W & M Rule Statements

Question 1

The Fourth Amendment protects individuals from…

Answer 1

Unreasonable searches and seizures.

Question 2

A violation of the Fourth Amendment, if one occurred, should only result in what?

Answer 2

suppression of any evidence that resulted from the violation.

Question 3

Whether a violation of the 4th Amendment occurred

Answer 3

The inquiry considers the totality of
the circumstances and probable cause exists if the officer has knowledge that would warrant a reasonably prudent person to believe that the person has committed or is committing a crime.

Question 4

Warrantless searches are presumptively…

Answer 4

Unreasonable.

Question 5

Where are officers permitted to search pursuant to a valid warrant?

Answer 5

In the execution of the warrant, officers are permitted to search any places or containers where the object of the search may reasonably be found.

Question 6

Plain View Doctrine - Exception to Search Warrant Requirement

Answer 6

Officers may seize illegal items which they observe in plain view so long as they have a right to be where they observe the items and the items are immediately apparent as contraband.

Question 7

Consent - Exception to Search Warrant Requirement

Answer 7

When a person with actual or apparent authority gives an officer consent to search, it will be deemed a lawful search even without a warrant

Question 8

With regard to the consent exception to the search warrant requirement, where multiple parties have common authority over a premises…

Answer 8

Any one party with authority may grant consent despite the lack of express concurrence by the other parties.

Question 9

Search Incident to Arrest (SIA) - Exception to Search Warrant Requirement

Answer 9

Upon an arrest, a person may be searched and any evidence found during the lawful search may be seized.

It must be reasonable in scope and incident to a lawful arrest.

Question 10

SIA of a Person

Answer 10

Includes contemporaneous search of person/immediate surrounding area including pockets/containers (does NOT include cell phone or laptop unless exigent circumstances exist)

Question 11

SIA of a Home

Answer 11

A protective sweep is permissible.

Question 12

SIA of a Vehicle

Answer 12

Justified if:
-Arrestee is within reaching distance of passenger compartment )weapons or evidence) during search; or
-It is reasonable that evidence of the offense of the arrest might be in the vehicle

Question 13

Automobile Exception - Exception to Search Warrant Requirement

Answer 13

Because vehicles are inherently movable and subject to disappearing, an officer may conduct a warrantless search of an automobile provided that the officer has PC to believe that the vehicle contains contraband or other evidence of a crime

Question 14

Automobile Exception is distinct from a SIA of a Vehicle

Answer 14

Under the automobile exception, the officer may search the whole vehicle, including the trunk.

For a SIA of a vehicle - officer would only be able to search places within wingspan of the D and only if the D is capable of fleeing (i.e., not in handcuff in back of cop car).

Question 15

Evidence seized under any exception to the search warrant is requirement…..

Answer 15

Admissible.

Question 16

A motion to suppress evidence that falls under an exception to the search warrant requirement should be…

Answer 16

Denied.

Question 17

Traffic Stop

Answer 17

An officer may stop a vehicle if they have probable cause that the driver of a vehicle committed a traffic violation in the officer’s view.

Question 18

If a drug-sniffing dog is present at a traffic stop, whether evidence is admissible depends on….

Answer 18

Whether the dog sniffing occurred before the officer concluded or reasonably should have concluded the traffic stop.

Question 19

Pretextual Stop

Answer 19

If the officer has an objectively reasonable suspicion to stop a D after observing what appeared to be D’s traffic violation, the officer’s subjective intent to pull over D is immaterial.

Question 20

Terry Stop

Answer 20

A limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest.

Question 21

Consensual Encounter

Answer 21

Merely approaching a person, but not restricting the person’s movement in any way, does not constitute a detention.

Question 22

When is a terry stop justified?

Answer 22

Reasonable suspicion, based upon articulable facts, that the detainees are or were involved in illegal activity.

Question 23

What is reasonable suspicion?

Answer 23

Based on the totality of the circumstances.

It requires more than a vague suspicion, but less than probable cause, and it need not be based on a police officer’s personal knowledge.

Question 24

When is a “frisk” of a person acceptable?

Answer 24

Where there is a lawful stop (even if no probable cause to arrest) an officer can pat-down the outer clothing of the individual if he has reasonable suspicion the person was involved in criminal activity AND the frisk was necessary for the preservation of his safety and the safety of others

Question 25

Plain Feel Exception - Terry Stop and Frisk

Answer 25

if an officer conducting a valid frisk feels with an open hand an object that has the physical characteristics that make its identity immediately obvious, officer may seize the evidence

Example - probable cause to believe the item in contraband.

Question 26

Terry Stop and Frisk of a Vehicle

Answer 26

Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons if:

(1) Police possess a reasonable belief that the suspect is danger and may gain immediate control of the weapons; AND

(2) The search of the passenger compartment is limited to those areas in which a weapon may be placed or hidden.

Question 27

May the officers order occupants out of a vehicle during a Terry Stop and Frisk?

Answer 27

Yes

Question 28

May the officers search an occupant of a vehicle during a Terry Stop and Frisk?

Answer 28

Yes but they may only frisk the occupants if the officers have a reasonable suspicion that they are carrying weapons.

Question 29

Motion to Suppress Evidence Based on a Stop - Qs to ask yourself

Answer 29

1. Does the individual have standing?
2. If the individual has standing, did they consent to the search?

Question 30

Standing - Motion to Suppress Evidence Based on a Stop

Answer 30

The person must have a reasonable expectation of privacy in the item to be searched.

Question 31

Motion to Suppress Evidence Based on a Stop - does the bailee have standing?

Answer 31

Bailee has reasonable expectation of privacy in a vehicle that he drives on behalf of owner, friend

Question 32

Motion to Suppress Evidence Based on a Stop - if the bailee has standing and consents, what is the officer’s authority when it comes to the search?

