Criminal Procedure

Question 1

What is required to challenge a Search and Seizure?

Answer 1

STANDING.
The challenger must have a reasonable expectation of privacy regarding the item or place searched.

*Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess.

Question 2

Arrests

When does Probable Cause arise?

Answer 2

It arises when the police officer has:

1) Trust worthy facts or knowledge,
2) Sufficient to warrant a reasonable person to believe,
3) That a crime has occurred.

*If in a public space, probable cause is all that’s required. If in someone’s home, a warrant is required to make an arrest.

Question 3

When may a police officer Stop and Inquire?

Answer 3

If the police officer:

1) Has reasonable articulable suspicion,
2) That criminal activity is afoot.

*Allows only a brief detention for questions, after which the suspect must be released.

*An officer may make a request for information anytime, except on whim or caprice.

Question 4

When may a police officer Stop and Frisk?

Answer 4

If the police officer:

1) Has reasonable articulable suspicion,
2) That criminal activity is afoot, AND
3) That the person has a weapon.

*Under the Plain Feel Doctrine, the officer may only seize items during the frisk that he reasonably believes is contraband or a weapon.

Question 5

What is required for a valid Search Warrant?

Answer 5

To be valid:

1) There must have been probable cause;
2) The warrant must state with particularity the place to be searched and the items to be seized; AND
3) It must be issued by a neutral and detached magistrate.

Question 6

What are the exceptions that permit a Warrantless search and seizure?

Answer 6

1) Plain View doctrine.
2) Exigent circumstances.
3) Automobile exception.
4) Search incident to an arrest.
5) Consent.
6) Inventory searches.
7) Stop and Frisk.
8) Where the U.S. Supreme Court has concluded there is a special need.

Question 7

When is the use of sensory enhancement technology deemed a search?

Answer 7

If:

1) The technology is NOT in general public use; AND
2) The police obtain activities inside the home.

It also depends on the type of surveillance, the type of information accessed, the nature of the property and the availability of the tech used.

Question 8

Exception to Warrant Requirement

Plain View Doctrine

Answer 8

The police may seize evidence without a warrant if:

1) It is observed in plain view (5 senses);
2) From a place the officer is lawfully permitted to be; AND
3) Probable cause exists to believe that the items are evidence of a crime or contraband.

Question 9

Exception to Warrant Requirement

Exigent Circumstances

Answer 9

This exists when:

a) The evidence is evanescent;
b) It’s necessary to prevent imminent destruction of evidence;
c) The emergency aid exception applies; OR
d) The police are in hot pursuit of a felon and the evidence is in plain view.

Question 10

Exception to Warrant Requirement

Search Incident to Arrest

Answer 10

Police CAN make a contemporaneous warrantless search incident to a lawful arrest of:

1) the suspect’s person; and
2) the area within the suspect’s immediate control.

Arrest in a Home -> police also MAY search closets and other spaces immediately adjoining the place of arrest (from where an attack may be launched).

Arrest in a Vehicle -> police also MAY search (i) passenger’s compartment, and (ii) vehicle + any containers therein (if reason to believe it contains contraband).

Question 11

Exception to Warrant Requirement

Consent

Answer 11

It is an exception ONLY if it is given freely, voluntarily, and intelligently.

A third person may consent to a search, BUT that person must have authority.

Question 12

Exception to Warrant Requirement

Administrative and Inventory Searches

Answer 12

Administrative Searches: DO NOT require a warrant. They serve special needs distinct from the ordinary interest in law enforcement.

Inventory Searches: To be valid the search must be:

1) Reasonable; AND
2) Conducted pursuant to established police agency procedures.

Question 13

Exception to Warrant Requirement

Checkpoints

Answer 13

Police may stop a vehicle if:

1) It is conducted in a nondiscriminatory manner;
2) For a purpose other than investigation of criminal activity; AND
3) It is reasonable in scope.

Question 14

Exception to Warrant Requirement

Automobile Exception

Answer 14

This exception allows a warrantless search of the car if the police have probable cause that either contraband OR evidence of a crime will be found in the vehicle.

*If there is probable cause: Police can search the entire car AND packages, luggage, or containers that may reasonably contain items for which there is probable cause.

Question 15

Under the 14th Amendment Due Process Clause, when will a Confession be excluded at trial?

Answer 15

A confession is inadmissible if it’s the product ofpolice coercion that overbears the suspect’s free will.

*Courts will consider the characteristics of the interrogation AND the individual.

Question 16

When may a judge deny the right to self- representation by a defendant?

