Criminal Procedure Flashcards
What seizure is subject to Fourth Amendment Protection?
Any exercise of control by a government agent over a person or thing
Do all arrests require probable cause?
Yes
What is probable cause?
Reasonably prudent person would believe that a suspect has committed or is in the process of committing a crime
When does an arrest require a warrant?
Public: Not required
Emergency: Not required
Private Home: Required
Do police need probable cause to compel you to come to the police station for fingerprinting and questioning?
Yes
What is a Terry Stop?
Police can detain someone based on reasonable suspicion and articulable facts. (If based on informant’s tip, then there must be indicia of reliability)
When can police make a traffic stop?
When they have a reasonable suspicion that a law has been, or is being, violated.
Does stopping a car constitute a seizure?
Yes, of everyone in the car
Is a drug sniffing dog test an illegal search?
No, it is not a search, and the sniff test can be the basis for probable cause.
What is the framework question for search and seizure fact patterns in the essay?
Does Defendant have a 4th Amend right because there was a search or seizure concerning a place or thing in which the Defendant had a reasonable expectation of privacy? Or does the search involve the physical intrusion of a constitutionally protected area?
What is the framework question for search warrant fact patterns in the essay?
Did the police officer have a valid warrant showing probable cause that was reasonably precise as to the place to be searched and items to be seized? If not, do they satisfy a warrantless search exception?
What actors constitute the government for purposes of the 4th Amend?
- public police
- private individual acting on behalf of police
- private police, if they are deputized
How do you determine if a Fourth Amendment claimant has standing?
You have to determine if they have a reasonable expectation of privacy in the person or thing searched or seized
What do courts consider in determining whether a person has a reasonable expectation of privacy?
totality of the circumstances
What are the three places of automatic standing / where person is guaranteed to have expectation of privacy?
- Owns the premises
- Lives on the premises
- overnight guest in the premises
What are the 8 things you have NO reasonable expectation of privacy in?
Voice // Handwriting // Paint on your car // bank account records // Areas outside the home and related buildings (e.g., barn) // Garbage at the curb // land visible from public (even plane) // smell of one’s car and luggage
What do you need for a search warrant?
Probable cause
How do you show probable cause for a search warrant?
- Fair probability of finding contraband
2. state with particularity the place to be searched the things to be seized
What is the constitutional arrest rule?
No search warrant necessary for an arrest made contemporaneously with a constitutional arrest. (Doesn’t have to be simultaneous)
What is the rule of inventory search?
Ok to take an inventory of a person that has been arrested
What is the automobile exception to search warrant requirement?
Police may search a car if they believe it contains contraband or evidence of a crime. They may also search containers in the car that may contain evidence of a crime. But can’t search a container smaller than the thing they’re hunting for.
What are the 9 exceptions to warrant requirement?
Constitutional Arrest // Automobile // Plain View // Voluntary Consent // Stop and Frisk // Hot Pursuit // Public School // Opening Int’l Mail // Wiretapping and Eavesdropping
What is required to conduct a stop and frisk? What are the limits?
Don’t need probable cause. Only need articulable and reasonable suspicion. Frisk is limited to a patdown, and police can’t manipulate objects to figure out what they are.
What are the three things you have to analyze in a confession essay?
For a confession to be admissible, you must test whether it is within the boundaries of the 14th Amend, the 6th Amend and the 5th Amend.
What does 14th Amend require of a confession?
Must be voluntary
What does 6th Amend require with respect to confession?
Right to counsel
What does the 5th Amend require with respect to a confession?
Miranda warnings
What does the sixth amendment right to counsel require?
Defendant is entitled to counsel for all critical stages of a prosecution AFTER formal proceedings have begun.
What are the critical stages that require sixth amendment counsel?
Post-Indictment Interrogation // Preliminary hearing to determine probable cause // Arraignment // Post-charge lineups // Sentencing // Felony Trials
What is the remedy for a violation of sixth amendment right to counsel?
Automatic reversal of conviction
What’s a major problem in pre-trial identification?
Unnecessarily suggestive pre-trial identification techniques violate due process if the are substantially likely to produce a misidentification
What is the general rule of miranda?
For an admission or confession given while in custody to be admissible within the bounds of the 5th amend, a person must be given Miranda warnings
Miranda - what constitutes custody?
Reasonable person wouldn’t feel free to leave
Miranda - what constitutes an interrogation?
any conduct police knew or should have known might elicit an incriminating response
How must you invoke right to remain silent or right to counsel?
Must do so affirmatively!
What is the consequence of a Miranda violation?
Evidence is typically not admissible, except to impeach D’s testimony (or if nec’y for public safety)
What is the doctrine governing whether you can admit evidence obtained in violation of 4th, 5th, or 6th Amendments?
Fruit of the Poisonous Tree
What is excluded from evidence under the fruit of the poisonous tree doctrine?
typically any evidence, but NOT evidence:
- Statements obtained in violation of miranda
- From violations of knock and announce rule
- From independent source
- Only remotely connected to the unconstitutional conduct
- Would inevitably have been discovered
Is fruit of the poisonous tree rule applicable to all proceedings?
No, doesn’t apply to:
- Grand jury proceedings
- civil proceedings
- parole revocation proceedings
What is prosecutor’s duty before trial?
Disclose exculpatory evidence?
When does person have right to trial by jury? That is, what kind of charge? What is minimum number of jurors?
- When maximum sentence for charge exceeds 6 months.
- 6 jurors
What is your right with respect to a jury pool?
The POOL must reflect a fair cross section of the community
When should juror be excluded for cause?
Anything would substantiality impair their impartiality
What is required to legitimate a waiver of your right to counsel?
Waiver must be knowing, competent, and intelligent
What is required to show ineffective assistance of counsel?
- Specific allegations
- Counsel was ineffective
- But for performance, reason to believe trial would have turned out differently
What right do you have to confront witnesses?
Confrontation clause gives right to confront witnesses. Exception if denying the right serves an important public purpose – classic example is child accuser in child abuse case
What is the rule of double jeopardy?
Under the 5th amendment, a person may not be retried for the same offense once jeopardy has attached. Jeopardy attaches at a jury trial when a jury is sworn in, and at a bench trial when the first witness is called
What are the four exceptions to double jeopardy rule?
- retrial after hung jury
- original trial aborted for “manifest necessity”
- after successful appeal
- defendant breaches plea bargain
What constitutes the “same offense” for purposes of double jeopardy?
- Two crimes are the same offense - unless each crime requires proof of an additional element
- Lesser offenses are included
Who government does the double jeopardy rule apply to?
Only to the same sovereign
Who can assert 5th amendment right against self-incrimination?
Only natural persons
What is the scope of the 5th amendment right against self-incrimination?
Protects citizens against Compelled testimony - not things like DNA and blood evidence
What are the limits on the 5th amendment right against self-incrimination?
- grant of immunity
- no possibility of incrimination
- waiver by taking the stand
