CRIMINAL PROCEDURE RULES!

Question 1

Is the Search or Seizure Governed by the 4th Amendment?

Answer 1

A search or seizure is challengeable under the 4th Amendment if (1) was executed by government agent, (2) was of protected item or area, & (3) violated defendant’s reasonable expectation in privacy in protected area or physically intrude on it to obtain info, and (4) the individual subjected to it has standing.

Question 2

Government Agent Requirement of 4th Amendment

Answer 2

Publicly paid police, citizen acting at police direction, security guards w/ arrest power, & school administrators.

Question 3

Item or Area Protected by 4th Amendment

Answer 3

The 4th expressly protects individuals from unreasonable SS of their (1) persons, (2) house/hotel room, (3) personal paper correspondence, & (4) personal effects – vehicle/purse/bag. House includes cartilage which is an area of domestic use that is immediately surrounding the house (back yard surrounded by fence, front porch).

Question 4

Unprotected Items

Answer 4

Include: paint scraping outside of car, bank held acct records, things seen below from airspace, garbage at curb, sound of voice, odors from car/bag, style of handwriting, & anything that can be seen in or across open fields.

Question 5

Physically Intrude on Protected Area

Answer 5

Physically intruded on protected area to obtain information. In Jones, install of GPS on car in order to monitor movements is physical intrusion on an effect for the purpose of obtaining information. Thus, it is a search.

Question 6

Reasonable Expectation of Privacy in Protected Area/Item

Answer 6

Challenger must show (1) an actual or subjective expectation of privacy of area/item, & (2) that it is one society recognizes as reasonable. Presumptively unreasonable if police use device not in public use to explore home.

Question 7

Challenger Standing

Answer 7

To have standing to challenge lawfulness of SS, his privacy rights must have been invaded, not those of 3rd party. Owner or Resident of searched premise have standing. Overnight guests only as to areas he can be expected to access (not host’s closet). A guest using residence for business does NOT.

One who owns personal property has standing if reasonable expectation of privacy in area it was seized. Car passenger has no standing to SEARCHES in car, but it is a seizure.

Question 8

Does Search Warrant Satisfy 4th Amendment?

Answer 8

A search warrant under which evidence was gathered satisfies the 4th if it (1) was issued by neutral & detached magistrate, & (2) was supported by particularity, & (3) supported by probable cause.

Question 9

Neutral/Detached Magistrate & Particularity Elements

Answer 9

Not if his conduct demonstrates bias in favor the prosecution (commission for each warrant issued). To be particular, the warrant must specify the place to be searched & the items to be seized.

Question 10

Probable Cause Element

Answer 10

Supported by probable cause if there is a fair probability that contraband or other evidence of a crime will be found in the area searched. Can rely on anonymous tip, but sufficiency of it rests on corroboration by police to allow magistrate to make commonsense practical determination that probable cause exists based on totality.

Question 11

Police Compliance with Terms & Limitations of Search Warrant

Answer 11

Allowed to search only those area/items authorized by its language. In NC, void if not executed w/in 48 hours.

Question 12

Police Compliance with the Knock & Announce Rule

Answer 12

Police must K&A their presence & purpose before forcible entering unless he reasonably believes that doing so would be futile, dangerous, or inhibit the investigation.

Question 13

Is Warrantless Search Valid under any Exception to Warrant Requirements?

Exigent Circumstances (3 Types)

Answer 13

Evanescent evidence: may seize evidence that would dissipate/disappear before getting a warrant.

Hot Pursuit: may enter home of suspect or 3rd party to search for fleeing felon, & get plain view stuff.

Emergency Aid: may enter home if objectively reasonable basis for believing emergency aid or prevent injury.

Question 14

Search Incident to Arrest

Answer 14

Upon arrest, warrantless search permitted on body, clothing, & any container w/in arrestee’s immediate control, and it must be at the time/place of arrest. Search may only be done for officer safety or to preserve evidence.

Question 15

Automobile Search Incident to Arrest

Answer 15

Upon arrest, warrantless search permitted to interior cabin of car, including closed containers, but not trunk. However, once secured, can search the rest of vehicle if reason to believe it contains evidence to this crime.

Question 16

Consent to Search

Answer 16

Consent must be voluntary & intelligent & extends to all areas reasonable officer would believe permission to search was granted. Apparent authority if reasonably believed had actual authority. NC, consent is valid based on silent conduct & gestures. If roommates, 1 can consent but if 1 objects, he wins as to shared control areas.

