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49 Cards in this Set

  • Front
  • Back
What is harmless error?
conviction can be upheld if the conviction would have resulted despite the improper evidence. On appeal the government has the the burden of proving beyond a reasonable doubt that the admission was harmless
What is the general rule for the fourth amendment?
people should be free in their persons from unreasonable searches and seizures
What is a seizure?
when a reasonable would believe that she is not free to leave (totality of the circumstances)
What is an arrest?
occurs when a person is taken into custody against her will for purposes of criminal prosecution or interrogation
What is the genral rule for an arrest?
an arrest must be based on probable cause.

Note: probable cause facts and circumstances sufficient to warrant a reasonable prudent person to believe that the suspet committed a crime.
Do the police need a warrant to arrest in a public place?
No, police need not obtain a warrant before arresting someone in a publiv place.
Do the police need a warrant to arrest someone in their home?
Yes, police must have an arrest warratn to effect a nonemergency arrest of a person in his home.
In NC, when can a person be arrested witout warrant?
probable cause that a person has:

1. committed a felony

2. committed a misdemeanor and will not be apprehended, or will cause damage ro harm to property, himself, or other unless arrested

3. has comitted shoplifting

4. has committed domestic violence
Who can issue a warrant?
magistrates, clerks, judges and justices based on proable causes
What is a terry stop?
if an officer has reasonable suspicion he may briefly detain a person for an investigative purpose. If the officer has a reasonable suspicion that a person is armed and dangrous, he may conduct a frisk to ensure the detainee has no weapons.
What is the rule for warrantless searches of an automobile?
a police officer may make a warrantless search of an automobile if there is probable cause to believe that the automobile contains evidence of a crime and it is likely that the automobile will be unavailable by the time a search warrant is obtained.
What does offer need in order to conduct a Terry Stop
In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion ... . And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of seizure or the search ''warrant a man of reasonable caution in the belief'' that the action taken was appropriate
What do the police need to stop an automobile?
Therefore, the officer must have, at least, an ''articulable and reasonable suspicion'' that some violation of the law has or will occur before the motorist's car can be stopped
What is the rule for sobriety roadblocks?
1. Develop a systematic plan in advance that takes into account the likelihood of detecting impaired drivers, traffic conditions, number of vehicles to be stopped, and the convenience of the motoring public.

2. Designates in advance the pattern both for stopping vehicles and for requesting drivers that are stopped to submit to alcohol screening tests. The plan may include contingency provisions for altering either pattern if actual traffic conditions are different from those anticipated, but no individual officer may be given discretion as to which vehicle is stopped or, of the vehicles stopped, which driver is requested to submit to an alcohol screening test.

3. Marks the area in which checks are conducted to advise the public that an authorized impaired driving check is being made.
Can a police have a stop for investigating a crime?
The United States Supreme Court determined that the establishment of a roadblock by police officers to question drivers about a prior crime which occurred in the area did not violate the Fourth Amendment. 263 Under this Fourth Amendment interpretation, the newly recognized ''information seeking highway checkpoint stop'' is to be narrowly applied and tailored to satisfy important criminal investigative interests
Can the police stop someone from entering his or her home, in order to get a warrant?
officer may detain a person fro a reasonable time or prohibit him from going into his house while they obtain a warrant (2 hours ok)
When does Fourth Amendment apply?
must be a reasonable expectation of privacy
Who has standing for a Fourth Amendment violation?
must be a reasonable expectation of privacy to your own items/house not someone else. A person has a reasonable expectation of privacy and automatic standing anytime:

1. she owned or had a right to possession of the place searched

3. or was an overnight guest
When there is not an expectation of privacy?
No expectation of privacy for objects held out to public such as:

1. garbage on the curb

2. smell of luggage

3. one's handwriting

4. paint on the outside of the car

5. account records held by bank

6. monitoring a cars movement on public road are in your dirveway.
In NC, what is the expectation of privacy of garbage?
1. location of the trash

2. the extent to which it was exposed to the public

3. whether it was picked up the collection sevice before being turned over to the police
What is the open field doctrine?
no reasonable expectation for areas outside the curtiledge
What is the rule for plane observation?
police may fly over a field to observe with the nake eye things in your ard.
What are the requirements for a warrant?
1. issued by a neutral and detached magistrate

2. based on probable cause

3. particularly describe the place to be searched and items to be seized.
What is the rule for informants in when issuig a warrant?
totality of circumstances--probable cause must be sufficient based on the totality of circumstances
In NC, when must a warrant be executed?
In NC a warrant must be exercised within 48 hours after it is void or it is void
What is the knock and announce rule?
Officer must knock and announce her authority and purpose and await admittance for a reasonable time before using force to gain entry.