Answer 32

Officer has authority to search it without limitations as to the scope or place; so the officer may look anywhere in the vehicle, including the floorboard and glove compartment.

Question 33

Valid Arrest - Warrant

Answer 33

Generally, an officer needs an arrest warrant to arrest a suspect in their own home/privacy.

Question 34

When may an officer make an arrest without a warrant?

Answer 34

If the officer has PC to believe the person has committed a crime.

Question 35

Whether an officer has authority to make a wararntless arrest depends on…

Answer 35

Based on totality of circumstances - if the officer has knowledge that would warrant a reasonably prudent person to believe that the person has committed or committing a crime.

Question 36

Probable Cause for an Arrest when in informant is involved

Answer 36

So long as the information the police received was reliable, as it was not anonymous, no additional corroboration was necessary.

Question 37

Private Citizen - Arrests

Answer 37

NO 4TH AMENDMENT VIOLATION

A private citizen is not a government agent, even if they were previously a narcotics officer, so there is no 4th Amendment protection because it is set out to protect citizens against unreasonable searches by gov’t actors.

If the private citizen is acting on behalf of gov’t agent → 4th Amendment would apply***

Question 38

Miranda Warnings

Answer 38

Once a person is placed in custody and is subject to being interrogated, the officers must FIRST give the D Miranda warnings informing the D of his right to remain silent and a right to a lawyer.

Question 39

Miranda warnings apply when….

Answer 39

(1) a person is in custody
(2) there is an interrogation

Question 40

What is custody - Miranda Warnings

Answer 40

Custody depends on whether a person feels like they are reasonably free to leave an officer’s presence.

If an officer tells the individual he needs to speak with him in the officer’s patrol car, this statement is equivalent to stating that the individual is not free to leave satisfying the custody requirement.

Question 41

What is an interrogation - Miranda Warnings

Answer 41

Defendant’s statements must have been made in response to interrogation and is likely to illicit an incriminating response

Even if the question is not directly related to the crime, if the officer should have understood that a reasonable person would understand the question to be an interrogation, the officer violated this prong.

Question 42

Failure to give Miranda warnings may lead to…

Answer 42

Suppression of the statement at trial.

Question 43

Can a detainee later revoke consent even after they waived their right?

Answer 43

YES

Question 44

How may a detainee assert their right to remain silent or revoke it?

Answer 44

Invocation of the right to remain silent by detainee’s clear statement regarding their desire to stop talking is enough → officers must cease questioning.

EX = “I don’t want to talk anymore” is sufficient to indicate a D’s right to remain silent and the officer must honor that

Question 45

Defendant’s Right to a Jury Trial

Answer 45

D has the right to a trial by jury under the Sixth Amendment

Question 46

Waiver of Jury Trial

Answer 46

No constitutional right is violated by the government’s ability to veto the right of a D to waive a jury trial.

**D does not have a constitutional right to demand a trial by a judge.

Question 47

When may a jury trial be waived?

Answer 47

A jury trial may only be waived with the consent of D, the Commonwealth, and the Court.

Question 48

Can a juvenile waive their right to a jury trial?

Answer 48

A juvenile has the same rights to waive a jury trial as an adult.

Question 49

What court must the Commonwealth seek to try a juvenile as an adult?

Answer 49

The Commonwealth can seek to try a juvenile as an adult but they must do so in the juvenile court.

Question 50

What is the procedure for trying a 16 year old juvenile as an adult who is charged with a felony?

Answer 50

1. The juvenile court shall conduct a preliminary hearing and if the court finds probable cause it will certify the charge to the grand jury.
2. If the court finds probable cause, the court loses jurisdiction over the charge and any ancillary charges and the Commonwealth may seek direct indictment.
3. An indictment cures any error or defect in the juvenile court proceeding.
4. The commonwealth must provide notice that it intends to prosecute the juvenile as an adult.

Question 51

Spousal Privilege - criminal cases

Answer 51

In VA criminal cases, spouses must be allowed to testify against each other absent rare circumstances where they cannot be compelled to do so.

A D on trial has no right to object to a spouse’s voluntary testimony

Question 52

Confrontation Clause

Answer 52

The confrontation clause of the 6th Amendment guarantees the right of cross-examination, and a D can cross-examine a witness as to any evidence that bears on the credibility of the witness.

A plea bargain in exchange for one’s testimony is highly relevant because it means the witness’ testimony may be based on self interest.

Question 53

What evidence is admissible during sentencing of a D?

Answer 53

Evidence of prior felony convictions are relevant during the sentencing phase.

If the sentencing takes place before a jury, the Commonwealth would be expected to present D’s prior convictions (w/proper notice).

If sentencing before a judge → properly admitted as part of the pre-sentence report.

Question 54

Prior convictions of a D at trial are not admissible as….

Answer 54

Impeachment evidence during the guilty phase of trial where a D does not testify.

Question 55

Appeal from CC to Court of Appeals

Answer 55

(1) D must file a notice of appeal with the Circuit Court where the trial was held within 30 days of entry of the sentencing order (and transmit notice to opposing counsel).

(2) D must also file a copy of the notice of appeal with the clerk of the Court of Appeals along with the filing fee.

Question 56

What must the notice contain for purposes of appeal?

Answer 56

The notice should contain a statement as to whether a transcript will be filed.

If a transcript is to be filed it must be filed with the trial court within 60 days.
The notice must contain the appropriate certificate.

Question 57

How many days does the D have to submit an opening brief after the trial record has been received by the Court of Appeals?

Answer 57

Once the trial record has been received by the Court of Appeals of Virginia, D will have 40 days to submit his opening brief.