Criminal Procedure

Question 1

Consent

Answer 1

Defendant freely and voluntarily consents to a search

• Consent must be knowing, intelligently and voluntarily given

Totality of the circumstances test

Question 2

Plain View

Answer 2

Police are:

1) Lawful vantage point
2) See in plain view evidence whose incriminating character is immediately apparent (w/o further manipulation)
3) Have lawful right of access to the object

They may seize the evidence and it will be admitted

Question 3

Plain Smell

Answer 3

If police smell illegal evidence, the may seize the evidence

• Burnt marijuana has been deemed to be so distinct so as to permit the police upon smelling burnt marijuana to search for and seize it

Question 4

Plain touch/feel

Answer 4

1) Validly frisking for weapons
2) Feels object which is immediately upon touch apparent to be contraband w/o further manipulation
3) the officer may seize the object

Question 5

Stop & Frisk

Answer 5

Evidence obtained during valid terry frisk is admissible

Upon reasonable suspicion may stop and further upon reasonable suspicion to believe that defendant is armed

Question 6

Border & Customs Searches

Answer 6

Searches conducted at the international border or at a functional equivalent are not subject to 4th amendment protections.

Airports at VI are considered functional equivalents of international border, even coming or leaving the islands, to or from a foreign country, or any other place in the US

Question 7

Exigency

Answer 7

A situation that demands unusual or immediate action.

• Hot pursuit
• Destroying evidence

Drunk driving and dissipating BAC not necessarily exigent circumstances allowing warrantless blood draw

Question 8

Automobiles

Answer 8

Police can seize and search a vehicle if probably cause exists to believe it contains evidence of criminal activity

Question 9

Checkpoints

Answer 9

• Unconstrained discretion
• Empirical evidence

Check points are ok if:
1) Do no involve unconstrained exercises of discretion by police officers

• Must be based on empirical evidence, pursuant to written guidelines, and no unbridled discretion by police as who to stop

Question 10

Search of automobile due to probable cause

Answer 10

Now police can search any part of automobile that may contain contraband including trunk, glove compartment, and closed containers

Question 11

Automobile exception

Answer 11

Arises due to mobility of car and due to lesser degree of privacy interest that one has in auto as opposed to residence given that cars are heavily regulated

Question 12

Incident to arrest in car

Answer 12

Constitutional if:

1) Reaching distance of the vehicle during the search
2) Police have reason to believe that the vehicle contains evidence relevant to the crime of the arrest

Not after arrest has been secured and cannot access vehicle

Question 13

Inventory search

Answer 13

“Established Routine”

Search of property lawfully seized and detained in order to ensure that it is harmless, to secure valuable items, and to protect against false claims of loss or damage

Standardized criteria or established routine

Question 14

Administrative inspection

Answer 14

“Pervasive regulatory scheme”

Inspection of a business premises conducted by authorities responsible for enforcing a pervasive regulatory scheme

Question 15

Seizure of the person incident to a search warrant

Answer 15

Found to be reasonable under 4th amendment b/c limited intrusion on personal liberty is outweighed by special law enforcement interests at stake

Thus, any in immediate vicinity while search warrant is conducted can be detained while police conduct warrant

Question 16

Seizure of the person

Answer 16

1) Voluntary - mere encounter
2) Brief detention - investigatory det
3) Arrest

Question 17

When is a person seized

Answer 17

Taking into account all of the circumstances surrounding the citizen/police encounter the police conduct would have communicated to a reasonable person that he was not free to ignore the police and go about his business

restrained the liberty of cit and person has submitted to show of authority

Question 18

Voluntary Encounter

Answer 18

No show of force
No 4th amendment protections
Cit can discontinue interaction at any time

Police officer’s request for ID is not a seizure

Question 19

Brief Detention

Answer 19

Police briefly detain a person for investigatory purposes

• Terry stop
• reasonable suspicion based on articulatable facts that the individual stopped has committed or is committing a crime

Question 20

Arrest

Answer 20

Lawful when based on probable cause

Physical force or if absent actual submission to the assertion of authoirty

Question 21

Notice of alibi procedure

Answer 21

Upon written demand by prosecutor defendant w/in 14 days turns over
1) Specific place and witness list

Prosecutor then w/in 14 days of trial turns over list of witnesses who will be called to establish defendant’s presence at scene of crime.

Continuing duty to disclose up to date of trial

Question 22

Notice of insanity

Answer 22

Must file notice of insanity defense w/in time provided by count for pre trial motions

Failure to raise = waiver

Notice of intention to call expert testimony of mental condition must also be filed (if applicable)

Question 23

Mental examinations of defendant

Answer 23

Competency to stand trial
18 USC 4241

18 USC 4242 Determination of existence of mental disease at the time of the offense

Question 24

Insanity defense sua sponte

Answer 24

Court must first determine that the evidence as to defendant’s mental responsibility at the time of the crime, and then conduct a Frendak Inquiry

Question 25

Frendak Inquiry

Answer 25

1) Is defendant presently competent to stand trial 2) Based on present mental capacity the defendant could intelligently and voluntarily waive insanity defense 3) evidence of defendant's mental condition at time of offense require imposition of the insanity defense

Question 26

Insanity defense test

Answer 26

Whether at the time of the offense the defendant was mentally ill and committed the act charged against him in consequence of such mental illness Burden to disprove insanity rests with gov't

Question 27

Magistrate Division of Superior Court - Section 123(a) matters

Answer 27

1) Oaths and affirmations 2) warrants and subpoenas 3) order bail or detention 4) small claims 5) forcible entry (landlord tenant) 6) non-felony traffic 7) litter cases (?) 8) probate 9) DV 10) marriage ceremonies 11) M. Criminal cases 12) arraignment and PC hearing

Question 28

Section 123(b)

Answer 28

Magistrates can sit for pretrial motions as designated by superior court judge

Question 29

Section 123(d) matters

Answer 29

Trial by consent of all parties If all parties consent and the presiding judge approves a magistrate may conduct a non-jury trial and enter a judgment appeal from such an order would go directly to VI supreme court

Question 30

Superior court appellate division

Answer 30

The 1st level of appellate review of the magistrate's decisions superior court rule 322 governs such internal review

Question 31

Superior court rule 322 procedure

Answer 31

1) Appealing parties are required to file briefs, transcripts, and possibly a supersedeas bond 2) waiver - the superior court judge may however waive requirement if matter involves a settled issue of law 3) clerk - is required to issue notice to all parties regarding deadlines for completion of the record, completion of briefing, payment of docketing fees request of transcript etc 4) Time limit - parties have 10 days to seek reconsideration or to file a petition of review 5) Magistrates factual findings are reviewed for clear error and conclusions are subject to plenary review

Question 32

Supreme Court

Answer 32

Hears appeal from superior court 1) final judgments and orders 2) certain interlocutory orders

Question 33

Appeal procedure

Answer 33

File appeal w/ supreme counrt clerk 1) Time limit - file notice of appeal w/in 30 days after the entry of judgement order * VI or Gov i a party w/in 60 days * procedural time limit (failure to object means waiver of that objection)

Question 34

Pro se appellant's N.O.A.

Answer 34

Must be liberally construed

Question 35

Supreme court scope of review

Answer 35

Appellant's scope of review is limited to questions that were properly preserved at trial *and* raised on appeal according to the rules of the supreme court Exception plain error standard.