Criminal Procedure

Front 1

3 big 4th Amendment search and seizure issues?

Back 1

1. Whether a search and seizure is governed by the Fourth Amendment?
2. Whether a 4th Amendment search / seizure satisfies constitutional requirements?
3. Evidence gathered in violation of the 4th Amendment is admissible?

Front 2

Is a search and seizure governed by the 4th Amendment?

Back 2

Step 1: Government conduct and
Step 2: invasion of individual's reasonable expectation of privacy REOP

Front 3

Is there Government Conduct?

Back 3

1. publicly paid police: on or off duty
2. private citizens: but only if acting @ the direction of the police
3. privately paid police: but only if deputized w/ the power to arrest

Front 4

REASONABLE EXPECTATION OF PRIVACY: Areas protected from unreasonable searches and seizures?

Back 4

(1) Protected Areas
persons,
papers (personal correspondence),
houses (incl. hotel rooms),
affects (purses, backpacks),

Home-based privacy includes the "area of domestic use" immediately surrounding the house (the curtilage).

Front 5

REASONABLE EXPECTATION OF PRIVACY:
Areas not protected from unreasonable searches and seizures?

Back 5

Unprotected Items --
Certain categories of items are sufficiently 'public' that they carry NO reasonable expectation of privacy:

Patty Achieved A Glorious Victory Over Her Opponents
=
Paint scrapings from car; Account records at bank; Air space (and stuff that can be seen from air); Garbage at curb; Voice; Open fields; Handwriting; Odors from you car or luggage

Front 6

REASONABLE EXPECTATION OF PRIVACY: Challenging the search?

1. Owners of the premises searched?
2. Residents of the premises searched?
3. Overnight guests?
4. Individual using someone else's residence solely for
business purposes?
5. Owners of the property seized?
6. Passengers in cars?

Back 6

To have standing to challenge the lawfulness of a gov. search and seizure, an individual's personal privacy rights must be invaded - not those of a 3rd party.

1. Owners of the premises searched ALWAYS have
standing
2. Residents...ALWAYS have standing (renters, etc.)
3. Overnight guests...ALWAYS have standing, as to
areas the guest would be expected to access.
4. ...soley for business purposes? NEVER
5. Owners of property seized? If you have a reasonable
expectation of privacy in the area from which the
property was seized.
6. Passengers? Only if the passenger has a reasonable
expectation of privacy in teh item searched or
seized.

Front 7

If a search and seizure is governed by the 4th Amendment, does it satisfy constitutional requirements?

Back 7

(Steps 1 and 2 ...)

Step 3. Was the search authorized by a facially valid
warrant?
Step 4. does an officer's 'good faith' save the defective
search warrant?
Step 5. Was the search warrant properly executed by
the police?
Step 6. Is the search valid under any of the exceptions
to the warrant requirement?

Front 8

Was the search authorized by a facially valid warrant?

Back 8

A facially valid warrant meets 2 requirements:

1. Probable Cause: a fair probability that contraband or evidence of crime will be found in the area (hearsay is admissible)

2. Particularity: the search warrant must specify the place to be searched and the items to be seized. Particularity must be specified in the warrant itself - just in an accompanying affidavit is not sufficient.

Front 9

Use of informant's tips to support probable cause for a warrant?

Back 9

Police may rely on informant's tip, even if anonymous. Sufficiency is dependent on corroboration by the police of enough of the tipster's information to allow the magistrate to make a: "common sense practical determination" that probable cause exists.

Front 10

Does an officer's 'good faith' save a defective search warrant?

Back 10

Officer's good faith overcomes constitutional deficits in probable cause and particularity.

Four exceptions:
1. Affidavit supporting the warrant application is eggregiously lacking in probable cause that no reasonable officer would have relied on it.
2. Warrant application is so eggregiously lacking in particularity that no reasonable officer would have relied on it.
3. Officer or D.A. lied to or misled the magistrate who issued the warrant.
4. The magistrate who issued the warrant was biased (he or she wholly abandoned neutrality).

Front 11

Was the search warrant properly executed by the police?

Back 11

Two issues:

1. Did the officers exceed the scope of the warrant?

2. Did the police comply with the Knock and Announce Rule?
Police must knock and announce their presence AND purpose before forcibly entering the place to be searched, UNLESS
the officer reasonably believes that doing so would be FUTILE or DANGEROUS or would INHIBIT the investigation.

