Flashcards in 2012 & 2012 Cases Deck (122)
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1
Does "natural dissipation" of alcohol in blood constitute a per se exigent circumstance?
No. McNeely S.Ct.
2
Four Prongs of Plain Error Review:
1st Prong: An error occurred.
2d Prong: The error is plain.
3d Prong: The error affects substantial rights, which means D must show prejudice (a reasonable probability that D would have received a lower sentence had the error not occurred)
4th Prong: The error affects the fairness, integrity, or public reputation of judicial proceedings.
3
Two Types of Sentencing Error
Constitutional Error: D’s sentence was increased based upon facts that were not found by the jury or admitted by D.
Statutory Error: The sentence was imposed under a mandatory guideline scheme.
4
Does sharing marijuana for no remuneration constitute and aggravated felony under Immigration & Nationality Act?
No, Moncrieffe S.Ct.
Use "categorical approach" this is NOT everyday understanding of "trafficking" which usually means some kind of commercial dealing
5
Is sexual assault of a child considered a "Crime of Violence"?
Yes, Cabeccera Rodriguez 5th Cirt
It's statutory rape, so yes.
6
Is D entitled to call fact witnesses in habeas proceeding for competency?
No, Green v. Thaler 5th Cir
D had expert witnesses and stipulated med. records
7
Can a court strike a "waiver of appeal" in a plea agreement?
No, Serrano-Lara 5th Cir
Court can only accept or reject
8
In child sex crimes does there have to be proximate cause for restitution?
No, Amy 5th Cir
Statute only requires "proximate result"
9
Can court reopen restitution matter after concluding it is too complex or too many victims to calculate?
No Murray 5th Cir.
10
If court later changes restitution amount, does waiver of appeal bar appealing that issue?
No, Murray 5th Cir.
"plain language of plea agreement must unambiguously apply to claim"
11
Does D have to know that child porn was interstate in nature?
No, Terrell 5th Cir.
12
If prisoner's writ is dismissed for not exhausting appeals can he late file writ after exhausting appeals?
Yes, Strickland v. Thaler 5th Cir
13
Can a court impose a federal sentence to run with a discharged state sentence?
No, Kirklin 5th Cir.
BUT even though judge intended it to work, no harm, because only a few days left on sentence
14
Can a D be convicted of possession of a firearm and ammunition?
No, Meza 5th Cir.
It's multiplicitous and violates Double Jeopardy Clause
15
Can Gov't appeal a court's failure to assess restitution for a victim of child sex crime?
No, Amy 5th Cir.
Only relief for victim is mandamus
16
Does there need to be evidence that driver passed "Left Lane for Passing Only" sign for traffic stop?
Yes, Abney TCA
17
Is North Carolina "Taking Liberties with Children" substantially similar to Texas "Indecency with a Child"?
No, Anderson TCA
18
Where must the "law of parties" be submitted in the jury charge to be considered to apply jury verdict?
It SHOULD be in the application paragraph, BUT being in the abstract portion of the charge is enough to trigger law of parties in hypothetically correct charge
SO, if D offers evidence of lesser included of robbery, BUT NOT lesser included of Agg. Robb. considering law of parties, he's not entitled to lesser charge
Yzaguirre TCA
19
Does a guest in hotel room have standing to challenge search?
Depends, NOT if not registered, no possessions there, and not evidence of intent to stay overnight
Consider TOTALITY of CIRCUMSTANCES
Moore TCA
20
May law enforcement be present when Magistrate reads statutory warning to juvenile?
Yes, Herring TCA
Law enforcement may be present for reading of warnings BUT NOT present when JUV signs confession
21
Can a once found indigent defendant be ordered to later pay court appointed attorney fees?
No, Daniel TCA
Unless there is a new finding that he is not indigent.
22
Is "Possession of ID Info" and "Fail to ID" meant to be read in pari materia?
No, Jones TCA
23
Does "Outcry Statute" allow admission of child's statements on video tape?
No, Bays TCA
38.072 Applies to statements admitted through OUTCRY witness
38.071 Applies to video of unavailable child
24
Does D have standing to challenge search of aunt's backyard where he keeps and takes care of his dogs?
Yes, Betts TCA
D had expectation of privacy, he had permission to keep his dogs there, and he attended them daily.
Yard was fenced and 70 yards from the road
25
For determining "reasonable suspicions" can State rely on what is depicted in video tape if officer didn't see it?
No, Duran TCA
Officer stopped for impermissible reason (fail to yield right of way while officer was speeding), but didn't see D cross line and court found officer didn't see line crossing.
26
Is Padilla retroactive for final convictions before the Padilla ruling?
No, De Los Reyes TCA
Also see, Chaidez S. Ct.
27
Can police keep searching vehicle once person shows up to scene to take vehicle after D's arrest?
No, Cashion Tex. App.-Dallas
BUT SEE McKinnon 5th Cir.
Police policy said nothing about having valid insurance when picking up vehicle, and police said that's why they continued to search...
STANDING may be an issue... These inventories must be conducted in good faith pursuant to reasonable standardized police procedures. See Garza. However, the Fourth Amendment protection against seizures cannot be whittled away by standard police procedures. See Benavides .
28
What is the purpose of an inventory search?
standardized regulations and procedures
(1) protecting the property of the vehicle's owner,
(2) protecting the police against claims or disputes over lost or stolen property, and
(3) protecting the police from danger.
29
Is an officer's subjective intend behind conducting an inventory search a reason for suppression?
No. U.S. v. McKinnon 5th Cir. 2012
No suggestion that officer did not follow police policy for inventory search;
Officer admitted he wanted to search the vehicle for evidence of a crime.
Subjective motivations are irrelevant, so long as there is an objective justification for the search
30