Question 17

Automobile Exception

Answer 17

Can search entire car, trunk, & contents if probable cause to believe evidence of a crime will be found.

Question 18

Automobile Exception with Routine Traffic Stop

Answer 18

An officer can search an entire vehicle after routine traffic stop if he acquires probable cause thereafter.

Question 19

Plain View Exception

Answer 19

An officer can seize items in plain view if (1) lawful access to place & item, (2) criminality of the item was immediately apparent, and (3) the item’s discovery was inadvertent.

Question 20

Inventory Search Exception

Answer 20

Constitutional if (1) governing regs are reasonable in scope, (2) search complies with those regs, & (3) search is conducted in good faith meaning it was motivated solely to safeguard owner’s possessions or for officer safety.

Question 21

Special Needs Exception – Random Drug Testing

Answer 21

Court has approved warrantless random drug tests on (1) RR employee after accident, (2) custom agents responsible for drug banning, & (3) school kids who participate in any EC activity. Not if purpose for evidence.

Question 22

Special Needs Exception – Parolees

Answer 22

The Court has approved warrantless, suspicion-less searches of a parolee & his home as a parole condition.

Question 23

Special Needs Exception – School Searches

Answer 23

Permissible to investigate school violations if reasonable at its inception & not excessively intrusive in light of the student’s age & sex, and the nature of the infraction.

Question 24

Special Needs Exception – Border Searches

Answer 24

Neither citizens nor non-citizens have any right at border w/ respect to routine searches of persons & effects.

Question 25

Terry Stop Exception

Answer 25

A Terry Stop is a brief detention or seizure for purpose of investigating suspicious conduct, & can be anywhere. However, one will be seized for 4th Amend purposes if, based on totality, a reasonable person would not feel free to leave or would not feel free to decline an officer’s request to answer questions. Consider officer’s tone & demeanor, whether he brandished a gun, & whether he was told he had the right to refuse to answer.

If being pursued, one is seized only if he submit’s to officer’s authority by stopping OR officer restrains him.

In a traffic stop, both driver/passenger are seized. Officer, in his discretion may order both out of car. Dog sniffs at traffic stops are permissible provided the sniff does not unreasonably prolong the stop.

Question 26

Terry Frisk Exception

Answer 26

A Terry Frisk is a pat-down of body & outer clothing for weapons that is justified if officer reasonably believes a suspect is armed & dangerous. Can seize anything he reasonably believes is a weapon. If officer instead finds contraband w/o manipulating the object, he can seize that as well.

When conducting traffic stop, may search cabin of vehicle if believed armed/danger, but limited to such areas.

When making in-home arrest, may sweep to look for allies of arrestee for officer safety if reasonable suspicion.

Question 27

Evidentiary Standards of Terry Stops & Frisks

Answer 27

Officer need only reasonable suspicion. Informant tip corroborated by police to establish reliability is good.

Terry Stop reasonable suspicion: specific/articulable facts that inform belief that criminal activity is present.

Terry Frisk Reasonable Suspicion: spec./articulable facts that suggest armed & dangerous. Officer safety.

Question 28

Using Evidence gathered in Unconstitutional S/S against D in Court

Answer 28

If unconstitutional, and no exception applies, some of the evidence may still be admissible in court against D.

Question 29

NC Exclusionary Rule

Answer 29

Evidence is excluded if obtained as a result of a Substantial violation of the NCPA. To find substantial, court must consider all surrounding circumstances including (1) importance of particular interest violated, (2) extent of deviation of lawful conduct, (3) if willful, & (4) extent that exclusion will tend to deter future ones.

Question 30

Fourth Amendment Limits on Exclusionary Rule

Answer 30

Unconstitutionally obtained evidence is excluded from case-in-chief; but may be used to impeach D on cross.

Question 31

Failure to comply with Knock/Announce does not require suppression of evidence subsequently discovered.

Answer 31

Erroneous police conduct must be deliberate, reckless, or gross neg. Not negligent bookkeeping.

Does not exclude evidence erroneously obtained when executing search warrant, if officer’s mistake reasonable.

Question 32

Fruit of the Poisonous Tree

Answer 32

Evidence, both physical & testimony, obtained by prior unconstitutional conduct, is fruit of poison tree. Thus, it is inadmissible in prosecution’s case in chief, but still admissible to impeach D’s testimony.

Question 33

Admitting Tainted Fruit – Independent Source Doctrine

Answer 33

Applies where source of discovery & seizure of evidence distinct from original (parallel police investigation).

