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Flashcards in Criminal Procedure Deck (73):


when police, by means of physical force/show o authority, terminate/restrain freedom of movement and D actually submits

Totality of circumstances would lead reasonable person to believe he is not free to leave


Arrest warrant

issued by detached/neutral magistrate upon a finding of probable cause that a crime has been committed and it was the particular defendant who committed the crime


warrantless arrests

(1) public places and (2) felony/misdemeanor in arresting party's presence or (3) police officer may arrest anyone he reasonably believes has committed a crime


Knock and announce

police must generally announce purpose when executing a warrant (unless exigent circumstances); violation does not trigger exclusionary rule


Search warrant

(1) issued by detached/neutral magistrate upon finding of probably cause, (2) supported by oath or affidavit, (3) must describe with particularity places to be searched and items to be seized


REP: home

REP in home and curtilage (proximity of area to home, whether area is included in an enclosure; natural uses to which area is put; steps taken by resident to protect the area from observation of passerby)


REP: open field

No REP in area outside of curtilage even if owner has subject expectation of privacy (fences, no trespassing sings)


REP: overnight guest in home

REP in areas of home where guest has permission to enter; no REP for short term use of home for illegal business purposes (i.e., bagging cocain)


REP: Motel room

REP; clerk's consent is insufficient


REP: business premises

REP; but maybe administrative searches


REP: prison

No REP in prison cell; pretrial detainee may have limited REP in cell; strip search or full body search OK


REP: papers and effects

REP for invasive search (i.e., luggage); but not canine sniff or after transfer to third party


REP: automobiles

REP; checkpoints okay if based on neutral articulable standards and purpose is closely related to issue affecting automobiles (sobriety test OK, drug check NO); immigration stops OK; search for witnesses OK; NO REP for odor from car


REP: abandoned property



REP: physical characteristics

No REP: handwriting; voice sample

DNA; finger printing and photographing are reasonable searches as part of routine booking procedure after arrest supported by probable cause


REP: fly-over

Does not violate REP -> not a search


REP: technology devices

attaching tracking device to person without consent is a search; physically intruding on suspect's property to install a technology device is a search; use of sense-enhancing device not used by public is a search (flashlights, not a a search)


REP: field test of substance

Not a search to test if substance is contraband


Probable cause

(1) officer's personal observation; (2) information from reliable known informant or unknown informant that can be independently verified; or (3) evidence seized during stopped based on reasonable suspicion, discovered in plain view or consensual searches


Attacking truthfulness of affidavid

D can challenge facially valid warrant if D can establish by preponderance of evidence that (1) the affidavit contained false statements that were made by the affiant (police) knowingly, intentionally or with reckless disregard for their truth; (2) false statements were necessary to the finding of probable cause


Anticipatory warrant

probable cause requirement is satisfied when at the time the warrant is issued, there is probable cause to believe that the triggering condition will occur and if that condition does occur, there is a fair probability that contraband or evidence will be found at a particular place


Search incident to lawful arrest

reasonable in scope and incident to lawful arrest; must take promptly after arrest is made


Chimel Standard

wingspan -- includes contemporaneous search of person/immediate surrounding area (pockets/containers large enough to conceal a weapon or evidence of crime)

home -- closets/other spaces immediately adjoining place of arrest in home from which an attack could be launched


Vehicle search incident to arrest

(1) arrestee is within reaching distance of passenger compartment at time of search and may pose an actual and continuing threat to the officer's safety or need to preserve evidence from being tampered with OR (2) reasonable that evidence of the offense of arrest might be found in the vehicle


Exigent circumstances (hot pursuit)

if police have probable cause to believe an individual committed a felony, and are pursuing to arrest him, they have right to enter a private building, search the building and seize evidence found there


Exigent circumstances (emergency)

reasonable apprehension that delay in getting warrant would result in immediate danger of evidence destruction police/public safety or fleeing felon (objective reasonable belief)


Stop and frisk

Stop: reasonable suspicion based on articulable facts that detainee was involved in criminal activity; limited/temporary intrusion on D's freedom of movement

Frisk: pat down person's outer clothing if officer has reasonable suspicion that suspect was/is involved in criminal activity and frisk is necessary for safety


