance. If warrant is egregiously lacking probable cause, particularity, or shows clear bias then the good faith burden will not be met. Here,
4th: Warrant Exception - ESCAPIST
If the G does not have a warrant then all evidence will be deemed inadmissible unless an exception to the warrant applies and G can show probable cause. Here, the G did NOT use a warrant when they…
4th: Warrant Exception - Exigent Circumstances
An exception to the warrant requirement applies when police are acting in an emergency, in hot pursuit, or if evidence is evanescent (fleeting) in nature. Here,
4th: Warrant Exception - Exigent - Emergency
Police may enter premises or seize evidence without a warrant to address emergencies that could affect health and safety. Here,
4th: Warrant Exception - Exigent - Hot Pursuit
Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the subject into a private dwelling. Must be within a reasonable time frame, i.e. 15 minutes after felon entered house? Here,
4th: Warrant Exception - Exigent - Evanescent Evidence
Police may seize without a warrant evidence likely to disappear before a warrant can be obtained. Here,
4th: Warrant Exception - Search Incident to a Lawful Arreset
Upon a lawful arrest based on probable cause, the police may contemporaneously search a person (protective sweep) and the area in his immediate control (wingspan). This is allowed for officer safety and for the need to preserve evidence. Phones/computers are generally protected from searches without a warrant. Here,
4th: Warrant Exception - Automobile Arrest Search
If an arrestee is 1) unsecured, OR 2) police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle, then police may search only the interior of the car. Here,
Watch for handcuffed in back of squad car trap. Can’t search vehicle.
4th: Warrant Exception - Consent
A warrantless search is valid if the police have voluntary and intelligent consent. Police are not required to inform people of their right to deny consent. A person with apparent authority to grant consent (e.g. roommate) may consent and evidence may be used against others. The person granting consent has the right to define the scope of the consent. Here,
4th: Warrant Exception - Automobile Exception
Due to mobility, autos have a reduced expectation of privacy and police can search the entire vehicle, without a warrant, if police have probable cause to believe the vehicle contains evidence of a crime. The search must be limited to the extent of the PC basis, e.g. can’t search glove box looking for rifle. Here,
4th: Warrant Exception - Plain View
Police may seize, but not search, evidence 1) in plain view 2) while the police are lawfully positioned, and 3) it is immediately apparent the item is contraband without manipulation. Courts have extended this doctrine to include places seen by visual aids such as binoculars, but not high-tech instruments unavailable to the general public. Here,
4th: Warrant Exception - Inventory/Impound
After a valid arrest, police can search an arrestee’s personal belonging (inventory) and entire vehicle (impound)) to discover evidence and protect owner against police misconduct. Here,
4th: Warrant Exception - Special Needs/Administrative
No warrant is required for searches of certain industries, public schools, and government officials. Here,
4th: Warrant Exception - Administrative
Highly regulated businesses such as restaurants, airlines, bun stores, casinos, dangerous industries, certain employee drug tests, etc. can be searched without a warrant due to the public’s interest in safety and close monitoring. Here,
4th: Warrant Exception - Public School
Searches by public school officials require only reasonable grounds for the search, meaning a moderate chance of finding evidence of wrongdoing and the search is not excessively intrusive. Drug testing is allowed for any extracurricular activities. Here,
4th: Warrant Exception - Terry Stop and Frisk
Police may detain a person based on reasonable suspicion supported by articulable facts of criminal activity. This is more than a mere hunch but less than probable cause based on the totality of the circumstances. Here,
4th: Warrant Exception - Terry Stop and Frisk - Duration and Scope
A detention should last no longer than required to confirm or dispel the reasonable suspicion. If the detention is unreasonably long, or if the person is transported to station, then the detention becomes an arrest requiring probable cause. Here,
4th: Warrant Exception - Terry Stop and Frisk - FRISK
After a reasonable detention based on an articulable suspicion the person is armed and dangerous, the police may conduct a protective frisk for the limited purpose of discovering weapons. This is limited to a pat down of outer clothing with no manipulation, followed by reaching into pockets if pat down reveals weapons. Here,
4th: Warrant Exception - Terry Frisk - Automobiles
If the auto is properly stopped for a traffic violation the officer may conduct a limited search of the auto’s interior for weapons if there is a reasonable suspicion the occupants are armed and dangerous. Here,
4th: Warrant Exception - Terry Frisk - Police Checkpoints
Police are allowed to set up roadblocks to stop cars without individual suspicion so long as the police stop cars in a neutral manner and it is designed to serve a legitimate purpose. Here,
5th: Miranda
Under Miranda, a D must be advised of his constitutional rights to silence and to counsel prior to any custodial interrogation. If a D invokes her rights, the police must cease all questions immediately. A D can expressly waive her Miranda rights, or by implication if she beings answering questions after receiving the Miranda warning. Here,
5th: Miranda - Custody
Under the freedom of movement test, legal custody exists if a reasonable person under the circumstances would not feel free to leave. Courts will then look to whether the setting, duration, or manner of police questioning created a coercive police environment. Traffic stops and a jail cell are NOT usually custodial. Here,
5th: Miranda - Interrogation
Interrogation is not just express questioning, but also any words or conduct that is likely to elicit an incriminating response. However, spontaneous statements by a D are admissible even without a Miranda warning. Here,
5th: Miranda - Right to Silence
D must unambiguously assert the right to silence prior to or during interrogation. Failure to respond does not invoke the right. Once asserted, all questioning related to the particular crime must stop. Here,
5th: Miranda - Right to an Attorney
D must unambiguously assert the right to counsel prior to or during interrogation. Once asserted, all questions related to any crime must stop and cannot resume for 14 days unless an attorney is provided, OR the D initiates further questioning. Here,
14th: Involuntary? (Always raise if you raise a 5A confession issue)
Involuntary confessions are not admissible, even for impeachment purposes. A statement will be involuntary if it is the result of coercion by the police based on the totality of the circumstances, including the setting, duration, and manner of the interrogation and the D’s age, intelligence, and mental/physical condition. Here,
Miranda Exceptions
Generally, evidence obtained in violation of Miranda Rights is inadmissible. However, exceptions apply in the following situations.
