NC Criminal Procedure

Question 1

Exclusionary Rule

Answer 1

Evidence seized in violation of the Fourth Amendment, including physical evidence and statements, is inadmissible in criminal proceedings.

Impeachment Exception: Such evidence may be used to impeach testimony given on direct or cross.

Good Faith Exception: Evidence obtained pursuant to invalid warrant will be allowed if a reasonably trained officer would have believed the warrant was valid.

NOTE: NO exclusionary rule in NC due to interpretation of North Carolina constitution.

Question 2

NC Statutory Exclusionary Rule

Answer 2

Evidence excluded if obtained via a “substantial violation” of the NCCPA. Factors to consider are:

1. importance of interest violated
2. extent of deviation from lawful conduct
3. extent to which violation was willful
4. extent to which exclusion will deter future violations

Question 3

Searches

Answer 3

A search is:

1. gov’t intrusion
2. into space or activities
3. where an individual has a reasonable expectation of privacy

NO reasonable expectation of privacy for objects that are “held out to the public.” ** If no REP, then NOT a search**!

Question 4

Expectations of Privacy

(Garbage)

Answer 4

NC law does not consider trash to be automatically “held out to the public.” Must consider factors:

1. Location
2. Exposure to public
3. Was it collected

(Collection destroys expectation of privacy)

Question 5

Plain VIew Doctrine

Answer 5

Police may seize property that is clearly visible in plain view if:

1. police are lawfully positioned; and
2. immediately apparent that evidence is incriminating

NC Distinction: Discovery must be inadvertent!

Question 6

Warrants

Answer 6

Based on probable cause determination by a neutral and detached magistrate.

Must describe with particularity the place to be searched and the items or persons to be seized.

Question 7

NC Warrant Distinctions

Answer 7

Must be executed within 48 hours

Any time of day and night

Must be read to subject

Must be given copy of warrant and affidavit

List of items seized given to subject

Question 8

Knock and Announce

Answer 8

Officers executing a warrant must “knock and announce” their presence and purpose, unless doing so would be futile, dangerous, or inhibitory to their investigation.

Question 9

Probable Cause

Answer 9

Probable Cause satisfied when testimony/affidavit containts facts/circumstances that are still relevant and not out of date, sufficient that:

A reasonable person would conclude it to be more probable than not that evidence of named items or persons will be found.

Question 10

Arrest w/o Warrant

(In Presence of Officer)

Answer 10

If officer has PC to believe person committed a criminal offense in the officer’s presence.

Question 11

Arrest

(Outside Officer Presence)

Answer 11

Must have probable cause to believe the person committed:

• felony
• misdemeanor requiring immediate arrest or to prevent physical harm
• shoplifting offense
• domestic abuse
• violation of order limiting movement connected to terrorism

Question 12

Exceptions to Warrant Requirement

(When are Warrantless Searches OK)

Answer 12

• Exigent Circumstances (preserve evidence, hot pursuit, emergency aid)
• Search Incident to Lawful Arrest
• Consent
• Automobile Exception
• Plain View Exception
• Inventory Search
• Special Need
• Terry Stop or “Stop and Frisk”

Question 13

“Terry Stop” v. “Stop and Frisk”

Answer 13

**Terry Stop: **Brief detention on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest.

“Stop and Frisk”: Limited search of outer garments for weapons if a reasonable and articulable suspicion that the person detained may be “armed and dangerous”

Question 14

Confession Considerations

Answer 14

14th Amendment: Due Process Clause

5th Amendment: Miranda Doctrine (self-incrimination)

6th Amendment: Right to Counsel

Question 15

Confessions

(14th Amendment)

Answer 15

Must be VOLUNTARY

i.e. not the product of police coercion that overbears suspect’s will

Question 16

6th Amendment Right to Counsel

Answer 16

Provides NO protection prior to charges of criminal activity.

Attaches upon formal charge, then applies at all critical stages of prosecution:

• arraignment
• hearings
• police interrogations
• trial

Question 17

Miranda Doctrine

Answer 17

Applies to CUSTODIAL INTERROGATIONS.

Waiver must be knowing and intelligent (i.e. suspect must understand the nature of rights and consequences of waiver) AND voluntary (free of police coercion).

Burden on prosecution to prove valid waiver of Miranda by preponderance of evidence.

Invocation of right to silence: Must be invoked unambiguously and police must “scrupulously honor.”

Invocation of Right to Counsel: Request must be sufficiently clear and all interrogation must cease unless initiated by the suspect.

Question 18

Double Jeopardy

Answer 18

Can’t be charged by the same sovereign for the same offense twice (this includes lesser included offenses).

Attaches at swearing in of jury (jury trial), swearing in of 1st witness (bench trial), or when court accept’s an unconditional guilty plea.

Two offenses are not the same if they each contain an element the other does not.

Question 19

Exceptions to Double Jeopardy

Answer 19

1. Hung jury
2. mistrial for “manifest necessity”
3. successful appeal
4. breach of plea agreement by D

Question 20

Wiretapping

Answer 20

Must be specific with regard to:

• suspected persons
• time
• crime
• conversation

Question 21

Pre-Trial Identifications

Answer 21

These include Line-ups, show-ups, and photo arrays.

6th Amendment right to counsel applies for post-charge lineups.

NC Distinction: A suspect is entitled to counsel whenever subjected to a “non-testimonial identification” order. This includes obtaining any kind of physical specimens, lineups, photographs, handwriting exemplars, etc.