Criminal Procedure

Question 1

Four key questions in search and seizure and 4th amendment?

Answer 1

1. was the search or seizure executed by a government agent?
2. was the search or seizure of an area or item protected by the Fourth Amendment?
3. did a government agent either a) physically intrude on a protected area or item? or b) violate an individuals reasonable expectation of privacy in a protected area or item?
4. did the individual subjected to the search or seizure have standing to challenge the government agent’s conduct?

Question 2

who is a government agent?

Answer 2

publicly paid police officer
private citizen acting at the direction of the police
private security guard deputized with the power to arrest
public school administrator

Question 3

fourth amendment protects individuals from unreasonable search and seizure of:

Answer 3

persons, houses, papers, effects

Question 4

houses include

Answer 4

hotel rooms, curtilage: the area adjacent to the home to which the activity of home life extends

Question 5

items that are not protected

Answer 5

paint scrapings, account records, airspace, garbage, voice, odors (especially from car or luggage) handwriting, open fields

all have knowing exposure to thrid parties in common

Question 6

two wys searches and seizures by gov agents can implicate 4th amendment rights

Answer 6

1. the agent physically intruded on a constitutionally protected area in order to obtain information or
2. the agent search or seizure of a constitutionally protected area violated an individuals reasonable expectation of privacy

Question 7

reasonable expectation of privacy

Answer 7

individual must show: 1. an actual or subjective expectation of privacy in the area searched or the item seized AND 2. that expectiation was one that society recognizes as reasonable

Question 8

presumptively unreasonable search

Answer 8

device that is not in public use is used to explore details of the home that officers could not have known without physical intrusion

Question 9

to have standing to challenge the lawfulness of a search or seizure

Answer 9

an individuals personal privacy rights must be invaded, not those of a third party
owner, resident and overnight guests always have standing. business purposes only, do not have standing
if you own the property seized, only have expectation of privacy in the area from which the property was seized
passengers in a car? not as to searches of the car, no expectation of privacy in a vehicle in which they are merely passengers

Question 10

four key questions as to if the search pursuant to a search warrant satisfies the fourth amendment?

Answer 10

1. was the warrant issued by a neutral and detached magistrate?
2. is the warrant supported by probable cause and particularity?
3. if not, did the police officers rely on a defective warrant in good faith?
4. was the warrant properly executed by the police?

Question 11

probable cause for a warrant

Answer 11

requires proof of a fair probability that contraband of evidence of crime will be found in the area searched
hearsay is admissible
can use informants tips even if anonymous. the sufficiency of the tip rests on corroboration by the police of enough of the tipsters information for the magistrate to make a common sense practical determnation of the totality of the circumstances

Question 12

particularity in a warrant

Answer 12

must specify the

1. place to be searched and
2. the items to be seized

Question 13

good faith in a defective search warrant

Answer 13

good faith can overcome deficits in probable cause and particularity except:

1. the affidavit supporting the warrant application so egregiously lacking in probable cause that no reasonable officer would have relied on it
2. the warrant is so facially deificient in particularity that officers could not reasonably presume it to be valid
3. the affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding
4. the magistrate who issued the warrant is biased in favor of the prosecution

Question 14

was the search warrant properly executed? two aspects

Answer 14

1. whether the officers executing the warrant complied with its terms and limitations and
2. whether the officers executing the warrant complied with the knock and announce rule

Question 15

compliance with warrant terms and limitations

Answer 15

officers can only search those areas and items authorized by the language of the warrant

Question 16

knock and announce rule

Answer 16

requires the police to knock and announce their presence and their purpose before forcibly entering the place to be searched unless the officer reasonable believes that doing so would be:

1. futile
2. dangerous
3. would inhibit the investigation

Question 17

8 exceptions to the warrant requirement

Answer 17

ESCAPIST

1. Exigent Circumstances
2. search incident to arrest
3. consent
4. automobile
5. plain view
6. inventory
7. special needs
8. Terry stop and frisk

