NC Criminal Procedure Flashcards
Exclusionary Rule
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.
NC Statutory Exclusionary Rule
Evidence excluded if obtained via a “substantial violation” of the NCCPA. Factors to consider are:
- importance of interest violated
- extent of deviation from lawful conduct
- extent to which violation was willful
- extent to which exclusion will deter future violations
Searches
A search is:
- gov’t intrusion
- into space or activities
- 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**!
Expectations of Privacy
(Garbage)
NC law does not consider trash to be automatically “held out to the public.” Must consider factors:
- Location
- Exposure to public
- Was it collected
(Collection destroys expectation of privacy)
Plain VIew Doctrine
Police may seize property that is clearly visible in plain view if:
- police are lawfully positioned; and
- immediately apparent that evidence is incriminating
NC Distinction: Discovery must be inadvertent!
Warrants
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.
NC Warrant Distinctions
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
Knock and Announce
Officers executing a warrant must “knock and announce” their presence and purpose, unless doing so would be futile, dangerous, or inhibitory to their investigation.
Probable Cause
Probable Cause satisfied when testimony/affidavit containts facts/circumstances that are still relevant and not out of date, sufficient that: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.
Arrest w/o Warrant
(In Presence of Officer)
If officer has PC to believe person committed a criminal offense in the officer’s presence.
Arrest
(Outside Officer Presence)
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
Exceptions to Warrant Requirement
(When are Warrantless Searches OK)
- 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”
“Terry Stop” v. “Stop and Frisk”
**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”
Confession Considerations
14th Amendment: Due Process Clause
5th Amendment: Miranda Doctrine (self-incrimination)
6th Amendment: Right to Counsel
Confessions
(14th Amendment)
Must be VOLUNTARY
i.e. not the product of police coercion that overbears suspect’s will
6th Amendment Right to Counsel
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
Miranda Doctrine
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.
Double Jeopardy
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.
Exceptions to Double Jeopardy
- Hung jury
- mistrial for “manifest necessity”
- successful appeal
- breach of plea agreement by D
Wiretapping
Must be specific with regard to:
- suspected persons
- time
- crime
- conversation
Pre-Trial Identifications
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.
