Criminal Procedure

Question 1

Warrantless search following an arrest that violates state law

Answer 1

A warrantless search can be conducted following an arrest that violates state law. The police may conduct a search incident to an arrest whenever they arrest a person, even if the arrest is invalid under state law, as long as the arrest was constitutionally valid (e.g., reasonable and based on probable cause)

Question 2

Plain View

Answer 2

For the warrantless seizure of an item under the plain view exception, the police
(1) must legitimately be on the premises where the item is found;
(2) the item must be evidence, contraband, or a fruit or instrumentality of a crime;
(3) the item must be in plain view; and
(4) it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime

It is not required that the item be inadvertently discovered

Question 3

Arrest Warrant/Search of 3rd Party’s Home

Answer 3

Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant for the home, the arrest is still valid but evidence of any crime found in the home cannot be used against the owner of the home because it is the fruit of an unconstitutional search.

Question 4

Seizure

Answer 4

For 4th Amendment purposes, a seizure occurs when a reasonable person would believe that he is not free to leave. The courts consider the totality of the circumstances in making this determination

A seizure requires a physical application of force (e.g., handcuffing or otherwise subduing a person) or submission to an officer’s show of force

ex: If a police officer approaches a suspect and draws her revolver, orders the suspect to stop, and the suspect complies, this will most likely be found to constitute a seizure

NOT A SEIZURE:
- If a police officer turns on his squad car’s overhead lights as the squad approaches a suspect and the suspect runs (no physical application or submission)
- If a police officer approaches a suspect, orders the suspect to stop, and the suspect runs, there is no application of force and no submission to the show of force, which would require, at the least, stopping in response to the officer’s order
- If a police officer boards a bus, asks a suspect for identification and consent to search his luggage, and the suspect agrees, a court would not likely find a seizure for Fourth Amendment purposes. Police officers may ask people for permission to search and for identification; such requests do not involve the physical application of force or submission to a show of force

Question 5

Consent (Parent)

Answer 5

A search of a residence can be based on the voluntary consent of the occupant. Where a a parent has general access to a room occupied by a son or daughter, the parent can give a valid consent to a general search of the room, even if the son or daughter is an adult

Question 6

4th Amendment

Answer 6

The 4th Amendment to the US Constitution provides that people are to be free from unreasonable searches and seizures. Generally, to be reasonable, a search or seizure must be pursuant to a warrant, although there are a number of exceptions to this general rule.

Question 7

5th Amendment Right to Counsel under Miranda

Answer 7

The 5th Amendment right to counsel under Miranda applies only to custodial interrogations by the police or one known to be an agent of the police. The purpose of the rule is to protect the right against self-incrimination by preventing the police from badgering a suspect until he talks. The warnings are intended to offset the coercive atmosphere of custodial police interrogation, and so the right does not apply when the suspect is not in custody or is not being questioned by a police officer or one known by the suspect to be an agent of the police.

If a detainee invoke his Miranda right to counsel, the police may NOT question him about an unrelated crime. All questioning must cease until the accused is provided with an attorney or initiates further questioning himself.
(This is different from the rule for when the detainee merely invokes his right to remain silent - if the police scrupulously honor the request, they can rewarn the accused and later resume questioning about a different crime)*

Invocation of the right to counsel must be unambiguous and specific

Question 8

Miranda Warnings

Answer 8

As a means of protecting the 5th Amendment privilege against compelled self-incrimination, a person must be informed prior to custodial interrogation that:
(1) he has the right to remain silent;
(2) anything he says can be used against him in court;
(3) he has the right to the presence of an attorney; and
(3) if he cannot afford an attorney, one will be appointed for him if he so desires

Note - Miranda warnings do not need to be given verbatim, as long as the substance of the warning is there

Miranda warnings must be given only if the detainee is being questioned by someone known to be working for the police - does not apply where interrogation is by an informant who the defendant does not know is working for the police

Question 9

Right to Confront Witnesses - 6th Amendment (Co-Defendant Situation)

Answer 9

Under the 6th Amendment, a defendant in a criminal prosecution has the right to confront adverse witnesses at trial. If two persons are tried together and one has given a confession that implicates the other, the right of confrontation generally prohibits the use of that statement because the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination. A co-defendant’s confession is inadmissible even when it interlocks with the defendant’s own confession, which is admitted.

Confessions of a co-defendant may be admitted if:
(1) all portions referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement);
(2) the confessing defendant takes the stand and subjects himself to cross-examination regarding the truth or falsity of the statement; or
(3) the confession of the non-testifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, and the jury is instructed as to that purpose (limiting instruction)

Question 10

Effect of Miranda violation

Answer 10

Generally, evidence is inadmissible at trial.
- Statements may still be used to impeach defendant’s testimony (but may not be used as evidence of guilt)
- Nontestimonial fruits of an unwarned Confession: if the police fail to give Miranda warnings and during interrogation a detainee gives the police information that leads to nontestimonial evidence, the evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence will not be suppressed.