Question 18

exigent circumstances

Answer 18

1. evanescent evidence: evidence that would disappate or disappear in the time it would take to get a warrant
2. hot pursuit of a fleeing felon:
   a) allows the police to enter a suspects home or that of a third party in search of a fleeing felon
   b) any evidence of a crime discovered in plain view while searching is admissible
3. emergency aid exception: police may enter a residence without a warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergent aid to address or prevent injury

Question 19

search incident to arrest

Answer 19

1. the arrest (custodial arrest) must be lawful
2. justifications: officer safety and the need to preserve evidence
3. Timing* the search must be contemporaneous in time and place with the arrest
4. geographic scope: the wingspan, which includes the body, clothing, and any containers within the arrestees immediate control without regard to the offense for which the arrest was made

automobile searched incident to arrest: interior cabin including closed containers but not the trunk
secured v. unsecured arrestees: once secured, the officer can search the vehicle only if she has reason to believe the vehicle contains evidence relating to the crime for which the arrest was made

Question 20

Consent

Answer 20

Standard: must be voluntary and intelligent, but police do not have to tell you of your right to refuse. scope of the search is in the hands of the consentor
scope of consent: extends to all areas for which a reasonable officer would believe permission to search was granted
Apparent Authority: if a police officer obtain consent from someone who lacks actual authority to grant it, the consent is still valid is the officer reasonably believed that the consenting party had actual authority
Shared Premises: when adults share the residence, any resident can consent to the search of the common areas but if cotenants disagree regarding consent to search, the objecting party prevails

Question 21

Automobile exception

Answer 21

Justification: vehicles are readily mobile and individuals have a lesser expectation of privacy
Standard: police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle
Where can they search? the entire vehicle and they may open any package, luggage, or other container that may reasonably contain the item for which there was probably cause to search
Traffic stops and auto searches: the officer does not ned probable cause to search at the time the car is pulled over provided he acquires it before intitiating the search

Question 22

plain view

Answer 22

three requirements:

1. lawful access to the place from which the item can be plainly seen
2. lawful access to the item itself and
3. the criminality of the item is immediately apparent

Question 23

inventory search

Answer 23

2 common contexts: arrestees when booked into jail and vehicles when they are impounded
constitutional provided:
1. the regulation governing them are reasonable in scope
2. the search itself complies with those regulations and
3. the search is conducted in good faith, (motivated soley by the need to safeguard the owner’s possessions and to ensure officer safety)

Question 24

special needs

Answer 24

beyond a general interest in law enforcement
Drug testing: can be warrantless and suspicion-less in contexts including:
1. railroad employees following an impact accident
2. customs agents responsible for drug interdiction and
3. public school children who participate in any extracurriculars
BUT suspicion-less drug tests are not permitted where their primary purpose is to gather criminal evidence for general use
Parolees: warrantless and suspicion-less searches of a parolee and his home are permissible as a condition of parole
school searched: person and effects of public school children are permissible to investigate violations of school rules provided they are reasonable and not excessively intrusive
Border searches: neither citizens not non citizens have 4h amend rights at the border

Question 25

Terry stop

Answer 25

a brief detention or seizure for the purpose of investigating suspicious conduct
can take place anywhere

Question 26

when are you seized under the 4th amendment?

Answer 26

based on the totality of the circumstances, a reasonable person would not feel free to leave or to decline an officers request to answer questions.
Things to consider:
is the officer brandishing their weapon?
what is the officers tone and demeanor when interacting with the person present?
has the individual been told they have the right to refuse consent

Question 27

police pursuit and seizure

Answer 27

an individual is seized only if he submits to the authority of the officer by stopping or if the officer physically restrains him (think tackling)

Question 28

Passengers in a terry stop

Answer 28

both the driver and the passenger are seized
the officer may order both the driver and passenger out of the car
dog sniffs are permissible provided the sniff does not prolong the stop unreasonably

Question 29

Terry frisk

Answer 29

a pat down of the body and outer clothing for weapons that is justified by an officers belief that a suspect is armed and dangerous

Question 30

what can be seized in a terry frisk?

