Criminal Procedure

Question 1

4th Amendment Exclusionary Rule

Answer 1

Exclusionary rule prevents the introduction of unlawfully seized evidence at trial against the D.

Question 2

Exceptions to Exclusionary Rule

Answer 2

• Federal habeas corpus review
• grand jury / preliminary proceedings
• bail
• sentencing
• proceedings to revoke parole
• impeaching D
• civil proceedings

Question 3

4th Amendment seizure def

Answer 3

A 4th Am seizure occurs when police, by means of physical force OR show of authority intend to restrain a person’s freedom of movement.

-objective test: seizure if reasonable innocent person would not feel free to leave under totality of the circumstances

Question 4

Arrest warrants reqts

Answer 4

• issued by neutral magistrate
• probable cause that crime was committed
• AND person identified in warrant was involved
• description with particularity D & crime committed

Implicitly authorizes entry into the arrestee’s home to serve the warrant if the police have reason to believe arrestee is present.

Question 5

When is a “search” under the 4th Am?

Answer 5

• govt invades a place
• protected by reasonable expectation of privacy
• OR physically intrudes upon a constitutionally protected area
• to gather information

Question 6

Search warrant reqts

Answer 6

• issued by neutral magistrate
• probable cause (reasonable belief that evidence will be found)
• supported by oath & affidavit
• describe with particularly places searched & items to be seized

Question 7

Hallmark “REOP” contexts

Answer 7

• luggage contents
• hotel rooms
• home (also const’lly protected area)

Question 8

Exceptions to search warrant rent

Answer 8

“SAD SPACES”
- Search incident to lawful arrest
- Administrative search
- Stop and Frisk
- Plain view
- Automobile exception
- Consent
- Exigent circumstances
- Special govt purpose

Question 9

What can be searched (scope) during search incident to lawful arrest?

Answer 9

• Generally, wingspan: arrestee & immediately surrounding area. NOT cellphone/laptops
• If in home: protective sweep including adjoining rooms. OR If reasonable suspicion that others hiding beyond, can be broadened to such spaces
• If in vehicle: eaching distance of arrestee’s passenger compartment that may have evidence OR anywhere, if it is reasonable that evidence of arresting offense might be there
• If inventory search: anywhere if driver arrested, car impounded

Question 10

Administrative search def

Answer 10

Warrant not required for searches used to ensure compliance with administrative regulations

• public school official search of students
• TSA agent search of travelers’ belongings at int’l borders
• police search of vehicle checkpoints & roadblocks

Question 11

Stop and frisk def

Answer 11

Stop = limited, temporary intrusion on a peron’s freedom of movement is justified if reasonable suspicion based on ** articulable facts** that detainee is involved in illegal activity (totality of the circumstances)

Frisk = an officer without probable cause can pay down a person’s outer clothing if reasonable suspicion that person involved in criminal activity AND frisk necessary for safety
- “plain feel” exception allows officer to seize object felt during frisk, probable cause that obj is contraband

IF, during S&F, offer’s reasonable suspicion grows into probable cause officer can make arrest, conduct full search

Question 12

Plain view def

Answer 12

Officer can seize items in public view without warrant (bc no REOP)

Officer can seize items in private view without warrant if
- police are on premises for lawful purposes
- criminal nature of item is immediately apparent
- officer has lawful access to items

Question 13

Automobile exception def

Answer 13

Police may search any part of a car if there is probable cause to believe that it contains contraband or evidence.
BUT can’t enter home to search car (eg car in garage)

Eg: Police have probable cause that drive had drugs in his vehicle (tip from informant). Make pretextual traffic violation stop, search trunk. Find weapons in trunk, no drugs. Since trunk is area where drugs may be located, it’s a reasonable warrantless search. Seizure doesn’t violate 4th Amendment

Question 14

Consent def (for search warrant exception)

Answer 14

Voluntary consent = given without threat of harm, compulsion, or false assertion of lawful authority.

Third-party consent = 3d party can consent to the search of a suspect’s property ONLY if
- 3d party has agency relationship
- suspect assumed risk of search by giving rights to property to the 3d party

Question 15

Exigent circumstances def

Answer 15

Govt must demonstrate probable cause and exigent circumstances.

Hot pursuit exigency = police in pursuit of suspect. If probable cause suspect committed felony, can only seize “mere evidence” from private building.

Emergency exigency = reasonable apprehension that delay in obtaining warrant risks immediate danger of evidence destruction, threat to public safety, threat that suspect flees.