Miranda Exceptions: Spontaneous Statements
If the D spontaneously makes an admission prior to Miranda warnings this will be admissible. Here,
Miranda Exceptions: Public Safety
Police interrogation reasonably prompted by a concern for public safety is allowed and responses may be used in court. Here,
Miranda Exceptions: Physical Evidence
If a Miranda violation occurs, but the detainee gives non-testimonial evidence, e.g. the location of a gun, then this evidence is admissible if the Miranda warning violation was not purposeful. Here,
Miranda Exceptions: Impeachment
Miranda violation evidence that is inadmissible substantively against D can be used to for impeachment purposes. Here,
5th: Double Jeopardy (Only Criminal Trial)
Under the 5th A, a D cannot be retried for the same criminal offense once jeopardy has attached (jury sworn). However, hung juries and mistrials, and appeals do not count for jeopardy purposes. Double Jeopardy only applies to trials in the same sovereign, so a criminal can be tried in both state and federal court. Here,
6th: Right to Attorney
After formal charges are filed, D has a right to an attorney present at all critical stages of criminal prosecutions. Non-critical stages include blood, handwriting, and voice samples, photo lineups, brief recess in trial, parole proceedings, and post-conviction proceedings.
However, the 6A right to an attorney is offense specific, so police may ask D about any other crimes without attorney presences. Unlike 5A attorney protection, 6A rights apply regardless of whether D is talking to police or informant. here,
Waiver of this right must be made knowingly and voluntarily but does not require attorney presence. Here,
6th: Ineffective Assistance of Counsel
An ineffective assistance of counsel claimant must show deficient performance by counsel and that but for such a deficiency, the result of the proceeding would have been different. Here,
6th: Confrontation Clause
The 6th A gives D the right to confront adverse witness and have those witnesses testify in person and subject to cross examination. However, this is NOT an absolute right, in person testimony is not required if : 1) exclusion is necessary for public policy, or 2) the reliability of the testimony is otherwise assured. Here,
6th: Right to a Speedy Jury Trial
The right to a jury trial is ONLY for serious offenses that could result in jail time over 6 months. The minimum number of jurors is 6. The 6th A guarantees D the right to speedy trial. To determine if this right has been violated, the court will look at the following factors: 1) length of delay, 2) reason for delay, 3) whether D asserted his right to a speedy trial, 4) whether the delay has prejudiced D. Here,
Exclusionary Rule
Evidence obtained in violation of the 4A, 5A, or 6A rights is inadmissible at trial (admissible for Grand Jury). Further, all subsequent evidence obtained or derived from excluded evidence is considered tainted as “fruits of the poisonous tree” and also inadmissible. However, fruits derived from a violation of Miranda are not excluded. Here,
In applying the exclusionary rule, the courts must balance the purpose of deterring police misconduct with the social cost of excluding relevant evidence. Therefore, exclusion of tainted evidence, including fruit of the poisonous tree, is not automatic. Here,
Exclusionary Rule: Non-Criminal Case Exception
The exclusionary rule does not apply to civil cases, grand jury, or parole proceedings. Excluded evidence can be used for impeachment purposes in a criminal trial. Here,
Exclusionary Rule: Inevitable Discovery
Evidence is admissible if the police would have found the evidence regardless of an illegal search. Here,
Exclusionary Rule: Independent Source
Evidence is admissible if prosecution can show that it was obtained from a source truly independent of the original illegality (i.e. tainted evidence). Here,
Exclusionary Rule: Intervening Act of Free Will
Evidence is admissible if the defendant breaks the causal chain between the evidence and the original illegality through an intervening act of free will. Here,
Exclusionary Rule: Harmless Error
If illegal evidence is submitted, a conviction will not necessarily be overturned on appeal if the court can show the error was harmless and the conviction would have occurred despite the illegal evidence. Here.
8th: Cruel and Unusual Punishment
Under 8A, all punishment must be proportionate to the offense, or it is classified as cruel and unusual. Here,
8th: Death Penalty
Death penalties are not per se “cruel and unusual” however, the jury must be allowed to consider mitigating evidence as well as the impact on the victim’s family and a statute cannot automatically impose the death penalty> Here,
The death penalty cannot be imposed if: 1) D was under 18, 2) D was mentally disabled, 3) D was insane, or 4) the conviction was for felony murder and D was not a major participant or did not act with depraved indifference to human life. Here,
8th: Bail
Bail generally cannot be higher than what is necessary to assure the D’s appearance at trial. Here,
14th Amendment
The 14th A requires the G prove guilty beyond a reasonable doubt in ALL criminal cases. This burden is ALWAYS on the prosecution and cannot be shifted to the D to prove that he is not guilty. Here,
14th: Plea Bargain NPRW
The judge must determine that the plea is voluntary and intelligently made, in that he must ensure that D understands: 1) nature of the charge, 2) maximum penalty, 3) that D has right to plead not guilty and 4) D is waiving his right to a jury trial. Here,
14th: Suggestive Identifications
Courts will weigh the reliability of an identification against its potential corrupting effect. An unconstitutional identification excludes an in-court identification unless there is an independent source. Here,