Answer 30

anything the officer reasonably believes is a weapon and anything that the officer recognizes as contraband without physically manipulating the object

Question 31

car frisk at a terry stop

Answer 31

if an officer believes that a sispect is dangerous, he may search the passenger cabin limited to those places in which a weapon may be places or hiden

Question 32

protective sweeps

Answer 32

when making an in home arrest police may sweep the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety

Question 33

Evidentiary standard in Terry stop and frisk

Answer 33

reasonable suspicion, which is less than probable cause
this requires specific and articulable facts that informs an officers belief that criminal activity was present for a terry stop (objective)
or that a suspect is armed and dangerous (terry frisk)
Terry frisk is justified by concern for officer safety only not a general search from criminal evidence
informants tips can contain sufficient predictive information for the standard to be satisfied

Question 34

evidentiary standard in protective sweep

Answer 34

without probably cause or reasonable suspicion-officers can look in areas adjoining the place of the arrest from which an attack could be immediately launched
to justify a sweep of more remote areas, the arresting officers must have additional facts sufficient to allow a reasonably prudent officer to conclude that an individual who may threaten officer safety is present in the area swept

Question 35

exclusionary rule

Answer 35

evidence, whether phyiscal or testimonial that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated

Question 36

fourth amendment limits on the exclusionary rule

Answer 36

1. unconstitutionally obtained evidence is excluded from the prosecutor’s case in chief only and may be introduced to impeach D testimony on cross
2. a failure to comply with knock and announce does not require supression of evidence that is subsequently discovered
3. erroneous police conduct must be deliberate, reckless, or grossly negligent to trigger the exclusionary rule
4. if the officers mistake was reasonable, the exclusionary rule does not apply to evidence erroneously obtained
5. fruit of the poisonous tree

Question 37

fruit of the poisonous tree

Answer 37

Derivative evidence: both physical and testimonial obtained by exploiting prior unconstitutional conduct is the fruit of the poisonous tree, it is inadmissible in the prosecutions case in chief.

Question 38

nullify the fruit of the poisonous tree

Answer 38

have to show a break in the causal link between the original illegality and the criminal evidence later discovered:

1. independent source: there is a source for the discovery and seizure of the evidence that is distinct
2. inevitable discovery: evidence woulf have necessarily been discovered through lawful means
3. attenuation: the passage of time and intervening events purge the taint and restore the D free will

Question 39

wiretapping

Answer 39

4 requirements for a valid wiretap warrant

1. suspected persons must be named
2. time: the wiretap must be for a strictly limited time period
3. crime: there must be a probable cause that a spcific crime has been committed
4. conversations: the warrant must describe with particularity the conversations that can be overheard

Question 40

eavesdropping

Answer 40

if you speak to someone who has agreed to wiretap ot electronically monitor you, there is no 4th amendment claim becuase you assume the risk that the other party will not keep you conversation private

Question 41

when does arrest occur?

Answer 41

whenever the police take someone into custody against her will for prosecution or interrogation
it is de facto arrest when the police compel someone to come to the police station for questioning or fingerprinting

Question 42

what standard of proof required for arrest

Answer 42

probable cause

Question 43

for what offense doe the 4th amendment permit custodial arrest

Answer 43

all offenses, even if only punishable by monetary fine

Question 44

when do you need an arrest warrant?

Answer 44

do not need one in a public place: officers can make a warrantless arrest when they have probable cause to believe that the arrestee has committed a felony or if there has been a misdemeanor committed in their presence

absent an emergency, need a warrant for arrest at home

in home of a 3rd party, need an arrest and search warrant

Question 45

common enterprise theory

Answer 45

in a traffic stop when a police officer discovers evidence of crime that suggests a common enterprise between the driver and the passengers, the officer can arrest any or all of them based on reasonable inference of the shared dominion and control over the contraband

Question 46

three challenges to exclude a confession?

Answer 46

1. 14th amendment due process
2. 6th amendment right to counsel
3. 5th amendment Miranda doctrine

Question 47

confessions under the 14th amend.