*In contrast, an INVOLUNTARY confession cannot be used for any purpose, including to impeach

Question 11

In a criminal trial, what is the minimum number of jurors allowed under the 6th and 14th Amendments?

Answer 11

There must be at least 6 jurors to satisfy the right to a jury trial under the 6th and 14th Amendments

Defendant cannot waive this right

Question 12

If more than _____ months’ imprisonment is authorized, the offense is considered “serious” for determining whether a defendant has a constitutional right to a jury trial

Answer 12

6

An offense is considered serious, making a jury trial a constitutional right, when more than 6 months’ imprisonment is authorized

Question 13

Speedy Trial - 6th Amendment Right

Answer 13

In determining whether a defendant’s right to a speedy trial was violated, under the totality of the circumstances, the court will consider: (LRAP):
(1) Length of the delay;
(2) Reason for the delay;
(3) whether D Asserted his rights, and
(4) Prejudice to the D

*Delays caused by counsel assigned by the court to the defendant should ordinarily be attributed to the defendant and NOT to the state

Remedy for violation = dismissal WITH prejudice

When does the right attach?
- does not attach until the D has been Arrested or Charged

Question 14

6th Amendment Right to Counsel

Answer 14

Applies only after adversary judicial proceedings have begun (e.g., formal charges have been filed)

Question 15

5th Amendment Privilege Against Self-Incrimination

Answer 15

A defendant can refuse to take the stand altogether - and prosecutor cannot comment on defendant’s silence after receiving miranda warnings (violates Due Process), and cannot comment on a defendant’s failure to testify at trial

Exception:
- A prosecutor can comment on a defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that the defendant was not allowed to explain their side of the story

Harmless Error test applies:
- When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies
(i.e., the conviction will not be overturned if the prosecution can show beyond a reasonable doubt that the comments did not affect the outcome of the case) - would need an indication as to the strength of the case against the D in the facts for harmless error to be the correct answer

Right to remain silent does not include the right to protect others from incrimination
- Supreme Court has held that a D’s refusal to cooperate with an investigation of the criminal conspiracy of which he was a member may properly be considered in imposing sentence

Question 16

Probable Cause Definition

Answer 16

Reasonably trustworthy facts that would lead a prudent person to believe that a crime was committed

In terms of arrest:
- trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law

*Probable cause is based on the totality of the circumstances

Question 17

Terry Stops

Answer 17

The police have the authority to briefly detain a person even if they lack probable cause to arrest. If the police have a REASONABLE SUSPICION of criminal activity or involvement in a completed crime, supported by ARTICULABLE facts (not merely a hunch), they may detain a person for investigative purposes. If the police also have reasonable suspicion that the detainee is armed and dangerous, they may FRISK the detainee for weapons

Duration & Scope
- investigatory stops are not subject to a specific time limit - the police must act in a diligent and reasonable manner in confirming or dispelling their suspicions
- the police may ask the detained person to identify themself (state their name) and generally may arrest the detainee for failure to comply with such a request
- the detention will also turn into an arrest if during the detention other probable cause for arrest arises

Property Seizures
- brief property seizures are similarly valid if based on reasonable suspicion

Question 18

Automobile Stops

Answer 18

Generally, police officers may stop a car if they have at least reasonable suspicion to believe that a law has been violated

Police Dogs
- during routine traffic stops, a dog sniff is not a search, so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries
- a dog “alert” to the presence of drugs can form the basis for probable cause to search

Seizure of All Occupants
- an automobile stop constitutes a seizure not only of the driver, but also of any passengers as well
- thus, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop

Police May Order Occupants Out
- after lawfully stopping a vehicle, in the interest of officer safety, the officer may order the occupants of the vehicle to get out. Moreover, if the officer reasonably believes that detainees are armed, the officer may frisk the occupants and search the passenger compartment for weapons, even after the officer has ordered the occupants out

Question 19

2 ways in which searches and seizures can implicate an individual’s 4th Amendment rights

Answer 19

(1) search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; OR
(2) physical intrusion by the government into a constitutionally protected area to obtain information

Question 20

Standing

Answer 20

A person must have standing to object to a governmental search. To have a 4th Amendment right, a person must have their own reasonable expectation of privacy with respect to the place searched or the item seized. The determination is made on the totality of the circumstances, but a person has a reasonable expectation of privacy any time:
(1) the person owned or had a right to possession of the place searched;
(2) the place searched was in fact their home, whether or not they owned or had a right to possession of it; OR
(3) the person was an overnight guest of the owner of the place searched