Question 34

Admitting Tainted Fruit – Inevitable Discovery

Answer 34

Applies where evidence would necessarily have been discovered through lawful means (would have found it).

Question 35

Admitting Tainted Fruit – Attenuation Doctrine – Purging the Taint

Answer 35

Allows derivative evidence where passage time & intervening events purged the taint of the original illegality, and restores D’s free will (D illegally arrest on Friday, released on bail, meets with lawyer on Monday, & on Tuesday he returns to police to confess. Confession is admissible b/c not product of prior unconstitutional conduct. His release, meeting with counsel, & voluntary decision to confess 4 days later, purged the taint).

Question 36

Wiretapping and Eavesdropping

Wiretapping

Answer 36

For a wiretap warrant to be valid, it (1) must name person whose conversation are to be overheard, (2) must be for a strict limited time period, (3) there must be probable cause that a specific crime has been committed, and (4) the warrant must describe with particularity the conversation that can be overheard.

Question 37

Eavesdropping – The Unreliable Ear Doctrine & Assumption of the Risk

Answer 37

If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no Fourth Amendment claim; you assume the risk that the other party will not keep your conversations private.

Question 38

The Law of Arrest

When an Arrest Occurs

Answer 38

An arrest occurs whenever the police takes one into custody against his will for prosecution or interrogation, and the police must have probable cause to arrest. De facto arrest if compel to come in question/fingerprinting.

Question 39

When an Arrest Warrant is NOT Required

Answer 39

No warrant to arrest in a public place. May make warrantless arrest when they have probable cause to believe arrestee committed felony. May make a warrantless arrest for any misdemeanor committed in his presence.

Question 40

When an Arrest Warrant IS Required

Answer 40

An arrest warrant is required to arrest someone in their home, unless there is an emergency. To arrest someone in the home of a third party, officers need an arrest warrant AND a search warrant.

Question 41

Common Enterprise Theory – Traffic Stop

Answer 41

In a traffic stop, where officer discovers evidence of crime suggesting a common unlawful enterprise b/w driver & passenger, may arrest both based on reasonable inference of shared dominion & control over the contraband.

Question 42

Confessions

Answer 42

There are 3 federal constitutional challenges that can be brought to exclude a confession: (1) 14th Amendment Due Process Clause, (2) 6th Amendment Right to Counsel, & (3) 5th Amendment Miranda Doctrine.

Question 43

Excluding Confessions under the Due Process Clause

Answer 43

A confession can be excluded from evidence under the Due Process Clause if the confession was involuntary, which means that the confession is the product of police coercion that overbears the suspect’s will.

Question 44

Right to Counsel under the Sixth Amendment

Answer 44

The 6th Amendment right to counsel only attaches once D is formally charged. Right applies at all critical stages of the prosecution after formally filing charges: arraignment, probable cause hearings, & police interrogation.

The right is offense specific, meaning it applies only to the charges filed against you; thus, it provides no protection for non-counseled interrogation for other uncharged criminal activity.

Incriminating statements obtained from D by P about charged offenses, violate the 6th if statements are (1) deliberately elicited, & (2) D did not knowingly/intelligently & voluntarily waive right to have attorney present.

Question 45

Fifth Amendment Miranda Doctrine

Answer 45

Implied rights grounded of Fifth. Must include: (1) right to remain silent, (2) anything say can & will be used against you court, (3) right to attorney, (4) if you cannot afford, & (5) consult with family member or friend.

Question 46

Miranda Warnings are Required when in Custody

Answer 46

Required when a suspect is in custody. In custody, for Miranda purposes, if the atmosphere, viewed objectively, is characterized by police domination & coercion such that his freedom of action is limited in a significant way.

Question 47

Miranda Warnings are Required when Interrogated

Answer 47

Interrogation, for Miranda, is any conduct the police should have known likely to elicit incriminating response.

Question 48

Interrogation Public Safety Exception

Answer 48

If a suspect is under custodial interrogation which was prompted by an immediate concern for public safety, Miranda Warnings are unnecessary and any incriminating statements are admissible against the suspect.

Question 49

Communicating Miranda Rights

Answer 49

Incriminating responses obtained through custodial interrogation are admissible if (1) reasonably conveys to the suspect his core Miranda rights before interrogation (2) obtains valid waiver of rights to silence & counsel after.

Question 50

Valid Miranda Waiver

Answer 50

Miranda waiver must be knowing, intelligent, & voluntary (understands nature of rights, consequences of abandoning them, & un-coerced). Prosecution has burden of proving waiver by preponderance.

