Criminal procedure slides

Question 1

Notably, the 6A RTC by necessity also includes ______ _____ of counsel.

Answer 1

Effective assistance of counsel

Question 2

To obtain reversal on conviction on grounds that counsel was ineffective, ∆ must pass the _______ test.

Answer 2

Strickland test

Question 3

Strickland test?

Answer 3

1. Ineffective counsel so deficient fell below “objective standard of reasonableness.”
2. Prejudiced the defense
3. If not for that prejudice, diff. result.

Question 4

Regarding the ineffective assistance of counsel claim, must show counsel’s performance was so deficient that it….

Answer 4

fell below objective standard of reasonableness + prejudiced the defense.

Question 5

4 possible exceptions to exclusion?

Answer 5

1. Good faith [Leon]
2. Attenuation of the taint [Brown]
3. Independent source doctrine [Murray]
4. Inevitable discovery doctrine [Nix]

Question 6

____ excepetion = Was LE acting in reasonable good faith at time evidence was discovered? [Leon]

Answer 6

Good faith

Question 7

_____ exception:
1. Lack of police misconduct
2. Lack of temporal proximity
3. Intervening factors [Brown]

Answer 7

Attenuation of taint [Brown]

Question 8

________ exception = Evidence discovered initially during an unlawful search may be admissible if it is discovered later through a source “untainted by the initial illegality.” [Murray]

Answer 8

Independent source doctrine

Question 9

______ exception = Would the police have [inevitably discovered] the evidence through legal means if they had not already discovered it unconstitutionally? [Nix]

Answer 9

Inevitable discovery

Question 10

When should exlusionary rule apply in warrant cases?

Answer 10

1. Magistrate rubber stamp
2. Magistrate misled
3. Affidavit lacking
4. Warrant facially deficient

Question 11

If a clerk messes up and tells officer there is a warrant [when there is not] is that officer acting reasonably?

Answer 11

Yes. [Herring v. US]

Question 12

T/F) In order to be valid, a warrant must be issued by a neutral and detached magistrate. HAS TO BE MAGISTRATE CANT BE STATE AG!!

Answer 12

True! [Coolidge]

Question 13

Valid warrant requirement?

Answer 13

1. Supported by PC
2. Police affidavit
3. Neutral and detached Magistrate
4. Describe with particularity areas to be searched

Question 14

True or False. As a general rule, in executing a warrant, the police must knock and announce themselves before entering a dwelling.

Answer 14

True, absent exigent circumstances. [Wilson v. Arkansas]

Question 15

The courts have recognized an exception to the warrant requirement for items that are found in “plain view.” Which of the following statements is incorrect regarding the plain view exception?

A The police must be in a place where they have a right to be.

B The discovery of the contraband must have been “inadvertent.”

C The nature of the item (as contraband) must be “immediately apparent.”

D In general, the police may not move items simply to determine whether they constitute contraband.

Answer 15

B [Horton v. CA]

Question 16

P/V case for traffic stops?

Answer 16

Texas v. Brown

Question 17

This case held that ∆ has right to challenge search warrants when contains deliberate or recklessly false statements.

Answer 17

Franks v. Deleware

Question 18

Franks v. Deleware factors to defeat a warrant?

Answer 18

1. False statements in supporting affidavit
2. False statements knowingly made or in reckless disregard of truth
3. Those statements were necessary for magistrate to find PC

Question 19

T/F) If officers make an arrest for a serious offense that is supported by probable cause and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Answer 19

True [Maryland v. King]

Question 20

This SC case held that police may COLLECT DNA FROM CHEEK from purps arrested for SERIOUS CRIMES and notably DON’T NEED WARRANT IN BOOKING PROCESS.

Answer 20

Maryland v. King

Question 21

The warrantless search of hotel records for general-inspection purposes does not fall under the administrative-search exception to the warrant requirement of the Fourth Amendment. [T/F]

Answer 21

True [City of LA v. Patel]

Question 22

T/F) City ordinance requiring hotels to turn over records without warrant is unconstitutional.

Answer 22

True [City of LA v. Patel]

Question 23

4 exceptions to exclusion rule?

Answer 23

1. GF [Leon]
2. Attenuation of taint [Brown v. ILL]
3. Inevitable discovery [Nix v. Williams]
4. Indp. source doctrine [Murray]

Question 24

When has someone been seized?