There is an important “sometimes” category of standing:
- the person owns the property seized - if the person owns the property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched

Question 21

Requirements for a Facially Valid Search Warrant

Answer 21

(1) Probable Cause
- a warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed
- officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officer’s conclusions
(2) Particularity
- a warrant must describe with particularity the place to be searched and items to be seized
- if it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail

*Reliance on a Facially Valid Warrant
- evidence obtain by the police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by PC

*Warrant may be Anticipatory
- a warrant can predict when illegal items may be in a suspect’s home or office. The items need not be on the premises at the time the warrant is issued

Question 22

Execution of Warrant

Answer 22

Only the police may execute a warrant, and it must be executed without unreasonable delay. Police must knock, announce their purpose, and wait a reasonable time for admittance (unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation)

The police may not be accompanied by third parties, unless the third parties are present to aid in identifying stolen property

The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant. Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.

In any case, violations of the knock and announce rule WILL NOT result in the suppression of evidence otherwise properly obtained - the exclusionary rule does not apply

Search of Persons Found on Searched Premises
- a warrant to search for contraband authorizes the police to detain occupants of the premises during a search, BUT a search warrant DOES NOT authorize the police to SEARCH persons found on the premises who were not named in the warrant

Question 23

SILA

Answer 23

Incident to a constitutional arrest (one based on PC to believe that a law has been violated), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence
- the police may also make a protective sweep of the area if they believe accomplices may be present

*The search must be contemporaneous in time and place with the arrest

Question 24

SILA - Automobiles

Answer 24

The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search:
(1) the arrestee is unsecured and still may gain access to the interior of the vehicle; OR
(2) the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle

DUI Arrest justifies Breath (but not blood) Test
- Contemporaneous with an arrest for intoxicated driving, police officers may administer a warrantless breath test to determine the arrestee’s alcohol levels but may not administer a warrantless blood test
- Rationale: a breath test is not very intrusive and leaves no lasting sample with the government, while a blood test requires piercing the skin and leaves the government with a genetic sample.

Physical Attributes of Cell Phone May be Searched, But NOT Data
- because of their strong interest in assuring that arrestees do not have weapons or contraband, police officers may examine the physical attributes of a person’s cell phone upon arrest
- however, officers may not examine the data on a cell phone without a warrant since it cannot be used as a weapon

Question 25

Search Incident to Incarceration or Impoundment

Answer 25

At the police station, the police may make an inventory search of the arrestee’s belongings pursuant to established department procedure. Similarly, the police may make an inventory search of an impounded vehicle

Question 26

Automobile Exception

Answer 26

if the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search
- if a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later - however, if the vehicle is parked within the curtilage of a suspect’s home, the police may not search the vehicle without a warrant

Containers Placed in Vehicle
- if the police have probable cause only to search a container in a vehicle, they may search only the container, not other parts of the vehicle

Question 27

Consent

Answer 27

A warrantless search is valid if the police have voluntary consent. Knowledge of the right to withhold consent is NOT a prerequisite to establishing a voluntary consent. The scope of the search may be limited by the scope of consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends

*Police saying they have a warrant negates consent

Authority to Consent
- Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants
- however, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant
- if a co-occupant has objected to a search and is removed for a reason unrelated to the refusal, the police may act on consent of the remaining occupant, even if the removed co-occupant has refused consent

Question 28

Stop & Frisk

Answer 28

Terry Stop = brief detention for the purpose of investigating suspicious conduct
Terry Frisk = patdown of the outer clothing and body to check for weapons

Standards
- A police officer may stop a person without probable cause for arrest if they have an articulable reasonable suspicion of criminal activity. The officer may require the detainee to state their name, and if the officer also reasonably believes that the person may be armed and presently dangerous, the officer may conduct a protective frisk

Scope of Intrusion
- the scope of the frisk is generally limited to a patdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing

Admissibility of Evidence
- During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on it “PLAIN FEEL,” is a weapon or contraband, and such items are admissible as evidence

Automobile Stop
- if a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may:
(1) conduct a frisk of the suspected person, and
(2) search the vehicle, so long as it is limited to the areas in which a weapon may be placed

Question 29

Public School Searches

Answer 29

A warrant or probable cause is not required for public school officials to search public school students or their possessions - only reasonable grounds for the search are necessary. A school search will be held to be reasonable only if:
(1) it offers a moderate chance of finding evidence of wrondoing;
(2) the measures adopted to carry out the search are reasonably related to the objectives of the search; and
(3) the search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Question 30

Exclusionary Rule / Fruit of Poisonous Tree

Answer 30

Under the Supreme Court’s Exclusionary Rule, unconstitutionally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” (evidence obtained from exploitation of the unconstitutionally obtained evidence) must also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.

