Criminal Procedure

Front 1

What are the 3 types of government conduct for purposes of a seizure?

Back 1

(1) police on or off duty
(2) citizen acting at direction of police
(3) private police with deputized power to arrest

Front 2

When does a seizure occur?

Back 2

When a reasonable person would believe she is not free to leave or terminate an encounter with the government

Front 3

What areas are protected from unreasonable searches and seizures under the 4th amendment? (4)

Back 3

1. person (body)
2. houses (including hotel rooms and area immediately surrounding the house
3. papers
4. effects (purses, backpacks)

Front 4

What areas are not protected from unreasonable searches and seizures?

Back 4

paint scrapings
account records held by a bank
air space (anything seen while flying at commercial level)
garbage left at curb for collection
sound of one's voice
handwriting
ocor coming from car or luggage

Front 5

Who always has standing to challange the search?

Back 5

owners residence, residents of premises, overnight guests

Front 6

Waht is the requirements for a valid warrant?

Back 6

probable cause - a fair probability that contraband or evidence of crime will be found in the searched area

Reasonably Precise - search warrant must specify the place to be searched and items to be seized

Front 7

When is a search warrant facially invalid?

Back 7

When D shows:
(1) a false statement was includedi n the affadavit by the affiant (cop applying for warrant)
(2) the affiant intentionally or recklessly included the fase statement, and
(3) the statement was material to finding probable cause

Front 8

When will an officer's good faith not overcome a constitutional defect in probable cause or precision? (4)

Back 8

1. affidavit was so egregiously lacking PC that no reasonable cop would rely on it,
2. wawrrant so egregiously lacks precision that no cop would relied
3.cop or DA lied or misled the magistrate who issued the warrant
4. magistrate was biased

Front 9

How is a search properly executed by police?

Back 9

Officers stay within the scope and comply with the knock and annouce rule

Front 10

What are the 8 exceptions to the warrant requirement?

Back 10

1. exigent circumstances
2. search incident to arrest
3. consent
4. automobile
5. plain view
6. inventory searches
7. special needs
8. terry stops/frisks

Front 11

Explain Exigent circumstances

Back 11

(a) evanescent evidence - something that would dissipate/disappear in the time it takes to get a warrant
(b) hot pursuit of fleeing felon

Front 12

Explain Search Incident to Arrest

Back 12

arrest must be lawful and the search must be for officer safety or to preserve evidence, search must be contemporaneous in time and place with arrest (timing) and geographic scope (wingspan)
automobiles fall within this exception but only the cabin and not the trunk

Front 13

Explain Consent to Search

Back 13

consent must be voluntary and intelligent, apparent authority is OK if cops reasonably believed consenting party had actual authority

Front 14

Explain the Automobile Search Exception

Back 14

cops need probable cause to believe that contraband or evidence of crime will be found and CAN search the trunk as well as the cabin and containers that would fit what the cops are looking for

Front 15

Explain Plain View Exception

Back 15

cops have lawful access to the place from which the item can be plainly seen, and have lawful access to the item itself, criminality of the item must be immediately apparent

Front 16

What is the standard for a Terry Stop?

Back 16

cop must have a reasonable and articulable suspicion of criminal activity

Front 17

What is the exclusionary rule?

Back 17

physical or testimonial evidence that is obtained in violation of a federal statutory or constitutional provision is inadmissible against the individual whose right were violated

Front 18

What are the 4 exceptions to the exclusionary rule?

Back 18

1. impeachment of D's testimony
2. grand jury and civil proceedings or parole revocation hearings
3. knock and annouce rule violations
4. officer's mistake was reasonable

Front 19

What is the fruit of the poisonous tree doctrine?

Back 19

evidence derived from exploitation of unconstitutionally obtained evidence is inadmissible in the prosecutions case-in-chief

Front 20

How can you get around the fruit of the poisonous tree doctrine?

Back 20

1. independent source
2. inevitable discovery
3. attenuation (free will restored)
4. physical fruits

Front 21

What is the 6th amendment? When does it attach?
How does it apply?

Back 21

Right to counsel, attaches only to formal charges and not to arrests and is offense specific so it provides no protection for unconusiled interrogation of other uncharged criminal activity (jail house buddy)

Front 22

What are the 4 Miranda warnings?

Back 22

right to remain silent, anything you say can and will be held against you, right to an attorney, if you can't afford one the court will appoint one for you

Front 23

When is Miranda necessary?

Back 23

Less than being arrested
When you are in custody and accused of a crime

Front 24

What is custody under Miranda?

Back 24

atmosphere characterized by police domination and coercion such that freedom of action is limited in a significant way (custody in bed)

Front 25

After lawyering up under Miranda, can the police question you regarding other unrelated crimes?

Back 25

Hells no

Front 26

When do you have a 6th amendment right for pre-trial identification?

Back 26

After formal charges and in Line-ups and Show-ups

Front 27

When can D withdraw a guilty plea? (4)

Back 27

1. problem with plea taking colloquy
2. jurisdictional defect
3. D prevails on ineffective counsel claim
4. prosecutor fails to fulfill his part of the dea

Front 28

Explain the same offense requirement of double jeopardy.

Back 28

2 offenses are not the same offense if they each have an element the other does not

Front 29

What are the 5 exceptions to DJ rule that permit retrial?

Back 29

1. hung jury
2. mistrial for manifest necessity (d in hospital)
3. retrail after successful appeal
4. breach of plea bargain by D
5. mistrial granted at D's request on any ground not constituting an acquital on merits

Front 30

Who can assert the 5th amendment?

Back 30

anyone (D, Witness, Party to civil proceeding)

Front 31

What does the 5th apply to?

Back 31

only testimonial privilege not the state's use of our body (ex. blood, urine, drug needle marks)

Front 32

What happens if prosecutor comments on invocation of 5th?

Back 32

Plain Error - even if counsel does not object, the court should step in, if not there is a grave injustice and appellate court can overturn

Front 33

How can you eliminate the use of the 5th amendment?

Back 33

1. use and derivative use immunity - can't be charged for the offense you are testifying about
2. D takes the stand
3. statute of limitations - can't assert of the SOL has run on your offense