Answer 24

Mendenhall = RAP feel not free to leave
Hodari / Torres = When physical restraint used, even if not successful.

M Factors:
1. Use of force
2. Police presence
3. Touching
4. Tone indicating may force compliance

Question 25

Mendenhall factors? 1. 2. 3. 4.

Answer 25

1. Threatening police presence 2. Show of force 3. Physical touching 4. Language indicating compliance may be compelled

Question 26

T/F) Even show of authority sufficient to cause a RAP to not believe she is free to leave does not constitute seizure absent submission.

Answer 26

True

Question 27

Rule in AZ v. Gant?

Answer 27

Police may search a vehicle incidental to arrest if: 1) Reaching distance of car or 2) Reason to believe evidence in there

Question 28

Miranda right to counsel must be _____ and ______ invocation of rights. "Maybe i should talk to a lawyer" doesn't cut it.

Answer 28

Unambiguous and unequivocal

Question 29

Requesting someone other than a lawyer, probation officer, mom, etc., is not a request for a lawyer. [T/F]

Answer 29

True. Under [Davis], RTS or RTC invocation must be: 1. Unequivocal 2. And Unambiguous Note: Miranda invocation is sufficient to also invoke 6A RTC. [Patterson]

Question 30

Does the RTS have to be invoked same as RTC under miranda?

Answer 30

Yes. Unambiguous and unequivocal.

Question 31

If suspect invokes right to remain silent under Miranda?

Answer 31

1. We gotta stop and "SH" 2. Can come back after several hours and give fresh warnings + new waiver. ***Cant come back over and over that is not SH***

Question 32

What is ∆ invokes RTC under miranda?

Answer 32

1. Break off 2. Can reengage if lawyer present or break in miranda custody [14 days]

Question 33

Miranda waiver analysis? Prosecution must prove waiver....

Answer 33

1. Knowing and intelligently 2. Not coerced / voluntary ***TOC analysis*** Prosecution must prove waiver by preponderance of the evidence.

Question 34

T/F) Waivers of miranda can be express or implied, such as talking to agents after you refused to sign the miranda waiver.

Answer 34

True. This is Butler v. NC

Question 35

This case showed that Miranda can be express or implied. IE: Talking to agents after refusing to sign the waiver.

Answer 35

Butler v. NC

Question 36

T/F) Even after [Butler v. NC] a valid waiver will NOT be presumed simply from silence of the accused.

Answer 36

True

Question 37

If a defendant does not invoke his right to remain silent, does he implicitly waive his Miranda rights by making a voluntary statement to police? If yes, cases?

Answer 37

Yes. Berguis v. Thompkins & Butler v. NC both show that waiver does not need be express.

Question 38

When does 6A RTC attach and what does it attach to?

Answer 38

1. When = adversarial proceedings have commenced 2. Offense specific

Question 39

If 6A RTC has attached?

Answer 39

1. Was RTC waived? [Miranda can be used] 2. If not, no "deliberate elicitations." [Henry]

Question 40

Miranda warnings only required when?

Answer 40

[Custodial Interrogation] 1. Custody = arrest or restraint on freedom similar to that. [Thompson v. Keohane] 2. Interrogation = Likely to elicit incriminating response / functional equivalent [Rhode Island v. Innis]

Question 41

Two cases for Miranda?

Answer 41

1. Thompson v. Keohane = Custody is when formal arrest happens or restraint on freedom similar to such an arrest. + 2. Rhode Island v. Innis = Likely to elicit incriminating response or functional equivalent

Question 42

T/F) Once adversarial proceedings have been initiated, 6A RTC must be invoked.

Answer 42

F. Attaches automatically

Question 43

What's important to note about 6A RTC under henry?

Answer 43

Elicitation of incriminating shit is prohibited, even if covert. You can't talk to them, only "passively listen." Custody doesn't matter either.

Question 44

What is the "Wade-Gilbert" rule?

Answer 44

After ∆ has been formally charged, they have 6A RTC at in person line-ups conducted by police.

Question 45

These cases held that post-indictment lineups are a "critical stage" of prosecution.

Answer 45

Wade-Gilbert

Question 46

What happens if a post-indictment lineup is conducted without counsel?