Question 16

Special govt purpose def

Answer 16

AKA special-needs searches
State interest must be real, current, vital problem that can be effectively addressed through the proposed search

Think: drug testing railroad employees involved in an accident

Question 17

Exclusionary Rule def

Answer 17

Under the “fruit of the poisonous tree” doctrine, evidence initially seized as a result of govt illegality AND secondary derivative evidence resulting from the primary taint, will NOT BE admissible at trial

Question 18

Exceptions to Exclusionary Rule

Answer 18

• inevitable-discovery
• independent source
• attenuation principle (time/intervening events)
• good-faith reliance on warrant (NO if facially defective, improperly executed)
• Isolated police negligence (NO if sufficiently deliberate)
• Knock and announce
• In-court identification

Question 19

5th Amendment privilege against compulsory self-incrimination def

Answer 19

No person shall be compelled in a criminal case to testify against himself

• ANY criminal proceeding
• ONLY testimony evidence (not physical)
• ONLY individuals, not individual officers of companies

Question 20

Miranda Rights Rule

Answer 20

Any incriminating statement obtained as a custodial interrogation may not be used against a suspect at a subsequent trial unless the police informed the suspect of his Miranda rights

-need to re-Mirandize suspect after interrogation stopped for long duration

Question 21

Miranda rights “custodial interrogation” def

Answer 21

Custody = formal arrest or restrain of freedom (whether a reasonable person would believe that she could leave)

Interrogation = questioning, words/actions reasonable likely to elicit an incriminating response. Deceit/fraud during interrogation OK (colander lie detector)

Question 22

Miranda warnings reqts

Answer 22

• given before interrogation begins
• right to remain silent
• any statement can be used against suspect in court
• right of an attorney (appointed if suspect indigent)

Question 23

What happens when suspect makes specific, unambiguous statement asserting desire to have counsel present during an interrogation?

Answer 23

Interrogation must STOP until suspect voluntarily initiates communication OR 14 day break in custody

Question 24

What happens when suspect makes a specific, unambiguous statement asserting her desire to remain silent during an interrogation?

Answer 24

Interrogation must STOP until suspect indicates desire to speak

Question 25

Miranda warnings not req’ed if

Answer 25

- public safety at risk - routine booking questions - police acting undercover

Question 26

6th Amendment right to counsel def

Answer 26

6th Am right affords a D right to the **effective assistance of counsel**. This right automatically attaches at commencement of **formal judicial proceedings** and applies at all critical stages of prosecution. Formal judicial proceedings typically start with: indictment, arraignment, preliminary hearing Non-critical (Right doesn’t apply): pre-charge lineups, photo-array identifications, initial appearances, discretionary appeals, post-conviction proceedings I

Question 27

Remedies for **denial of counsel**, in violation of 6th Amendment right

Answer 27

- conviction automatically reversed (no showing of fairness req’d) - right to withdraw guilty plea - harmless-error analysis for non-trial proceedings - exclusionary rule applies to incriminating evidence (statements AND physical) BUT can still be used for impeachment

Question 28

**Ineffective assistance** of counsel def

Answer 28

6th Am right to counsel may be violated if assistance was ineffective. Reasonable competence is presumed, so D must show that representation: - fell below **objective standard** of reasonableness - prejudiced D, resulting in **reasonable probabiliyt** that **outcome would have been different** - inexperience, bad strategy NOT enough

Question 29

When does D waive 5th Am privilege against compulsory self-incrimination?

Answer 29

If she takes the stand, answers prosecution’s questions

Question 30

When can incriminating testimony be compelled under 5th Amendment?

Answer 30

When prosecution has granted **immunity** to party. Minimum grant of immunity req’d = **use and derivative use**, witness’ testimony cannot be used againsed the witness in a subsequent criminal proceeding

Question 31

What happens when physical evidence obtained resulting from a **non-Mirandized confession**?

Answer 31

Evidence is admissible so long as confession was not coerced

Question 32

“Probable cause” for search warrant def

Answer 32

Probable cause exists when there is a **reasonable belief** (more than mere suspicion) that evidence of a crime is located in the place to be searched. Tip from reliable/known informant OK, but if anonymous, independent verification req’d

Question 33

6th Am Blockburger test

Answer 33

D’s 6th Am right to counsel generally appplies only to the specific offenses at issue. BUT D’s right to counsel during formal judicial proceedings ALSO encompasses offenses that (even if **not formally charged**) would be considered the same offense as the charged crime. THINK: robbery + larceny Offenses NOT the same if each offense has an element that other does not. THINK arson + larceny

Question 34

Constitutional protections under 4th Amendment

Answer 34

- security from unreasonable government searches and seizures

Question 35

Constitutional protections under 5th Amendment

Answer 35

- Prohibition against compelled self-incrimination - Right to grand jury indictment - Double jeopardy clause (bar against multiple persecutions for same offense) - Due process (protection against unfair depreciation of life, liberty, property)

Question 36

Constitutional protections of 6th Amendment

Answer 36

- speedy & public trial - impartial jury (fair cross section of community, unbiased) - confrontation (face to face testimony * cross-examination of adverse witness) - compulsory process (power to subpoena favorable witnesses) - assistance of (effective) counsel