Question 51

Executing the Miranda Waiver

Answer 51

Miranda waiver may be express, or implied by course of conduct that indicates desire to speak to interrogators. If he received & understood his rights, he waives right to remain silent by making statement to the police.

Question 52

Invoking the Right to Remain Silent

Answer 52

Suspects must unambiguously invoke their right to remain silent. Once invoked, police must honor the invocation: at min police cannot badger him into talking. Also, police detectives must wait a significant period of time before reinitiating questioning & must first obtain a valid Miranda waiver.

Question 53

Invoking the Right to Counsel – 5th Amendment Right to Counsel

Answer 53

Once he asks for counsel, all interrogation must cease unless initiated by suspect. Request must be sufficiently clear; reasonable officer in same situation would understand it as request for counsel. Unlike the 6th, this right is not counsel specific. Thus, interrogation following a request for counsel under Miranda is prohibited to all topics, outside L presence. Request expires 14 days after suspect is released from custody; a waiver of the Miranda right to counsel obtained after this period is valid, provided it is knowing, intelligent, and voluntary.

Question 54

Evidentiary Exclusions for Miranda Violations

Answer 54

Incriminating statements obtained in violation of Miranda rights are inadmissible in the prosecutor’s case in chief, but may be used to impeach the D’s testimony on cross, but not 3rd party witnesses.

Failure to give Miranda warnings does NOT require the suppression of the physical fruits of incriminating statements, provided the statements are voluntary (A confesses to killing B and tells officer where he hid the gun. The entire interrogation is found to violate Miranda. A can suppress statement, but NOT gun.).

If a statement is inadmissible due to a Miranda violation, subsequent statements made after obtaining waiver are admissible, provided the initial one was not obtained by use of inherently coercive police tactics offensive 2 DP. If testimony evidence should been excluded as violative of Miranda but admitted & D convicted, guilty verdict will stand if govt. can prove, beyond RD, that error was harmless b/c convicted anyway. Harmless Error Rule.

Question 55

Pretrial Identifications

Types of Pretrial Identifications

Answer 55

Lineups: where witness is asked to identify the perpetrator from a group. Show-ups: one on one confrontation between the witness and the suspect. Photo Arrays: W is shown a series of photos & asked which is suspect.

Question 56

Challenging Pretrial Identification via Denial of Right to Counsel

Answer 56

A right to counsel exists under the Sixth Amendment at (1) lineups, and (2) show-ups that take place AFTER formal charging; however, there is NO Sixth Amendment right to counsel at photo arrays. There is NO 5th Amendment right to counsel under the Miranda doctrine for pretrial identification procedures.

Question 57

Challenging Pretrial Identification via Violation of Due Process

Answer 57

A pretrial identification procedure violates the DP Clause of the 14th when so unreasonable, creates substantial likelihood of irreparable misidentification. Weigh (1) reliability of a suggestive ID, vs. (2) its corrupting effect.

Question 58

Effect of Constitutional Violations in Pretrial Identifications

Answer 58

The remedy for constitution violations in pretrial IDs is the exclusion of a witness’s in-court ID. However, even if there is a constitutional violation in a pretrial ID procedure, an in-court ID will still be allowed if prosecution can prove that it is based on observations of the suspect other than the unconstitutional lineup, show-up, or photo array. To show, prosecution can point to (1) witness’s opportunity to view the D at the crime scene, (2) the certainty of the witness’s identification, OR (3) the specificity of the description given to the police.

Question 59

Grand Juries & Pretrial Detention

Answer 59

Grand juries issue indictments, secret non-public, proceeding. States need not use them & most do not use them.

Question 60

Standard of Proof for Pretrial Detention

Answer 60

The government needs probable cause to (1) bind a defendant over for trial, & (2) detain him in jail before trial.

Question 61

Detention Hearings (Gerstein Hearings)

Answer 61

Probable cause hearing not required for pretrial detention if grand jury issued indictment or Mag is arrest W.

Question 62

The First Appearance

Answer 62

Must be brought before magistrate who (1) advises him of rights, (2) set bail (appeal) & (3) appoint counsel.

Question 63

Trial Rights (Fast Facts)

Evidentiary Disclosure

Answer 63

A prosecutor must disclose to a defendant all material, exculpatory evidence (The Brady Rule).

Question 64

Right to an Unbiased Judge

Answer 64

The right means judge (1) has no financial stake in outcome of case, & (2) has no actual malice towards D.

Question 65

Right to a Jury

Answer 65

D has right to a fair & impartial jury. NC provides right to jury even for petty offense; minimum is 12.