Exceptions to Fruit of Poisonous Tree Doctrine (3 INs)
(1) the fruits derived from statements obtained in violation of Miranda
(2) evidence obtained from a source independent of the original illegality
(3) intervening acts of free will on the part of the defendant (part of attenuation)
(4) inevitable discovery - that is, the prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally
(5) violations of the knock and announce rule

Question 31

4 Exceptions to Good Faith Reliance on Defective Warrant

Answer 31

(1) the affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it
(2) the affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it
(3) the police officer or prosecutor lied to or misled the magistrate when seeking the warrant
(4) the magistrate is biased and therefore has wholly abandoned their neutrality

Question 32

Effect Assistance of Counsel

Answer 32

The 6th Amendment right to counsel includes the right to effective counsel. This right extends to the first appeal. Effective assistance of counsel is generally presumed.

An ineffective assistance of counsel claimant must show:
(1) deficient performance by counsel; and
(2) but for the deficiency, the result of the proceeding would have been different (for example, the D would not have been convicted or the sentence would have been shorter)
*The D must point out specific deficiencies and cannot base the claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to counsel.
NOTE: if counsel admits their client’s guilt in the face of the D’s clearly articulated desire to maintain their innocence during the sentencing phase of trial, this structural error mandates a new trial without any need to first show prejudice

Question 33

Double Jeopardy Exceptions Permitting Retrial

Answer 33

Certain exceptions permit retrial of a defendant even if jeopardy has attached:
(1) a state may retry a defendant whose first trial ends in a hung jury
(2) a trial may be discontinued and the D reprosecuted for the same offense when there is manifest necessity (ex: D has heart attack during trial - declare mistrial until he is well enough) to abort the original trial or when termination occurs at the behest of the D on any ground not constituting acquittal on the merits
(3) A state may retry a D who has successfully appealed a conviction unless the ground for reversal was insufficient evidence to support a guilty verdict. Retrial is permitted when reversal is based on the weight (rather than sufficiency) of the evidence. However, on retrial, a D may not not tried for a greater offense than that for which they were convicted.
(4) charges may be reinstated after a D breaches their plea bargain
(5) if a D could have been tried for multiple charges in a single trial, but the D elects to have the offenses tried separately, jeopardy does not attach to the first trial for the other charged

Question 34

2 of the most important things to remember about the 5th Amendment Self-Incrimination Privilege:

Answer 34

(1) only TESTIMONIAL evidence is protected - thus a D has no self-incrimination basis to object to a lineup or other ID procedure - even if they are asked to say certain words (for example, “Your money or your life!”). This procedure does not involve testimonial evidence - the words are used for identification purposes and not as testimony

(2) only COMPELLED testimonial evidence is privileged - thus, if the D produced a writing of their own free will (for example, took incriminating notes of a meeting), the police may seize this writing, or the D may be compelled to produce it by subpoena, because they were not compelled to make the statement originally.

Question 35

Guilty Plea

Answer 35

A guilty plea is a waiver of the 6th Amendment right to trial. To be a valid waiver, the judge must determine on the record that the guilty plea represents a VOLUNTARY and INTELLIGENT choice among the alternative courses of action open to the defendant.

To ensure that this is the case, the judge should make sure that the defendant is informed of:
(1) the nature of the charge and crucial elements;
(2) the maximum possible charge and mandatory minimum;
(3) the right not to plead guilty; and
(4) by pleading guilty defendant waives their right to trial

Question 36

Standing Rule Statement

Answer 36

To raise a Fourth Amendment claim of an unreasonable search and seizure, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. It is not enough merely that someone has an expectation of privacy in the place searched. The Supreme Court has imposed a standing requirement so that a person can complain about an evidentiary search or seizure only if it violates her own reasonable expectation of privacy. The Court has held that a person has a reasonable expectation of privacy any time (1) she owned or had a right to possession of the place searched, (2) the place searched was in fact her home, whether or not she owned or had a right to possession of it, or (3) she was an overnight guest of the owner of the place searched.

Question 37

Waiver of 6th Amendment Right to Counsel

Answer 37

The 6th Amendment safeguards a defendant’s right to counsel at all critical stages of criminal prosecution. Nevertheless, a defendant has a right to represent himself at trial. If he chooses to waive his right to counsel and represent himself, his waiver MUST be knowing and intelligent. A defendant’s waiver is voluntary if the court finds that the defendant has a RATIONAL and FACTUAL understanding of the proceedings against him.
- usually, the court has to offer the defendant some explanation about the proceedings and inquire if the defendant is capable of defending himself and inform him of the rights he is waiving.

*if waiver is not knowing or intelligent = involuntary