Answer 47

excluded if involuntary: the confession is the product of police coercion that overbears the suspects will

Question 48

confession under the right to counsel

Answer 48

1. an express constitutional guarantee that attaches when the D is formally charges and not upon arrest
2. applies at all critical stages of the prosecution that take place after formal charging including arraginment, probale cause hearing and police interrogation
3. this is an offense specific right that applies only to the crimes which are formally charged, no protection for other uncharged crimes
4. if statements regarding charged offenses are deliberately elicited and the defendant did not knowingly and voluntarily waive his right to have an atty present, the 6th is violated

Question 49

confession and miranda

Answer 49

implied rights grounded in the 5th amendment right against self incrimination
1. necessary when custody and interrogation

Question 50

requirements for custody in miranda?

Answer 50

two part test:

1. would a resonable person have felt that she was not at liberty to end the interrogation and leave, and
2. was the environment present, the same inherently coercive pressures as the station house questioning?

should take into account a juvenilles age ehre age is relevant and if the officer knew or should have known the age of the suspect

Question 51

interrogation for miranda

Answer 51

any conduct the police knew or should have known was likely to elicit an incriminating responce

Question 52

public safety exception to miranda

Answer 52

if interrogation is prompted by an immediate concern for public safety miranda warnings are not necessary and any incriminating statements are admissible

Question 53

valid miranda waiver

Answer 53

1. knowing and intelligent: if the suspect understands a)the nature of the rights and b) the consequences of abandoning them
2. voluntary: cannot be the product of police coercion

Question 54

executing a valid mrianda waiver

Answer 54

may be express or implied: have to waive both silence and the right to counsel in an uncoerced statement to the police
the burden of proof is on the prosecution to prove that there is a valid waiver by preponderance of the evidence

Question 55

invoke the right to remain silent

Answer 55

1. suspect must unambiguously invoke
2. once invokes, police must scrupulously honor the invocation; they cannot badger the suspect into talking and must wait a significant period of time before reinitiation and but obtain a valid waiver

Question 56

invoke the right to counsel

Answer 56

1. request must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel
2. once invoked, all interrogations must cease unless the suspect re-initiates
3. this is not offense specific, all topics are prohibited outside the attorney’s presence
4. request expires 14 days after the suspect is released from custody, a waiver obtained may be valid.

Question 57

limitations on evidentiary exclusions as applied to miranda violations

Answer 57

1. inadmissible to the prosecutors case in chief but can be used to impeach the D on cross but NOT the testimony of 3rd party witnesses
2. failure to give miranda will not suppress the physical fruits of the statements, provided the statements are voluntary
3. subsequent incriminating statements made after obtaining waiver are admissible

Question 58

if testimonial evidence that should have been excluded as violative of miranda is the court required to vacate the guilty verdict?

Answer 58

not if the gov. can prove beyond a reasonable doubt that the error was harmless because the D would have been convicted without the tainted evidence

Question 59

pretrial identifications

Answer 59

two challenges are possible:
1. denial of the right to counsel: 5th amendment, no right to counsel for pretrial ID
6th amendment: right to counsel for lineups and showups that take place after formal charging, but not at photo arrays
2. violation of due process
if unreasonably suggestive that it creates a substantial likelihood of misidentification

have to weight the reliability of the suggestive identification against its corrupting effect
the remedial violation is the exclusion of a witness’s in court identification but this will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconsitutional show up, etc
prosecution can point to factors such as:
witness opportunity to view the defendant at the crime scene, the specificity of the description given to the police and the certainty of the witness’s ID

Question 60

Grand Juries

Answer 60

issue injunctions, nonpublic proceedings, states do not have to use them

Question 61

pre trial detention

Answer 61

gov needs probable cause both to bind a D over for trial and to detain him in jail before trial
detention hearing: hearing to determine probable cause (Gerstein hearing) is un-necessary if there is a grand jury indictment or a magistrate has issued an arrest warrant
First appearance: Detainee will be brought before a magistrate who will:
advice him of his rights, set bail and appoint counsel if necessary
decisions regarding bail are immediately appealable

Question 62

evidentiary disclosure

Answer 62

prosecutor must disclose to a criminal defendant all material exculpatory evidence (the brady rule)

Question 63

Right to an unbiased judge

Answer 63

the judge has no financial stake in the outcome of the case and the judge has no actual malice toward the D