Answer 16

If the defendant:

a) Lacks the competence to stand trial; OR
b) Validly waives the right to counsel.

The right must be assumed knowingly AND intelligently.

Question 17

What will a court consider, to determine if adefendant’s right to a speedy trial was violated?

Answer 17

1) The reason for the delay;
2) Whether the defendant objected to the delay;
3) The length of the delay; AND
4) Any prejudice the defendant suffered.

Question 18

What are Miranda Warnings?

Answer 18

Miranda warnings inform suspects that:

1) They have the right to remain silent;
2) Anything they say can be used against them in court;
3) They have the right to talk to an attorney and have one present when they are questioned; AND
4) If they cannot afford one, an attorney will be provided to them.

*These rights only attach when there is a custodial interrogation of a suspect.

Question 19

When may a custodial interrogation be reinitiated after the right to counsel has been invoked?

Answer 19

If:

1) The suspect has been re-advised of his Miranda rights;
2) Has provided a knowing and voluntary waiver; AND
3) Either:

• Counsel is present,
• The suspect initiates the communication; OR
• At least 14 days have passed since the suspect was released from custody.

Question 20

When does the accused have the Right to Counsel under the 6th Amendment?

When does it attach?

Answer 20

The accused has the right to counsel in ALL criminal prosecutions except in State misdemeanor prosecutions that do not carry a substantial risk of jail time.

This attaches once formal adversarial judicial proceedings have commenced.

*This right to counsel is offense-specific.

Question 21

What must a defendant show in order to prove Ineffective Assistance of Counsel?

Answer 21

They must show that:

1) His counsel’s performance was deficient; AND
2) But for the counsel’s errors, the result of the trial would have been different.

*If shown, the verdict is reversed, and the defendant is entitled to a new trial.

Question 22

Under the Independent Source Rule, when is an in-court identification admissible at trial?

Answer 22

When:

1) The witness identified the defendant in-court basedon the witness’s previous knowledge,
2) Which is trustworthy, AND
3) Was obtained by the witness in a previous transaction.

Question 23

When does the Exclusionary Rule NOT apply?

Answer 23

If:

a) The police had an independent source for the secondary evidence;
b) The discovery of the evidence would have been inevitable regardless of the illegality;
c) Through the attenuation doctrine; OR
d) The police relied in good faith on a defective search warrant.

Question 24

What are the 4 exceptions where a police officer’sgood faith reliance DOES NOT excuse an invalid warrant?

Answer 24

1) The warrant is lacking in particularity that no reasonable officer could believe in good faith that the warrant is valid.
2) The warrant is lacking in probable cause that no reasonable officer could have relied on it.
3) When the magistrate judge who issued the warrant is biased.
4) When the police officer who obtained the warrant lied on the application.

Question 25

What are the limitations on the Exclusionary Rule as applied to Miranda Violations?

Answer 25

Limitation #1: Failure to give warnings DOES NOT require suppression of physical evidence.

Limitation #2: Statements made after Miranda warnings are admissible, UNLESS a non-mirandized statement was the result of coercive police tactics offensive to due process.

Limitation #3: Statements obtained in violation are inadmissible in the prosecution’s case-in-chief, BUT may be used to impeach a defendant on cross examination.

Question 26

What is required for valid waiver of Miranda Rights?

Answer 26

A valid waiver must be:

1) Voluntary; AND
2) Knowing and intelligent.

Question 27

Double Jeopardy will bar separate prosecutions of a defendant arising out of the same offense.

When are crimes NOT deemed to be the “same offense”?

Answer 27

IF:

Each crime requires proof of a fact which the other does not.

Question 28

Double Jeopardy will bar separate prosecutions of a defendant arising out of the same offense.

What exceptions exist where a defendant can be retried?

Answer 28

Exceptions:

a) When the first trial ends in a hung jury;
b) When manifest necessity exists to end the original trial; OR
c) When the original trial is terminated at the defendant’s request, and it’s not for an acquittal on the merits.

Question 29

Under the Harmless Error Rule, when will a guilty verdict stand on appeal?

Answer 29

It will stand if the prosecution can prove that the error(evidence in violation of the defendant’s constitutionalrights was improperly admitted) was harmless because the defendant would have been convicted without the tainted evidence.

Question 30

When is a guilty plea valid?

Answer 30

When:

1) It is voluntary and intelligent; AND
2) The judge informs the defendant of the following at the time the plea is entered:
a. The nature of the charge;
b. The maximum possible sentence;
c. The mandatory minimum sentence;
d. That they have a right to a jury trial, to confront a witness, and are protected against self-incrimination;
e. That those rights will be waived.