Front 12

Is the search valid under any of the exceptions to the warrant requirement?

Back 12

8 Exceptions: ESCAPIST

Exigent circumstances
Search incident to arrest
Consent
Automobile
Plain View
Inventory
Special Needs
Terry stop and frisk

Front 13

EXIGENT Circumstances exception to the warrant requirement?

Back 13

1. Evanescent Evidence - would dissipate or disappear in the time it would take to get a warrant

2. Hot Pursuit of Fleeing Felon --
Police may enter a suspect's home, or that of a 3rd party (into which he has fled) to look for him; during hot pursuit, any evidence of a crime discovered in plain view while searching for the suspect is admissible.

Front 14

SEARCH INCIDENT TO ARREST exception to the warrant requirement?

Back 14

1. Arrest (a/k/a custodial arrest) must be LAWFUL
2. JUSTIFICATION: officer safety and preserve evidence
3. TIMING - search must be contemporaneous in time or place w/ the arrest
4. Geographic scope: may serach the WINGSPAN of the person

Front 15

SEARCH INCIDENT TO ARREST of CARS exception to the warrant requirement?

Back 15

CARS searched incident to custodial arrest:

1. Permissible Scope: interior cabin of the car, including closed containers, but not the trunk.

2. Location: can police search a car after an arrestee has been handcuffed and placed in the squad car? Yes provided he was a recent occupant of the vehicle, even if he was outside the car at the time of arrest.

Front 16

CONSENT exception to the warrant requirement?
...Shared premises? Disagreeing co-tenants?

Back 16

Valid Consent requires:

1. must be voluntary and intelligent
(fact that police don't tell someone they have the right to refuse consent does not make consent invalid)

2. Apparent Authority -
If police obtains consent from a person who they reasonably believe has actual authority to consent to the search, then search is valid (even if they did not have actual authority)

3. Either party may consent to a search of shared premises.

4. Objecting party prevails over a co-tenant w/ equal rights to use/occupy premises if disagreement about whether to consent to search.

Front 17

AUTOMOBILES exception to the warrant requirement?

Back 17

If police have probable cause to believe that contraband or evidence of crime will be found in the automobile, they may search the passenger cabin, trunk, and may open any container that may reasonably contain items for which there was probable cause to search.

Note: Okay if first police pulls over for a routine traffic stop and then develops probable cause to search car.

Search may extend to passenger's belongings.

Front 18

PLAIN VIEW exception to the warrant requirement?

Back 18

3 requirements:

1. Lawful access to the place from which the item can be plainly seen.

2. Lawful access to the item itself.

3. The criminality of the item must be immediatley apparent.

Front 19

INVENTORY SEARCHES exception to the warrant requirement?

Back 19

Inventory seraches are constitutional if:

1. the regulations governing them are reasonable and

2. the search itself complies with those regulations

Front 20

SPECIAL NEEDS exception to the warrant requirement?

Back 20

Special needs of law enforcement, gov. employers and school officials justify an exception to warrant requirement.

1. Random Drug Testing okay in situations including:
RR employees following an impact accident, customs officials responsible for drug interdiction, public school students participating in extra-curricular activities)

2. Probationers' Homes -- okay where police have reasoned grounds to believe that contraband is present or w/out probable cause if authorized by state statute.

3. Gov. Employees Desks, Files -- okay to investigate work related misconduct

4. Students effects in public schools -- okay if to investigate violations of school rules (purses, backpacks)

5. Border Crossings -- okay w/ respect to routine searches of persons and effects (applies to non-citizens and citizens)

Front 21

What is a Terry STOP? Terry FRISK?

Back 21

Terry Stop -- a brief detention or seizure for the
purposes of investigating suspicious conduct.

Terry Frisk -- pat down of the body and outer clothing
for weapons

Front 22

TERRY STOP AND FRISK exception to the warrant requirement - Evidentiary standard?

Back 22

Evidentiary standard: reasonable suspicion -- (less than probable cause)

STOPS - There must be specific and articulable facts that make an officer believe that CRIMINAL ACTIVITY IS AFOOT.

FRISK - There must be specific and articulable facts that a suspect is ARMED AND DANGEROUS.
(frisk justification is officer safety)

Front 23

What can you seize in a Terry frisk?

Back 23

Weapons can always be seized.

If officer finds somethign she recognizes as contraband without manipulating the object she can seize it too.