Question 66

Unanimity of Jury Verdicts

Answer 66

In NC, all jury verdicts in criminal cases must be unanimous.

Question 67

Cross-Sectional Requirement of Jury Pool

Answer 67

Jury pool must represent a cross-section of community; all whites does violate if provided pool was diverse.

Question 68

Peremptory Challenges

Answer 68

Peremptory challenges permit both sides to exclude jurors without stating a reason, but cannot for race/gender.

Question 69

Confronting Adverse Witnesses

Answer 69

D has 6th Amendment right to confront W, but no if face confrontation would contravene policy (trauma child).

Question 70

The Right to Effective Assistance of Counsel

Answer 70

D must prove that (1) counsel’s performance fell below an objective standard of reasonableness (errors so serious he was not functioning as counsel), & (2) but for deficiency, outcome of trial would have been different.

Question 71

Guilty Pleas and Plea Bargaining

A Valid Plea

Answer 71

To be valid, judge must establish it was (1) voluntary, and (2) intelligent. Before accepting it, judge must in open court address on record, (1) the nature of the charges, including required elements of the charged offense, AND (2) the consequences of the plea (i.e., that he has waived his right to plead guilty and right to a trial).

Question 72

Withdrawing the Plea AFTER Sentencing

Answer 72

Only if (1) it was involuntary due to defect in the plea-taking colloquy, (2) was jurisdictional defect (wrong court took plea), (3) he wins on ineffective ass counsel OR (4) prosecutor fails to fulfill his party of the bargain.

Question 73

Punishment

Answer 73

The 8th prohibits cruel & unusual punish; penalties grossly disproportionate to seriousness of offense committed

Question 74

Eighth Amendment and the Death Penalty – Statutory Limits

Answer 74

A death penalty statute violates the 8th Amendment if it creates an automatic category for the death penalty.

Question 75

Evidentiary Requirements regarding Death Penalty

Answer 75

In deciding imposing death penalty, jurors must be allowed to consider all potentially mitigating evidence.

Question 76

Death Penalty Exclusions

Answer 76

Not allowed if (1) mental retardation, (2) presently insane, or (3) under 18 at the time offense occurred.

Question 77

Double Jeopardy – Fifth Amendment

Answer 77

Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb by the sovereign.

Question 78

When Double Jeopardy Attaches

Answer 78

Criminal proceedings, NOT civil. In jury trials, attaches when the jury is sworn. In bench trials, attaches when first witness is sworn. With guilty pleas, it attaches when the court accepts D’s plea unconditionally.

Question 79

The Same Offense Requirement

Answer 79

Two offenses are not the same if each contain an element that the other does not. If both same elements, but one has an extra, D can be charged with both if brought at same time. However, neither offense can be brought later.

Question 80

The Same Sovereign Requirement

Answer 80

Double jeopardy bars retrial for the same offense by the same sovereign ONLY. Thus, state and federal government are not the same sovereign; different states are not either. However, municipalities within State are.

Question 81

Exceptions to the Double Jeopardy Rule

Answer 81

Retrial is permitted if there is a hung jury; or if there was a breach of the plea agreement by the defendant.

NC allows retrial based on necessity where prosecution was prejudiced by misconduct by (1) a juror, (2) the defendant, (3) defense counsel, OR (4) one acting at behest of the defendant or his counsel.

Retrial is permitted if successful appeal, unless based on the insufficiency of the prosecution’s evidence at trial.

Question 82

Fifth Amendment Privilege Against Compelled Testimony – “Taking the 5th”

Answer 82

Anyone can plead the 5th & can be asserted in any proceeding in which he testifies under oath. However, the privilege must be asserted at the first opportunity or waived forever (can’t later if asked same question).

Question 83

Scope of Taking the Fifth

Answer 83

The privilege is a testimonial one; does not apply to the state’s use of our bodies (blood for DWI case). Pros cannot make negative comment about D’s decision not to testify, or his invoking right to silence or counsel.

Question 84

Eliminating the Fifth Amendment Privilege – Grant of Immunity

Answer 84

Prosecutor can grant use immunity; bars govt. from using Ds testimony or anything derived from to convict D.

Question 85

Eliminating the Fifth Amendment Privilege – Taking the Stand

Answer 85

By taking stand, D waives ability to take 5th as to anything within scope of cross.

Question 86

Statute of Limitations

Answer 86

The privilege is unavailable if the statute of limitations has run on the underlying crime since, in this circumstance, a witness’s testimony could not expose him to criminal prosecution.