MEE Criminal Procedure

Question 1

4th Amendment

Answer 1

People should be free from unreasonable search and seizures.
Exclusionary rule

Question 2

All warrantless searches conducted by law enforcement officers are unconstitutional unless under exceptions.

ESCAPES

Answer 2

ESCAPES: Exigent circumstances, search incident to arrest, consent, automobile, plain view, evidence from administrative warrant, stop and frisk.

Question 3

Search Incident to a lawful arrest

warrant exception

Answer 3

(1) After a valid arrest, police can search, (2) police can make a protective sweep of area (person and the areas within the person’s reach), (3) search must be contemporaneous in time and place with arrest.
* If arrest is unconstitutional, then search incident to that arrest is unconstitutional as well.

Question 4

Automobile arrest

warrant exception

Answer 4

Police may search passenger compartment incident to arrest if: (a) arrestee is unsecured and may gain access to vehicle, OR (b) police reasonably believe evidence of offense for which person was arrested may be found.

(Gant rule: Police can’t get to the trunk, only passenger compartment.)

Question 5

Search incident to incarceration or impoundment

warrant exception

Answer 5

police may make an inventory search of arrestee belongings, and of an impounded vehicle. (Can search any containers contained within the vehicle)

Question 6

Automobile Exception

warrant exception

Answer 6

Police may search the whole vehicle, including trunk, if PC to believe the car contains evidence of a crime, and any container that may had the item for which PC to search. (probable cause)
* Car may be tow and search later, unless car is in a curtilage (driveway of a suspect’s home).
* If believed that car itself is contraband, may seized it in a public place without a warrant.
* Passenger belongings – Search may extend to packages belonging to a passenger.
* If PC only in a specific container, may not search the rest. (e.g. luggage recently placed in a trunk)

Question 7

Plain View:

warrant exception

Answer 7

Evidence of a crime is immediately apparent & PC. Police officer must be legitimately in premises.

Question 8

Consent

warrant exception

Answer 8

Must be voluntary. Search may be limited by the scope of the consent.
* Persons with apparent equal right to use or occupy property may consent.
* If 2 persons living there and are present, and one objects, no valid consent.
* If co-occupant is removed for unrelated reason, police may act on consent of remaining occupant. (e.g. removed by a lawful arrest)

Question 9

Stop & Frisk:

warrant exception

Answer 9

(1) Reasonable suspicion of criminal activity, (2) may conduct a protective frisk if officer believe the person may be armed and presently dangerous. (weapon or contraband).
* Officer may seize any item that he believes, based in plain feel, is a weapon or contraband.
* If PC arises during investigatory stop, detention may become an arrest, and then can conduct a full search under the exception of search incident to arrest.

Question 10

evanescent evidence, emergency aid and hot pursuit

warrant exception

Answer 10

(1) evanescent evidence: Evidence might disappear quickly if police took time to get a warrant.
(2) Hot pursuit: If fleeing felon, police may make warrantless search and seizure and may pursue suspect into private dwelling.
Rule of thumb – If not within 15 minutes by the fleeing felon, not hot pursuit.
(3) Emergency aid/ community taker: if officer faces emergency that threatens health or safety

Question 11

Public schools searches allowed if:

Answer 11

reasonably grounds necessary. (1) offers moderate chance of finding evidence of wrongdoing, (2) measures reasonably related to search objectives, (3) searches not excessively intrusive in light of age and sex of student and nature of infraction. (e.g. smoking in school grounds).

Question 12

Wiretapping and eavesdropping needs warrant, exception:

Answer 12

(1) unreliable ear, persons assumes risk other person consents to gov monitoring or is an informer, (2) uninvited ear, no 4th amend claim if no attempt to keep conversation private.

Question 13

5th Amendment (confessions)

Answer 13

The 5th Amendment protects against coerced self-incrimination by the government. privilege against compulsory self-incrimination, double jeopardy, Miranda Warnings.

Question 14

6th Amendment (trial related)

Answer 14

right to speedy trial, public trial, trial by jury, confront witness, compulsory process for obtaining, right to counsel.