Front 24

When is a "person" -- 4th Amendment seized?

Street, Airport Concourse, Bus?

Back 24

An individual is seized for 4th Amend. purposes when, based on a totality of the circumstances, a reasonable person would not feel free to leave, or to decline an officer's request to answer questions.

If on street, airport concourse, or bus, consider:
1. Whether officer brandishes a weapon
2. Officer's tone and demeanor.
3. Whether individual was told he had the right to refuse consent.

Front 25

When is an individual being pursued by police seized for 4th Amend. purposes?

Back 25

only if he submits to the officer's authority by stopping or if the officer physically restrains him

Front 26

Who is 4th Amend 'seized' during a traffic stop?

Back 26

The driver and all passengers are seized such that all have the authority to challenge the legality of the stop.

Front 27

Are dog sniffs at traffic stops permissible?

Back 27

Yes provided the sniff does not prolong the stop unreasonably.

....

Front 28

When does the exclusionary rule apply? (Step 7)

Back 28

Evidence, whether physical or testimonial, that is obtained in violation of federal law, is inadmissible in court against an individual whose rights were violated.

Front 29

Exclusionary Rule: Case-in-Chief v. Cross-Examination?

Back 29

Unconstitutionally obtained evidence is excluded from prosecutor's case in chief; it may be introduced to impeach D's testimony on cross-examination.

Front 30

Proceedings where exclusionary rule doesn't apply?

Back 30

1. grand jury proceedings
2. civil proceedings
3. parol revocation hearings

Front 31

Exclusionary Rule: Knock and Announce Violations?

Back 31

Does not require supression of evidence subsequently discovered.

Front 32

Exclusionary Rule: Officer mistakes?

Back 32

Exclusionary rule does not apply to evidence erroniously obtained by an officer when executing a search warrant if his MISTAKE WAS REASONABLE.

Front 33

Step 8: Fruit of the Poisonous Tree?
Definition? Admissible?

Back 33

Definition: Product of an unconstitutional search.

Admissible? -- Derivative evidence NOT admissible UNLESS the prosecution can show a break in the causal link between the original illegality and the criminal evidence that is later discovered.

Front 34

What nullifies a Fruit of the Poisonous Tree problem?

Back 34

3 doctrines:

1. Independent source doctrine: a source for the discovery & seizure of the evidence that is distinct from the original illegality

2. Inevitable discovery doctrine: evidence would necessarily have been obtained by the police lawfully

3. Attenuation doctrine: D's freewill has been restored through the passage of time and intervening events

Front 35

Requirements for Wiretapping?

Back 35

Need a warrant. Warrant only valid if:

1. PROBABLE CAUSE
2. Must name those PERSONS expected to be overheard.
3. Must particularly describe CONVERSATIONS expected to be overheard.
4. Must be for a strict, limited TIME period.

Front 36

Requirements for Eavesdropping?

Back 36

You assume the risk someone you are talking to will not keep your conversation private (wiretap / electronic monitoring).

Front 37

When does an arrest occur?

Back 37

1. When police take a person into custody
2. against his will
3. for interrogation or prosecution

Front 38

When can police arrest?

Back 38

With probable cause

Front 39

For what offenses can police arrest?

Back 39

ALL. Even those only punishable by a monetary fine.

Front 40

What situations are a de facto arrest?

Back 40

When police compel an individual to come to the police station for:
1. fingerprinting
2. questioning

Front 41

When do you / don't you need a warrant to arrest somone?

Back 41

1. Public - Never

2. At HOME - Always need an arrest warrant (unless it's an emergency)

3. Person in home of a third party? -- Need an arrest warrant and a search warrant.

Front 42

Traffic Stop Arrests?

Back 42

"Common Enterprise" Theory:

Where a police officer discovers evidence of crime that suggests a common, unlawful enterprise between the driver and his passengers, the officer may arrest any or all of them, based on the reasonable inference of shared dominion and control over the controband.

Front 43

Constitutional challenges for exclusion of confessions?

Back 43

* Due Process clause of the 14th Amend.

6th Amend right to counsel

5th Amend Miranda doctrine

Front 44

Due Process Clause confession exclusions?

Back 44

Involuntariness / police coercion.

Front 45

6th Amendment Right to Counsel?

Back 45

1. An express guarantee.

2. Attaches when D is formally charged (not upon arrest).

3. The right is offense specific -- (provides no protection for uncounseled interrogation for uncharged criminal activity).