Note: if the officer has a reasonable suspicion that knocking and announcing would be dangerous or futile or that it would hurt the investigation, or that things will be destroyed does not have to knock
In NC what is a non-testimonial order?
requires suspet to appear for ID procedures

1. order may be issued only by a judge upon request of the DA upon affidavits establishing

(i) probable cause to believe that a crime punishable by more than 1 year imprisonment has been committed

(ii) reasonable grounds to suspect that the named person committd the offense and

(iii) the results will be material aid determining whether the person committed the offense

2. defendatn must be avised of his rights before the procedure and is allowed to have his attorney present
What are the exceptions to searches with warrant?
1. search incident to an arrest

2. automobile

3. plain view

4. consent

5. stop and frisk

6. hot pursuit

7. administrative inspections
What is a search incident to a lawful arrest?
police may coduct a search after a lawful arrest

police may search the person and areas into which he may be able to obtain weapons or destroy evidence (wingspan)

police may make a protective sweep of the area beyond the defendant's wingspan if they believe accomplices may be present
What is an automobile exception for search without a warrant?
if the police officer has probable cause to beleive that a car contains contraband, weapons or other evidence of a crime they may search the car without a warrant, or if the cops have probable cause to believe that the car itself is contraband, it may be seized from a public place.
Under the automobile exception where can the officer search?
1. cp[s cam search the entire car including the trunk an dall containers that may contain the object in which they are searaching for.

2. if a person placing a container in their car, the cops think the container contains something illegal, the cops can only search the container, unless some time has passed, then they may search the entire ar under the assumption that the person has moved the illegal object somewhere in teh car.
What is plain view in NC?
police may have a warrantle seziure when they are:

1. are legitimately

2. discover evidence, fruits or instrumentalities of crime or contraband

3. see the evidence in plain view

4. hav probable to believe that the item is evidence

5. inadvertence
What is consent to a search?
warrantless searches may be conducted if cops have voluntary and intelligent consent to do so
In NC, what is needed for consent?
1. the person to be searched

2. the registered owner of a car or the person in appparent control of its operation and contents or

3. a person reasonably apparently entiteld to give or withold consent to search
What are the methds of obtaining evidence that shock the conscience?
1. body searches--must be a reasonable intrusion

(a.) taking a blood sample is a common medical procedure so it only has to be reasonable

(b) but a surgical procedure under a general anesthetic involves signficant risks and is unreasonable
What is the Fifth Amendment?
The Fifth Amendment gives a person the right against testimonial self-incrimination
What is the Sixth Amendment?
6th amendment right to counsel--in all criminal prosecutions the defendant has a right to the assitance of counsel.

Note: the state may not solicit incriminating information without fist obtaining a waiver of the defendants.
What are the rules regarding Miranda Warnings?
Miranda warnings and a valid waiver are prerequisites to the admissibility of any statement made during custodial interrogation
What is custody for the fifth amendment?
custody is would a reasonable person person think they were not free to leave.
What is a waiver?
a waiver must be knowingly, voluntarily and intelligently given.

Note: not silene,
What is the public safety exception for to Miranda warnings?
If the interrogation is reasonable prompted by concern for pbulic safety, responses to the questions may be used in court even though Miranda warnings weren't given.
When does the 6th amendment attach?
When formal proceedings attach (indictment)
What is the rule for pre-trial identification?
a suspect has a right to the presence of ana attorney at any post-chage line up

Note: no right to counsel for handwriting or fingerprints
What is the rule for a pre-trial hearing in NC?
Initial appearance-upon arest person must be taken before a judical official without unecessary delay.
What is the rule for prosecutorial discovery in NC?
state has a duty to diclose material, exculpatory evidence to the defendant. FAilure to do so violates defendant's due process clause
What is the rule for a trial by jury?
the right is only for serious offenses imprisonment for more than 6 months
What are the rules for a right to trial by jury in NC?
NC must be unanimous verdict no matter how many juror

NC in superior court a defendant may not waive his right to a jury trial
When does double jepoardy attach?
jury trials--attaches at the empanelling aand swearing of the jury

Bench trial--attaches at the empanelling and swearing of the jury

Juvenile proceedings--the commencement of a proceeding no right in Civil Proceedings.
What is rule for double jeopardy of the same offense?
General Rule--when 2 crimes don't constitute same offense (different elements)

Note: cumulative punishments of 2 or more offenses constituting the same statutory crime does not violate the prohibition of multiple punishments for the same offense fo the double jeopardy.