Question 15

8th Amendment

Answer 15

Prohibition against cruel and unusual punishment, and excessive fines

Question 16

14th Amendment

Answer 16

Due Process Clause

Question 17

Seizure

define

Answer 17

reasonable person would feel they are not free to leave

Question 18

Arrest

Answer 18

police takes a person into custody for prosecution or interrogation

Question 19

Reasonable expectation of privacy? Standing

unreasonable search and seizure

Answer 19

2. Reasonable expectation of privacy: with respect to the place or item seized.
   Standing: (1) should be owned or had a right to possession, (2) person’s home, (3) overnight guest of owner to the place searched.

Question 20

Informational roadblocks are constitutional if:

Answer 20

(1) must stop cars on basis if neutral, articulable standard, (2) designed to serve purpose closely related to problem pertaining to cars and their mobility. (e.g. DUI checkpoint)

Question 21

Warrant requirement for search and seizures? Steps to analyze:

Answer 21

Steps: (1) Gov conduct?, (2) Standing?, (3) Valid warrant?, (4) If no warrant, any exception?

Question 22

D. no expectation of privacy in:

Answer 22

Police Achieved A Glorious Victory Over Her Opponents = P: Paint scrapings A: Account Records A: Airspace G: Garbage V: Voice O: Odors H: Handwriting O: Open fields.

Question 23

Valid warranty reqs.

Answer 23

Probable cause (affidavit to magistrate from officer). Use of informers – totality of circumstances. (a) reliability and credibility, (b) basis for knowledge
Particularity: warrant must include description of place to be searched and items to be seized.

Question 24

Execution of Warrant

Who?

Answer 24

– (1) Only police may execute it, (2) no 3rd parties accompanying police officers unless identifying stolen property, and (3) violation of knock and announce rule will not result in suppression of evidence.

Question 25

good-faith exception regardless of validity of warrant and exceptions

Limitations to exclusionary rule

Answer 25

Police arrest someone erroneously but in good faith. Exceptions to good faith reliance on defective warrant:
* Lacking PC no reasonable police officer would rely on it.
* Lacking in particularity no reasonable police officer would rely on it.
* Officer or prosecutor lied to or misled magistrate
* Magistrate is biased and wholly abandoned neutrality

Question 26

Fruit of the poisonous tree

Answer 26

Evidence obtained from exploitation of unconstitutionally obtained evidence. Also excluded evidence. Also, Each passenger in a car has standing to challenge a stop of the car. If a stop is invalid, under the fruit of the poisonous tree doctrine, evidence obtained as a result of the invalid stop will be suppressed.

Question 27

Exclusionary rule exceptions

evidence not supressed: KINDA

Answer 27

KINDA. Knock and announce. Independent source. 1/2 Negligence. Discovery would be inevitable. Attenuating circumstances.

Question 28

Limitations to exclusionary rule

Answer 28

1. Inapplicable to Grand Jury, unless obtain in violation of the federal wiretapping statute.
2. Good faith exception – Police arrest someone erroneously but in good faith.

Question 29

Evidence excluded but can be used to impeach D. testimony

Answer 29

1. Voluntary confession taken in violation of Miranda.
2. Evidence obtained from an illegal search
3. Knock and announce rule

Question 30

Harmless Error Test

Answer 30

If illegal evidence admitted, conviction should be overturned on appeal unless gov can show beyond a reasonable doubt that error was harmless

Question 31

Confessions req.

Answer 31

Voluntariness – Under totality of circumstances. (Involuntary if official compulsion. Harmless error test applies when involuntary confession was admissible. Meaning no need to be overturned if overwhelming evidence of guilt)

Question 31

6th Amend right to counsel when?

Answer 31

After formal proceedings began (after arraignment) prohibits officer from deliberately eliciting an incriminating statement of D without counsel present. Unless D waive that right and reinitiate.

Question 32

Specific offenses after D. requested Counsel allowed to:

Answer 32

D may be questioned regarding unrelated, uncharged offenses without counsel. (e.g. if burglary charge. D can be asked about other offenses without attorney presence.

Question 33

Remedy to Police if counsel not present after request

Answer 33

• Remedy – harmless error test applies in nontribal proceedings to deprivation of counsel. (e.g. post indictment interrogation). However, if D was entitled to counsel at trial, failure to provide counsel is an automatic reversal of conviction.