Front 46

5th Amendment Miranda Doctrine?

Back 46

1. Implied right.

2. "You have the right to remain silent, Anything you say can and will be held against you in a court of law, You have a right to an attorney, If you cannot afford an attorney you have the right to have one appointed for you."

3. Not offense specific (so no more questions about anything if suspect lawyers up)

Front 47

When must you Mirandize someone?

Back 47

1. CUSTODY - must Mirandize if the atmosphere is characterized by police domination and coercion such that his or her freedom of action is limited in a significant way.

2. INTERROGATION - any conduct police knew or should have known was likely to illicit an incriminating response

*Exception: if custodial interrogation is prompted by an immediate concern for public safety Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect.

Front 48

Miranda waiver?

Back 48

Unless the public safety exception applies, incriminating testimonial responses obtained through custodial interrogation are admissible only if police first obtain a valid waiver of a suspect's Miranda rights.

Front 49

When is waiver valid?
Who bears burden of waiver?

Back 49

2 core requirements:

1. Knowing and Intelligent -- suspect understands the nature of the rights and the consequences of abandoning them.

2. Voluntary - must not be product of police coercion

Burden of proof: prosecution bears the burden of proof of a valid waiver by a preponderance of the evidence.

Silence and shoulder shrugging are not a valid waiver.

Front 50

Resume questioning later, after suspect invokes right to remain silent?

Back 50

Yes, provided police:

1. scrupulously honor the earlier request not to answer questions and

2. obtain a valid Miranda waiver before initiating questioning.

Front 51

What if suspect requests counsel after being Mirandized?

Back 51

Once a suspect lawyers up, all interrogation must cease unless initiated by the suspect.

Front 52

Exclusion of evidence in violation of Miranda?

Back 52

Inadmissible in the prosecutor's case in chief.

May be used to impeach D's testimony on cross, but NOT the testimony of a 3rd party witness.

Failure to Mirandize a suspect does not require suppression of the physical fruits of unwarned, but voluntary statements.

Front 53

If a statement is inadmissible due to a Miranda violation, are subsequent statements also inadmissible if they are made after obtaining a Miranda waiver?

Back 53

NO, provided the initial Miranda violation was not obtained through the use of inherently coercive police tactics offensive to due process.

Front 54

If testimonial evidence that should have been excluded as violation of Miranda was improperly admitted at trial and the D was convicted, is the court required to vacate the guilty verdict?

Back 54

It Depends. The guilty verdict will stand if the government can prove, beyond a reasonable doubt, that the error was harmless because the D would have been convicted w/out the tainted evidence.

Also applies to improperly obtained physical evidence.

Front 55

Types of Pretrial Identification?

Back 55

1. Line ups
2. Show ups
3. Photo arrays

Front 56

Challenges to pretrial identification?

Back 56

1. 6TH AMENDMENT RIGHT TO COUNSEL: a right to counsel exists under the 6th amendment at line ups and show ups that take place after formal charging.

(no 6th Amendment right to counsel at photo arrays)
(no 5th Amendment right to counsel for pretrial identification procedures)

2. DUE PROCESS: a pretrial identification procedure violates the due process clause of the 14th Amendment when it is so unnecessarily suggestive that there is a substantial likelihood of misidentification.

Front 57

Admissibility of unconstitutional pretrial identifications?

Back 57

1. Exclusion of the witness' in-court identification.

2. Prosecution can avoid this result by proving the in-court identification is based on observations of the suspect other than the unconstitutional pretrial identification.

Factors include:
a) witness opportunity to view the D before the pretrial
ID
b) certainty of the ID
c) specificity of the description provided to the police

Front 58

Grand Juries?
What do they do?
Proceedings Public?
State use?

Back 58

Issue indictments

Procedings are not public

States do not have to use grand juries as part of their charging process - most don't

Front 59

Pretrial detention? First appearance?

Back 59

For pretrial detention, gov. must show probable cause.

Detention hearing: a hearing to determine probable caues is unnecessary to justify pretrial detention if: grand jury has issued an indictment or a magistrate has issued a warrant

Soon after arrest, D must be brought before a magistrate who will advise D of his rights, set bail, and appoint counsel if necessary

Decisions regarding bail are immediately appealable

Front 60

What must a Prosecutor disclose to D?

Back 60

all material exculpatory evidence

Front 61

What is the right to an unbiased judge?