Answer 46

ID may be suppressed -- unless the state can show evidence was based on independent source later. [Murray]

Question 47

This case held that unnecessarily suggestive ID procedures may violate ∆s due process rights under 14A. [Such as taking him to hospital line up in handcuffs]

Answer 47

Stovall v. Denno

Question 48

In this case, police brought Stovall in handcuffs to a hospital show-up where he was ID.

Answer 48

Stovall v. Denno

Question 49

T/F) If a showup is suggestive but the nature of it is is response to an emergency [W may not survive] then it may be appropriate and not violate due process for suggestiveness.

Answer 49

True. Stovall v. Denno

Question 50

Neil v. Biggers factors to determine if eyewitness ID is reliable?

Answer 50

1. Opp to view 2. Degree attention 3. Certainty 4. Accuracy of descrip. 5. Time passed between

Question 51

T/F) Photo IDs are generally constitutional unless the suggestiveness is so extreme that it risks mistaken ID and violates DP.

Answer 51

True! Simmons v. US

Question 52

Due process violations: 1. Started DP anlaysis for suggestive IDs [hosptial emergency] 2. _____ applied it to photo arrays. Hint: JK Simmons 3. ____ showed how repeated ID procedures can violate DP 4. _____ created five factor test

Answer 52

1. Stovall 2. Simmons 3. Foster 4. Neil v. Biggers

Question 53

This case held that even if an ID procedure is suggestive, such as leaving single photo of alleged purp in Officer's office, it may still be admissible if it is reliable under the TOC. The case itself applied Neil v. Biggers factors. [Such as pretrial photo ID by officer who had seen purp before.] This case stands for = "Suggestiveness may be outweighed by relaibility."

Answer 53

Manson v. Brathwaite. Suggestiveness can be outweighed by reliability.

Question 54

Facts: "Glover, an undercover cop, bought drugs from a man in an apartment. He gave a detailed description of the man to other officers, who recognized the man as Brathwaite. A photo of Brathwaite was left in Glover's office, and Glover identified him as the drug seller two days later. This photo was used as evidence in court, and Glover also identified Brathwaite in court."

Answer 54

Manson v. Brathwaite, allowed the evidence under Neil v. Biggers

Question 55

This Court held that "due process only applies to unnecessarily suggest ID procedures orchestrated by LE."

Answer 55

Perry v. New Hampshire

Question 56

Facts: "The police got a call about a man breaking into cars. Officer Clay found Barion Perry holding car-stereo amplifiers. A woman named Nubia Blandon told her neighbor, Alex Clavijo, that she saw someone breaking into his car. When Officer Clay asked Blandon who she saw, Blandon pointed to Perry. Perry was charged with theft and criminal mischief, and he tried to say that Blandon's identification of him was unfair and against his rights. But the court didn't agree with Perry, and he was found guilty."

Answer 56

Perry v. NH, the Court allowed the ID b/c it was not "orchestrated by police."

Question 57

If pretrial procedure violates 6A RTC and due process... can the state use W in court to ID the purp?

Answer 57

Not unless Independent source doctrine [Murray] or attenuation of the taint [Brown] applies.

Question 58

Does 6A RC extend to photo IDs?

Answer 58

No.

Question 59

Is there REOP in physical characteristics? [Platinum teeth]

Answer 59

No [Dionsio]

Question 60

5A privilege against self incrimination protects "testimonial" communications.... does that include personal traits, such as handwriting style, or voice?

Answer 60

No

Question 61

If 6A RTC violated cannot use that evidence at trial... unless?

Answer 61

1. Murray 2. Brown v. Illinois

Question 62

If RTC no apply to photo IDs, what protects ∆?

Answer 62

Suggestive conduct by police violating due process [Simmons]

Question 63

Are miranda warnings required for terry stops?

Answer 63

No, these are seizures, not custody consistent with Thompson v. Keohane.

Question 64

Using informants to get search warrant?

Answer 64

1. Credible? 2. Basis of knowledge? 3. Detailed? 4. Corroborated?

Question 65

For Miranda RTC invocation, when may police reengage?

Answer 65

After 14 day break in miranda custody with valid miranda waiver or when they have lawyer present and agree to speak.

Question 66

Factors for miranda?