Plain feel exception

If officer conducting valid frisk feels an object whose identify is immediately obvious (probable cause to believe item is contraband), police seize item


Terry stop of a car

After lawful stop of a vehicle, police may search for weapons if: (1) reasonable belief that suspect is dangerous and gain immediate control of weapons; and (2) search of passenger compartment is limited to those areas where a weapon may be placed or hidden

Can order occupants out of a vehicle; can frisk a person if there's reasonable suspicion that the individual has a weapon


automobile exception

probable cause to believe that it contains contraband or evidence of criminal activity; may search anywhere in car that they believe could reasonably hold the contraband, including trunk and locked containers, passengers' belongings


Plain view doctrine

In public view: no REP

In private view: (1) officer is on premises for a lawful purpose; and (2) the incriminating character of the item is immediately apparent


Consent to search

Voluntary (no threats of harm, compulsion, false assertion of authority); no need to inform of right to withhold consent


Exclusionary rule

Evidence obtained in violation of Fourth, Fifth, Sixth amendment may not be introduced at trial to prove guilt. Applies to evidence initially seized as result of government illegality but also secondary derivative evidence from primary taint


Exceptions to exclusionary rule

(1) inevitable discovery (through lawful means); (2) independent source (unrelated to tained evidence); (3) attenuation (passpage of time/intervening events makes chain of causation attenuated); (4) good faith (officer rely on facially valid warrent or existing law); (5) isolated police negligence (must be sufficiently deliberate to trigger rule); (6) failure to knock and announce


Privilege against self incrimination

No person shall be compelled in criminal case to testify against himself; nontestimonial evidence not protected; can be invoked in civil or criminal proceeding if answer provide some reasonable possibility of incriminating D in future criminal proceeding


Fifth amendment in police interrogation

any incriminating statement obtained as result of custodial interrogation may not be used against suspect at subsequent trial unless police inform subject of Miranda rights


Custodial interrogation

Custodial: substantial seizure where D reasonably believes he is not free to leave/otherwise deprived of his freedom in significant way

Interrogation: questions/words/actions likely to elicit incriminating response


Right to counsel (5th amendment)

D must make specific, unambiguous statement asserting his desire to have counsel present


Right to silence

specific, unambiguous statement asserting desire to remain silent (mere silence is not enough)


Exceptions to custodial interrogation

(1) public safety at risk; (2) routine booking questions; (3) undercover police



Prosecution may compel incriminating testimony if it grants immunity to the individual and the individual must testify; immunity only applies to subsequent criminal proceeding (state/federal); not to civil proceeding


Ineffective assistance of counsel

(1) counsel's representation fell below objective standard of reasonableness; and (2) counsel's deficient performance prejudiced D, resulting in unfair/unreliable outcome (mere inexperience, strategy, failure to produce mitigating evidence insufficient)


Conflict of interest

ineffective assistance of counsel due to conflict of interest if: (1) actual conflict; (2) adverse impact (when a plausible alternative strategy /tactic might have been pursued but was inherently in conflict with attorney's other loyalties/interests)


Admissibility of IDs

D must prove ID was permissibly suggestive and substantial likelihood of misidentification

In court ID Okay if court determine it was nonetheless reliable (opportunity to view, degree of attention, accuracy of witness's description, level of certainty, length of time);


Eyewitness ID procedures

Pre-indictment lineup: no right to counsel
Post-indictment lineup: right to counsel; inadmissible at trial if violated

Photo spread: no right to counsel


Grand jury

indictment may be based on hearsay or illegally obtained evidence; may not exclude members of minority races, automatic reversal of indictment


State's duty to disclose

affirmative duty to disclose any material evidence favorable to D that would negate guilty or diminish culpability/punishment. Grounds for reversal if D shows: (1) evidence is favorable to defendant; (2) failure to disclose cause prejudice against D


Right to confrontation

Accused has right to encounter and cross-examine adverse witnesses and be present at any stage of the trial


Confrontation clause and hearsay rule

Out of court statements that are testimonial are barred under the Confrontation clause, unless the witnesses are unavailable and D had a prior opportunity to cross-examine the witnesses


Testimonial statements

Declarant would reasonably expect it to be used in a prosecution; non-testimonial statements are made for the primary purpose of assisting the polic ein the investigation of an ongoing emergency


