Criminal Procedure

Question 1

Reasonable Expectation of Privacy

Answer 1

(1) Exists when there is a government intrusion into a constitutionally protected area
(2) Determined under a totality of the circumstances
(3) Person has reasonable expectation of privacy in his home or in places in which he is an overnight guest
(4) Does not exist in things held out to the public

Question 2

Standing to Challenge Search or Seizure

Answer 2

Person can complain about an evidentiary search or seizure only if it violates his/her own reasonable expectation of privacy.

Question 3

Warrant - Issuance

Answer 3

Most searches must be pursuant to a warrant:

1. Issued by a neutral and detached magistrate
2. Based on affidavits or sworn testimony setting forth facts sufficient to allow a reasonable person to believe seizable material will be on the premises when the warrant is executed (i.e., probable cause to search)
3. Judged on a totality of the circumstances

Question 4

Lawful Arrest Exception to Warrant Requirement

Answer 4

Police officers may conduct a warrantless search of a person they arrest so long as the arrest is constitutional

1. Search may extend to anywhere within arrestee’s reach (wingspan)
2. If the arrestee was the occupant of an automobile, officers may search the interior if:
   a. Arrestee is unsecured and may still gain access to the interior, or
   b. Officers reasonably believe automobile contains evidence of offense for which arrest was made

Question 5

Automobile Exception to Warrant Requirement

Answer 5

If police have probable cause to believe a car contains contraband or fruits, instrumentalities, or evidence of a crime, they may search the car without a warrant and look into any area in which the items for which they have probable cause might be found.

Question 6

Plain View Exception to Warrant Requirement

Answer 6

Officers may make a warrantless seizure when:

1. Legitimately on premises;
2. Discovers contraband or evidence, fruits, or instrumentalities of a crime;
3. In plain view;
4. Officer has probable cause to believe (that is, it is immediately apparent) item is evidence, contraband, or fruit or instrumentality of crime

Question 7

Consent Exception to Warrant Requirement

Answer 7

(1) Officers may conduct a warrantless search of premises with consent from someone with apparent right to use or occupy premises
(2) If a suspect co-occupant is present and objects, officer may not conduct the search

Question 8

Stop & Frisk Exception to Warrant Requirement

Answer 8

(1) Officer may stop a person without probable cause to arrest if officer has reasonable suspicion of criminal activity
(2) If officer also reasonably believes the person is armed and dangerous, officer may pat down the person’s outer clothing
(3) Officer may seize anything during pat down that, by its plain feel, officer believes to be a weapon or contraband

Question 9

Emergency Aid Exception to Warrant Requirement

Answer 9

(1) Officer may conduct a warrantless search when there is an emergency that may threaten health or safety and immediate action may be needed
(2) Judge objectively, from officer’s point of view

Question 10

Public School Searches

Answer 10

Search by public school officials is valid if:

1. It offers a moderate chance of finding evidence;
2. Measures adopted are reasonable related to objectives of the search; and
3. Search is not excessively intrusive

Question 11

Investigatory Detentions (Terry Stops)

Answer 11

(1) Officer may briefly detain a person for investigative purposes if officer has reasonable suspicion based on articulable facts (facts that can be explained verbally – not just a hunch) that criminal activity is afoot
(2) Reasonable suspicion judged under a totality of the circumstances
(3) If suspicion based on informer’s tip, it must be accompanied by indicia of reliability, such as predictive information

Question 12

Automobile Stops

Answer 12

(1) Stopping a car is a stop of all its occupants for 4th Amendment purposes
(2) Requires at least reasonable suspicion of criminal activity
(3) If officer has probable cause to believe traffic law was broken, stop is valid even if officer subjectively is making stop to investigate a crime for which officer lacks probable cause (pretextual stops are okay)

(4) When special law enforcement needs are involved, roadblocks can be employed if:
1. Cars are stopped on a neutral and articulable basis (e.g., every 3rd car); and
2. Roadblock is designed to pertain to a problem closely to cars and their mobility

Question 13

Probable Cause to Arrest

Answer 13

At time of arrest, officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law.