Back 61

J. has no $ stake in the outcome of the trial and

J has no actual malice toward D

Front 62

When does a criminal defendant have the right to a jury trial?

Back 62

when max authorized sentence exceeds 6 months

Front 63

Fewest # of jurors allowed for a criminal trial?

Must jury verdicts be unanimous?

Back 63

6

Yes if 6 jurors used; no if 12 are used.

Front 64

Cross-sectional requirement regarding jurors?

Back 64

the pool from which the jury is drawn represents a cross section of the community; the pool from which the jury is drawn must be appropraitely diverse

Front 65

Peremptory challenges?

Back 65

Permit both sides to exclude jurors w/out stating their reasons for doing so. Cannot be used to exclude based on race or gender.

Front 66

D's right to confront adverse witnesses?

Back 66

Confrontation clause of the 6th Amendment does not apply where face to face confrontation would controvene important public policy concerns (i.e. traumatizing a child witness).

Front 67

Right to effective assistance of counsel?

Back 67

2 prong test for a D claim of ineffective assistance of counsel:

1. consel's performance was deficient AND
2. but for the deficiency, the outcome would have been different

Effective assistance of counsel is presumed - must show specific deficiencies (trial tactics or failure to raise constitutional defenses that are later invalidated will not do it)

Front 68

The Plea Taking Colloquy

Back 68

J. must determine D's plea is voluntary and intelligent. Record must reflect D knows and understands (via the J. or his counsel):
1. the nature of the charge
2. the max. authorized sentence and any mandatory min.
3. D has right to plea not guilty; if he pleads guilty he waived the right to trial

Front 69

When may D w/draw his guilty plea after sentencing?

Back 69

1. Problem w/ plea taking colloquey
2. Jurisdictional defect
3. D prevails in an ineffective assistance of counsel claim
4. P fails to fulfill his part of a plea bargain

Front 70

8th Amendment prohibitions?

Back 70

8th Amend prohibits criminal penalties that are grossly disproportionate to the seriousness of the offense committed (cruel and unusual)

Front 71

When does death penalty statute violate 8th Amendment?

Back 71

A death penalty statute that creates an automatic category for imposition o fthe death penalty.

Jury must be allwoed to consider all potentially mitigating evidence when deciding to impose the death penalty.

No death penalty for:
1. mentally retarded
2. Ds who are presently insane
3. Ds who are under teh age of 18 when the relevant offense occurred

Front 72

When does Double Jeopardy attach?

Back 72

When the...
1. Jury Trial - when the jury is sworn
2. Bench Trial - 1st witness is sworn
3. Guilty Plea - Ct. accepts the plea unconditionally

*Does not apply to civil proceedings.

Front 73

Double Jeopardy?

Back 73

DEFINITION: being put "twice in jeopardy for the same offense of life or limb" by the same sovereign.

1. SAME OFFENSE: Two offenses are not the same offense if each has an element the other does not.
Prosecution for what would be a lesser included offense precludes prosecution for the greater offense. (reverse is true too)

2. SAME SOVEREIGN:
a) state and federal = not the same
b) different states = not the same
c) states and municipalities w/in them = the same

Front 74

Double Jeopardy exceptions?

Back 74

Retrial permitted when:
1. Hung Jury
2. Mistrial for manifest necessity (D needed to be hospitalized midway through the trial)
3. Retrial after a successful appeal
4. A breach of the Plea Bargain by the D.

Front 75

Taking the 5th?

Back 75

5th Amendment privilage against compelled testimony:
1. Anyone may assert
2. Can be asserted in any proceeding where testifying under oath.
3. Must be used at first opportunity or is lost forever.
4. Protects us from compelled testimony only - does not apply to use of evidence from our bodies (blood test, etc.)
5. Prosecution cannot comment on its assertion.

Front 76

How to eliminate the privilage?

Back 76

Privilage is elminated if...
1. Prosecutorial grant of use and derivative use immunity (meaning P can't use your testimony or anything derrived from it to convict you - but may be convicted on evidence obtained prior to grant of immunity)
2. D taking the stand = D waives ability to take the 5th as to anything w/in the proper scope of cross examination
3. Statute of Limitations - privilage is unavailable if SOL has run on all underlying crimes

Front 77

Which amendment prohibits unreasonable search and seizures and represents the exclusionary rule?

Back 77

4th Amendment