Bruton rule

Admission of a confession by a non-testifying co-defendant at joint trial violates Sixth amendment; can ask for severance when prosecutor intends to introduce a confession that is hostile to one co-defendant if (1) confession implicates the confessing defendant but is not admissible against non-confessing defendant; and (2) cannot be edited to exclude inculpation of non-confessing D


Apprendi rule

Any fact (other than prior conviction) that can be used to increase statutorily prescribed maximum must be charged in indictment, submitted to jury and established beyond a reasonable doubt


Double jeopardy

Protects against second prosecution for same offense after acquittal/conviction and against multiple punishments for same offense; attaches when jury is impaneled or when first witness is sworn in for a bench trial


Third party consent

Third party consent: can consent to own property search; but D's property only if agency relationship to D or D assumes risk that third party would allow the property to be searched


Consent (jointly held property)

Jointly controlled property: third party can consent if D is not present (even if D previously objected) if she has authority or police reasonably believes she has authority to consent; if D is present and objects, then no searh


Waiver of privilege against self-incrimination

D waives privilege by taking the stand; a witness waives privilege by disclosing self-incriminating info in response to specific question; having taken the stand D cannot assert privilege in response to prosecution's proper examination of his testimony


Effect of imprisonment (custodial interrogation)

Object totality of circumstances test, including consideration of language that is used in summoning prisoner and manner in which interrogation is conducted; not categorically custodial


Transactional immunity

fully protects witness from future prosecution for crimes related to testimony


Use/derivative-use immunity

only precludes prosecution from using witness's won testimony or any evidence derived from testimony against witness (this is the only type constitutionally required to compel witness testimony)


Preemptory challenges

can exercise peremptory challenges in any manner he sees fit unless such exercise violates the Equal Protection Clause. The Equal Protection Clause prevents the use of peremptory challenges for racially or gender motivated reasons.


Right to counsel (6th)

Right to counsel in any case D is cahrged with a felony or is actually sentenced to incarceration (even if sentence is suspended); applies at all critical stages after indictment/formal charge and ends at sentencing stage

automatic refusal if denied counsel at trial


Statement to informants

5th: if suspect is not aware interrogator is police officer; no violation

6th: post-indictment statements made to police informant are inadmissible when police intentionally create situation likely to induct D into make incriminating statements about crime for which he was indicted without assistance of counsel; if informant is just listening in the cell without questioning D, no violation


Jury size

no less than 6; unanimous verdict need if only 6; FRCP require 12 unless waived in writing and approved by court


Double jeopardy (same offense)

Blockburger test: each crime must require a proof of an element that the other does not in order for each to be considered a separate offense


Double jeopardy (different jurisdiction)

does not preclude prosecution by both federal and state government; can be prosecuted by two different states for same conduct; can bring criminal and civil action for same conduct


Double jeopardy (guilty pleas)

a guilty plea to a lesser included offense does not preclude prosecution of greater offense if greater offense has been charged before plea is entered


Double jeopardy (mistrial)

Retrial is okay if mistrial because of manifest necessity (juror ill/dies, hung jury)


Double jeopardy (appeal by defendant)

if conviction is overturned because of an error, can retry defendant

if conviction is overturned because of insufficiency of evidence, cannot retry


Choice of counsel

D who can afford retained counsel are entitled to counsel of their choice as long as lawyer is properly admitted in jurisdiction; available for trial and no other conflicts exist

automatic reversal for erroneously refusal


Right to jury trial

Right to jury trial for serious offenses (carry authorized sentence of more than six months of imprisonment, regardless of actual penalty imposed)


Critical stages

1. Post indictment line-ups and in person IDs

2. post -indictment interrogations, custodial or otherwise

3. arraignment and preliminary hearing to determine probable cause to prosecute

4. plea bargaining, guilty plea and sentencing

5. appeals as a matter of right


Non-critical stages

1. Photo ID

2. pre-charge (investigative) line-ups

3. taking of fingerprints, handwriting exemplars, voice exemplars or blood samples

4. hearing to determine probable cause to detain D

5. discretionary appeals

6. post-conviction proceedings, parol or probation hearing, habeas corpus


Guilty plea

both intelligent and voluntary; judge must determine D knows and understands:

1. nature of charges
2. consequences of plea
3. rights that D is waiving