Answer 66

1. K & I 2. V 3. Not coerced Must be unequivocally and unambiguously invoked.

Question 67

Define proper "seizure"

Answer 67

1. Mendenhall "would RAP feel free to leave?" + 4 factors 2. Hodarii + Torres Madrid = Physical force even if unsuccessful

Question 68

Does Miranda apply to consenual encounters or Terry stops?

Answer 68

Hell no

Question 69

Relevant law for patdown and recovery of knife?

Answer 69

1. Pat down = Terry stop & frisk which requires RS 2. RS fair possibility = RAS that person A&D or criminal activity underway 3. Limited to outer garnment patdown 3. Must be readily apparrent what it is = MN v. Dickerson "Plain-touch" may not manipulate....

Question 70

Lawful arrest law?

Answer 70

1. PC = fair probability, objective, TOC 2. Enough particularized facts that RAP would find that FP that crime committed or will be committed. 3. May arrest in public space if in presence 4. Need warrant to go in home to effect arrest

Question 71

Gantz permits, after lawful arrest of person in car, police to perform SILA of passenger compartment if...

Answer 71

1. arrestee unsecured near it or 2. rs that crime there

Question 72

T/F) Knock and announce violates does not equate to exclusion of evidence always.

Answer 72

True. Hudson v. Michigan

Question 73

"The exclusionary rule does not apply to violations of the knock-and-announce rule."

Answer 73

[Hudson] v. Michigan

Question 74

ROL: "The passenger of a vehicle in a traffic stop is seized within the meaning of the Fourth Amendment." Note: The court said a traffic stop is a 'seizure' of everyone in the car, not just the driver.

Answer 74

Brendlin v. CA

Question 75

ROL: "A passenger in a car belonging to someone else does [not have a legitimate expectation of privacy] in the car or in items found in the car that [do not belong to him] and thus may not challenge the search of the car or seizure of the items as unconstitutional."

Answer 75

Rakas v. Illinois

Question 76

["The Court said that you can only argue it's illegal if you had a reason to expect privacy in the place searched or thing] taken. In this case, [Rakas was just a passenger and the items weren't his], so he couldn't expect privacy."

Answer 76

[Rakas] v. Illinois

Question 77

Both driver & passenger have standing to challenge stop ofvehicle in which they are occupants, because they are seized.

Answer 77

[Brendlin] v. CA

Question 78

T/F) If car is searched, owner has standing even if not present.

Answer 78

True

Question 79

ROL: "The Fourth Amendment protects an [overnight guest] from a warrantless, nonconsensual entry by police into the residence in which he or she is staying."

Answer 79

MN v. [Olsen]

Question 80

T/F) Temporary visitors in home for commercial purposes have no REOP.

Answer 80

True

Question 81

"Even if police get evidence in a way that's not allowed, sometimes that evidence can still be used in court. This can happen if the connection between the wrong way the police acted and the evidence is weak enough."

Answer 81

Wong Sun 1. Lack of police misconduct 2. Lack of temporal proximity 3. Intervening factors

Question 82

T/F) Under emergency aid exigent circumstance, policy may go into home and respond to danger.

Answer 82

True

Question 83

For protective sweeps under Buii, police need what level of suspciion that dangerous person may be hiding in the home?

Answer 83

RS

Question 84

For drunk driving arrest, may give BAC but not blood test. [T/F]

Answer 84

True

Question 85

TS are investigative stops allowing limited intrusion. What happens if the duration goes for far too long.

Answer 85

Those seizures can become arrests. [US v. Sharpe]

Question 86

ROL: "A detention is not too long in duration to be justified as an investigative stop if police diligently pursue a means of investigation that is likely to confirm or dispel their suspicions quickly, during which time it is necessary to detain the suspect."

Answer 86

US v. Sharpe: However, if you go too long, your risk seizure becoming similar to formal arrest.

Question 87

T/F) For questions of conflicting consent, no trumps yes.

Answer 87

True

Question 88

Valid consent =Freely and voluntarily given. No coercion. Doesn’t need to know can refuse.

Answer 88

Bustamonte

Question 89

Unlawful stop then get consent to search car. Lawful?

Answer 89

Hell no. Stop unlawful then consent is unlawful. FL v. Royer

Question 90

What happens after warrantless arrest?

Answer 90

Person presented to magistrate who determines if PC for arrest.