Criminal Procedure Summer 2012

Front 1

What are items unprotected from an individual's reasonable expectation of privacy?

Back 1

Anything knowingly exposed to 3rd parties, such as:
Paint Scrapings
Account Records (held by bank)
Airspace
Garbage
Voice
Odors (from your car or luggage)
Handwriting
Open Fields (anything seen in or across the field)

Front 2

What are areas protected by the Fourth Amendment from unreasonable search and seizure?

Back 2

Persons
Houses (including curtilage)
Papers and
Effects (purses, backpacks)

Front 3

Who has standing to challenge the lawfulness of a search or seizure?

Back 3

1. Owner of premises searched
2. Residents of premises searched OR
3. Overnight guests of premises (to the extent the area was expected to be accessed by such guests)

If person owns property seized only have standing if had reasonable expectation of privacy in the area from which the property was seized.

Car passengers only have standing if privacy in area searched/seized (passenger's coat - yes; under driver's seat - no)

Front 4

Can police rely on informant's tips?

Back 4

Yes, even if anonymous, so long as police corroborate tipster's info to allow magistrate to make a "common sense practical" determination that probable cause exists.

Front 5

What requirements are needed for a valid search warrant?

Back 5

1. Probable cause: proof of a "fair probability" that contraband will be found in search area
2. Particularity: warrant must specify place to be searched AND item to be seized
3. Magistrate: must be issued by a neutral and detached magistrate

Front 6

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

Back 6

Yes, unless:
1. Warrant was egregiously lacking probable cause that no reasonable officer would have relied on it
2. Warrant was so deficient in particularity that officers could not reasonably presume it valid
3. Affidavit relied on by magistrate contains knowing/reckless falsities necessary for probable cause
4. Magistrate is biased

Front 7

What is required for a search warrant to have been validly executed?

Back 7

1. Search was confined to those terms and limitations in the warrant;
2. Knock and Announce rule: police knocked and announced purpose/presence prior to forcible entry; unless police thinks doing so would be futile and would inhibit investigation

Front 8

What are the 8 exceptions for a warrantless search to be valid?

Back 8

"ESCAPIST"
1. Exigent Circumstances
2. Search Incident to Arrest
3. Consent
4. Automobile
5. Plain View
6. Inventory
7. Special Needs
8. Terry Stop/Frisks

Front 9

Valid warrantless search exception: what are exigent circumstances?

Back 9

Evanescent Evidence: would dissipate or disappear in time it takes for warrant

Hot Pursuit of Fleeing Felon: can enter suspect or 3rd parties home, into which felon has fled. any evidence found in plain view while searching for suspect is admissible

Front 10

Valid warrantless search exception: what are searches incident to arrest?

Back 10

Contemporaneous in time and place search, made during a lawful arrest may be justified for officer's safety and need to preserve evidence

Search area includes wingspan (body, clothing and containers) w/in arrestee's immediate control W/O REGARD TO OFFENSE FOR WHICH ARREST WAS MADE

Front 11

Valid warrantless search exception: when are automobiles searchable incident to custodial arrest?

Back 11

Once an officer has secured an arrestee, cop can search arrestee's car only if cop has reason to believe the vehicle may contain evidence relating to THE CRIME FOR WHICH THE ARREST WAS MADE.

Scope: interior cabin including closed containers but NOT THE TRUNK

Front 12

Valid warrantless search exception: when does consent provide for a valid search?

Back 12

Consent must be voluntary and intelligent (cop has no need to tell of right to refuse consent)

Police only need apparent authority to search given by someone reasonably believed to be in control (hotel operator/landlord doesn't count)

Any adult resident of a shared premise can consent to search of common areas; any present objecting party trumps the consent

Front 13

Valid warrantless search exception: when can automobiles be searched?

Back 13

Police need probable cause to believe that contraband or evidence of a crime will be found in vehicle. Can be established at any time so long as before the search.

Police may search entire vehicle and may open any package, container or luggage that may reasonably contain the item for which there was probable cause to search for (i.e. can't look for a 32" TV in a glove box)

Front 14

Valid warrantless search exception: what is the plain view exception?

Back 14

Three requirements for seizure of plain view items:
1. must have lawful access to the place
2. lawful access to the item itself
3. criminality of the item must be immediately apparent

Front 15

Valid warrantless search exception: what are inventory searches?

Back 15

Occur in two contexts: booking into jail and vehicle impoundment.

Constitutional if governing regulations are reasonable in scope and search complies with regulations

Front 16

Valid warrantless search exception: what are special needs?

Back 16

Interests of law enforcement, governmental employers and school officials beyond a general interest in law enforcment.

1. Random Drug Tests: permissible for railroad employees, customs agents and public schoolchildren who participate in extracurricular activities (not permissible for suspicionless evidence gathering)
2. Govt employees desks and files permitted if related to work related misconduct
3. Student's effects in public schools: searches of effects permissible to investigate violations of school rules
4. Border Searches

Front 17

Valid warrantless search exception: what are Terry Stops?

Back 17

Brief seizures for purpose of investigating suspicious conduct.
Seizure occurs when person doesn't feel free to leave or to decline cops request to answer questions (look to cop's weapon, tone or demeanor).
Pursued individual only seized if submits to cop or cop physically restrains him.
Both passengers and driver is seized in a traffic stop

Front 18

Valid warrantless search exception: what are Terry Frisks?

Back 18

Pat down of body and outer clothing for weapons justified by cops belief suspect is armed & dangerous.