Question 34

Miranda Warnings 5th Amendment

Answer 34

(1) right to remain silent, (2) anything said can be used against, (3) right to counsel, (4) if no attorney, one will be appointed. (These warnings must be giving prior to interrogation)

Question 35

Custody:

Answer 35

Custody: (1) No free to movement, (2) D feels constrained, inherently coercive pressure.

Question 36

Interrogation

Answer 36

Interrogation: (1) Words or conduct by police, (2) that should know would elicit incriminating response. Just asking questions is not interrogation. – Miranda warnings are not required before spontaneous statements.

Question 37

Nontestimonial fruits of an unwarned confession

Answer 37

If Miranda were not given purposely, then no admissible. If were not given unpurposely, then admissible.

Question 38

Can interrogate without Miranda warnings if:

Answer 38

Public safety exception: Can interrogate without Miranda warnings if concern for public safety. (e.g. locating hidden gun can cause injury to someone)

Question 39

Double Jeopardy

Answer 39

A person may not be retried for the same offense once jeopardy has attached
* Jeopardy attaches in a jury trial at the empaneling and swearing of the jury.
* In bench trials Jeopardy attaches when the first witness is sworn.
* Commencement of a juvenile proceeding bars a subsequent criminal trial for the same offense.

Question 40

Double Jeopardy: Blockburger Rule

Answer 40

• Under the Blockburger rule, 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 41

Double Jeopardy exceptions

Answer 41

1. Hung jury: when they can’t come to a resolution.
2. Manifest necessity to abort first trial (e.g. medical emergency)
3. D successfully appealed conviction, unless ground for reversal was insufficient evidence to support a guilty verdict.
4. D breached plea bargain
5. If D could have been tried for multiple charges in single trial but chose to have offenses tried separately.

Question 42

Confrontation Clause

Answer 42

Right to confront adverse Ws, is not absolute.
Face to face not required when preventing such confrontation serves an important public purpose. (e.g. protecting child Ws from trauma).

Question 43

Claim that did not have effective assistance of counsel must:

Answer 43

Note!! To raise ineffective counsel claim must have specific deficiencies. Inexperience, lack of time prepare, the gravity of the charges, complexibility and accessibility of Ws is not a deficiency.

Question 44

• Introduction of Co-defendant confession that implicates the other D. Generally inadmissible, unless:

Answer 44

(a) all portions referring to other D can be eliminated, (b) confessing D takes stand and is subject to cross, (c) confession used to rebut D´s claim that confession was obtained coercively.

Question 45

• Prior testimonial statement of unavailable W – generally not admitted unless

Answer 45

(1) W is unavailable, and (2) D had an opportunity to be cross examin the declarant. Same as in evidence: hearsay exception.

Question 46

Pretrial Identification

Answer 46

Right to counsel in post charge line ups.
No right to counsel in photo identifications
D can attack identification If (1) identification is unnecessarily suggestive, and (2) there is a likelihood of misidentification.
exception: independent source of ID

Question 47

Grand Jury Proceedings no rights for:

Answer 47

(a) Conducted in secret (b) D no right to notice (c) No right to counsel (d) No right to evidence excluded (e) No right to challenge subpoena on 4th amend (f) Conviction from indictment issued by grand jury from which minority group excluded will be reversed.

Question 48

Speedy Trial - When deciding whether to grant D’s motion to dismiss for violating D’s right to a speedy trial, the court will consider the PRICE D paid:

Answer 48

P – PREJUDICE in the form of loss of witnesses
R – REASON for the delay
I – Whether D is INCARCERATED during delay
C – Severity of the CHARGE
E – EXTENT of the delay

Question 49

Silence before Miranda warnings …

Answer 49

can be used as evidence against the suspect in court.

Question 50

A FAIR seizure is constitutional

Answer 50

F – Stop & FRISK requiring reasonable suspicion (level 3)
A – Stop & ARREST requiring probable cause (level 4)
I – Stop & INQUIRE (NY) requiring founded suspicion (level 2)
R – Stop & REQUEST info requiring articulable basis (level 1)