Question 14

6th Amendment Right to Counsel

Answer 14

(1) Applies at all critical stages of a prosecution
(2) Violated when officers deliberately elicit an incriminating statement from a defendant who has been charged without first obtaining a waiver of defendant’s right to have counsel present
(3) It’s offense specific, so a post-charge interrogation about a crime different from the one is not a violation

Question 15

Miranda–Government Conduct Requirement

Answer 15

To offset the coercive nature of custodial police interrogations, a suspect must be told of the right to counsel and the right to remain silent prior to custodial interrogation by a police officer.

Question 16

Custody Under Miranda

Answer 16

Determining whether someone is in custody for purposes of Miranda requires a two-step process:

1. First determine whether a reasonable person under the circumstances would feel free to terminate the interrogation and leave
2. If not, determine whether the environment presents the same inherently coercive pressure as the type of station house questioning at issue in Miranda. If it does, the person is in custody.

Question 17

Interrogation Under Miranda

Answer 17

Broadly defined as any words or conduct by the police designed to elicit an incriminating response.

Question 18

Waiving Miranda Rights

Answer 18

(1) To be valid, must be knowing and voluntary

(2) If a detainee is given Miranda warnings and chooses to speak, a valid waiver will be found.

Question 19

Invoking Miranda Rights to Remain Silent

Answer 19

(1) At any time prior to or during interrogation, a detainee may indicate that he wishes to remain silent
(2) To be effective, such an indication must be explicit, unambiguous and unequivocal
(3) If the right to remain silent is invoked, it must be scrupulously honored (all questioning about the crime must cease)

Question 20

Invoking Miranda Rights to Counsel

Answer 20

(1) Can be claimed prior to or during interrogation
(2) Request must be unambiguous and specific
(3) All questioning must cease until detainee is provided with an attorney, initiates further questioning, or 14 days pass after detainee returns to normal life.

Question 21

Grand Jury – Right to Counsel

Answer 21

Grand jury witness does not have right to counsel in the grand jury room.

Question 22

Fruit of the Poisonous Tree Doctrine

Answer 22

Under the exclusionary rule, not only is evidence obtained in violation of a defendant’s 4th, 5th, or 6th Amendment rights inadmissible at trial, but also any evidence derived from exploitation of the illegally obtained evidence

Question 23

Good Faith Exception to Exclusionary Rule

Answer 23

Exclusionary rule does not apply when police arrest or search someone erroneously, but in good faith, thinking they are acting pursuant to a valid arrest warrant, search warrant, or law

Question 24

Inevitable Discovery & Independent Source Rule

Answer 24

If the police would have discovered evidence whether or not they had acted unconstitutionally, the evidence will be admissible.

Question 25

Harmless Error Test

Answer 25

Conviction will not be overturned merely because improperly obtained evidence was admitted if the government can show beyond a reasonable doubt that the admission was harmless.

Question 26

Ineffective Assistance of Counsel

Answer 26

Must show:

1. Deficient performance by counsel
2. But for the deficiency, the result of the proceeding would have been different

Question 27

Proof Beyond Reasonable Doubt

Answer 27

In all criminal cases the state must prove guilt beyond a reasonable doubt.

Question 28

When Jeopardy Attaches

Answer 28

(1) Attaches at a jury trial when the jury is shown in

(2) Attaches at a bench trial when the first witness is sworn in

Question 29

Blockburger Rule

Answer 29

Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes.

Question 30

Privilege Against Self-Incrimination – Testimonial Limitations

Answer 30

Protects only testimonial or communicative evidence and not real or physical evidence.

Question 31

14th Amendment Voluntariness

Answer 31

(1) Assessed by looking at totality of the circumstances, including suspect’s age, education, and mental and physical condition, along with the setting, duration and manner of police interrogation
(2) Only official compulsion prohibited, confession not involuntary merely because it’s the product of mental disease, drug use, or the like