Question 64

Juries: fundamental protections, right to trial, numbers

Answer 64

ALL criminal defendants have a right to a fair and impartial jury, when the maximum authorized sentence exceeds 6 months, there is a right to a jury trial. the fewest number of jurors in a criminal trial is 6

Question 65

unanimity of jury verdicts

Answer 65

must be unanimous is only 6 jurors are used, 12 person juries do not require unanimity (many states require that they are unanimous though)

Question 66

jury pool cross sectional requirement

Answer 66

the pool from which the jury is drawn represents a cross section of the community

Question 67

preemptory challenge

Answer 67

permit both sides to exclude jurors without stating the reasons for doing so but they cannot be used by either side to exclude prospective jruors on account of race or gender

Question 68

right to confront adverse witnesses

Answer 68

does not apply where the face to face confrontation would contravene important public policy concerns. ex. traumatizing a child witness

Question 69

the right to effective assistance of counsel

Answer 69

to prove:

1. deificiency requirement: counsel’s performance fell below an objective standard of reasonableness meaning he made errors so serious that he was not functioning as counsel AND
2. but for the deificency the outcome of the trial would have been different

Question 70

valid guilty plea

Answer 70

the judge must establish that it is voluntary and intelligent

Question 71

plea taking colloquy

Answer 71

before accepting a plea, the judge must conduct a colloquy in open court in which he addresses on the record

1. the nature of the charges including required elements of the charged offense AND
2. the consequences of the plea

Question 72

withdrawing a plea

Answer 72

the D may withdraw a guilty plea after sentencing only if

1. the plea is involuntary, due to a defect in the plea taking colloquy
2. there is jurisdictional defect
3. tje D prevails on a claim of ineffective assistance of counsel or
4. the prosecutor fails to fulfill his or her part of the bargain (plea regarded as a K)

Question 73

8th amendment punishment standard

Answer 73

no cruel and unusual punishment, there cannot be criminal penalties that are grossly disproportionate to the seriousness of the offense committed

Question 74

the death penalty

Answer 74

1. cannot be an automatic category for the imposition of the death penalty
2. in deciding to impose the death penalty, the jurors must be allowed to consider all potentially mitigating evidence
3. categorical exclusions: cannot sentence to death anyone with
   mental retardation, presently insane, or D’s who were under 18 at the time of the relevant offense

Question 75

when does jeopardy attach?

Answer 75

when the jury is sworn in a jury trial, when the 1st witness takes the stand in a bench trial or when the court unconditionally accept the D’s plea

does not apply to civil proceedings

Question 76

same offense in double jeopardy

Answer 76

two offenses are not the same offense for purposes of the double jeopardy clause if each contains an element that the other does not

Question 77

greater and lesser included offenses and double jeopardy

Answer 77

if only one offense has an element that the other does not, cannot be tried for both, prosecution for one precludes later prosecution for the other

Question 78

same sovereign-doule jeopardy

Answer 78

state and fed gov-no
different states_no
state and municipalities within them?- yes

Question 79

four exceptions to the double jeopardy rule to permit retrial:

Answer 79

1. a hung jury
2. a mistrial for manifest necessity
3. a successful appeal unless the reversal on appeal was based on the insuffciency of the evidence presented by the prosecution at trial
4. breach of the plea bargain agreement by the defendant

Question 80

taking the fifth?

Answer 80

1. anyone can take it
2. can be asserted in any proceeding in which an individual testifies under oath (sworn testimony)
3. failure to assert in civil can undermine the ability to assert it in a later criminal trial
4. does not apply to the states use of our bodies (dna extraction)
5. disallows negative prosecutorial comment on D’s decision not to testify at his trial or invocation of the right to silence or counsel

Question 81

3 ways to eliminate the 5th amend priviledge

Answer 81

grant of immunity: prosecutor can grant use and derivative use immunity which bard the government from using your testimony or anything derived from it to convict you BUT can still be convicted based on evidence obtained prior to grant of immunity
taking the stand: D waives the ability to take the 5th as to anything properly within the scope of cross examination
statute of limitations: the privilege is unavailable if the statute of limitations has run on the underlying crime since a witnesses testimony could not expose him to criminal prosecution