Weapons can be seized always if found;
Contraband can only be seized if it is recognizable WITHOUT MANIPULATING the object.
Car "frisks" can search passenger cabin limited to areas weapon may be placed or hidden.

Front 19

What evidentiary standard is applied to Terry Stops and Frisks?

Back 19

Reasonable suspicion (less than probable cause); requires specific and articulable facts that inform cop that (i) criminal activity is present/afoot [stop]; (ii) suspect is armed/dangerous [frisk]

Front 20

To what extent can prosecutors use evidence gathered in an unconstitutional search/seizure against D in court?

Back 20

Exclusionary Rule: Evidence physical or testimonial obtained unconstitutionally is inadmissible in court against the individual whose rights were violated.

There are four exceptions.

Front 21

What are the limits on the exclusionary rule for unconstitutionally obtained evidence?

Back 21

1. Unconstitutional evidence is excluded from prosecutor's case-in-chief only; but may be used as impeachment for D's testimony on cross-exam
2. Violation of knock-and-announce rule suppresses nothing
3. Rule doesn't apply to evidence erroneously obtained when executing a search warrant provided an officer's mistake was reasonable
4. Fruit of the Poisonous Tree: can be used if prosecutor shows break in causal link between orig. illegality and later discovered criminal evidence

Front 22

What three ways can a prosecutor break the causal link between illegally gathered evidence and subsequently discovered criminal evidence?

Back 22

1. Independent Source Doctrine: applies where source for discovery and seizure of evidence that is distinct from orig illegality
2. Inevitble Discovery Doctrine: applies where evidence would necessarily have been discovered via lawful means
3. Attenuation Doctrine: admit derivative evidence where D's free will has been restored through passage of tie and intervening events

Front 23

What are the four requirements for a valid wiretap warrant?

Back 23

"Screen Telephone Calls Carefully"
Suspected persons: must be named
Time: must be limited period
Crime: must be P.C. a crime committed
Conversations: describe calls to be heard

Front 24

When do you need a warrant to arrest someone?

Back 24

1. Cops don't need a warrant to arrest someone in a public place (felonies, misdemeanors must happen in cops presence)
2. Absent emergency, need warrant to make an arrest in a home
3. To arrest in 3rd parties residence cop needs both arrest warrant and a search warrant

Front 25

What are the VA laws on arrest?

Back 25

Felonies: cop may arrest any one who commits any crime in the cop's presence; or whom cop has reasonable grounds or PC to suspect has committed a felony not in the officer's presence
Other Crimes: cop may arrest for alleged misdemeanor not committed in cops presence when (i) cop gets radio/telephone message that warrant for such offense is on file OR (ii) offense involves assault and battery and arrest is based on PC upon reasonable complaint of an eyewitness

Front 26

When does "arrest" occur?

Back 26

Whenever the police take someone into custody against his will for prosecution or interrogation.
De facto arrest when cops compel someone to come to police station for questioning or finger printing.

Front 27

What are VA statutory exceptions to the warrant requirement for arrest?

Back 27

Can be arrested for motor vehicle crimes, shoplifting, warrant on file, public drunkenness, assault and battery against family or household member

Front 28

What is the standard for excluding a confession under the Due Process Caluse of the 14th Amendment?

Back 28

Involuntary police confession that is the product of police coercion that overbears the suspect's will.

Front 29

What are important aspects of a challenging a confession given in violation of the 6th amendment's right to counsel?

Back 29

1. Rights attach once formal charges are filed (not upon arrest); initial appearance triggers the right.

2. Must apply to the charges filed against you, it provides no protection for uncounseled interrogation for other uncharged criminal activity.

3. express constitutional guarantee

Front 30

What are the Miranda rights?

Back 30

1. Right to remain silent
2. Right to an attorney
3. Anything you say can and will be used against you in a court of law
4. If you cannot afford one, an attorney will be appointed for you

Front 31

When are Miranda warnings necessary?

Back 31

Miranda warnings are triggered by Custodial Interrogation:

1. Custody: suspect in custody if atmosphere, objectively viewed, is characterized by police domination and coercion such that his freedom of action is limited in a significant way

2. Interrogation: 5th Amendment Miranda doctrine defines interrogation as any conduct the police knew or should have known was likely to elicit an incriminating response (spontaneous incriminating statements are not the product of interrogation)

3. Public Safety Exception: if immediate concern, Miranda warnings not needed and incriminating statements are admissible

Front 32

What are the two core requirements of a Miranda waiver?

Back 32

1. Knowing and Intelligent: suspect understand the nature of his rights and the consequences of abandoning those rights
2. Voluntary: so long as not product of police coercion

Front 33

What happens when a suspect invokes the right to counsel?

Back 33

1. all interrogation must cease unless initiated by suspect
2. request must be sufficiently clear
3. expires 14 days after suspect is released from Miranda custody;
4. Not offense specific, interrogation following a request for counsel under Miranda is prohibited as to all topics outside the presence of suspect's attorney

Front 34

See page 34

Back 34

crim pro; is where you left off

Front 35

Does failure to give Miranda warnings suppress physical "fruits" (i.e. gun used in crime) from incriminating statements?

Back 35

No, so long as the provided statements are voluntary.

Front 36

How may denial of right to counsel at a pretrial identification be challenged?

Back 36

Sixth Amendment: Right to counsel exists under 6th amendment at line-ups and show-ups that take place after formal charging
NO 6th A. right to counsel at photo arrays

Fifth Amendment: NO 5th A. right to counsel under Miranda doctrine for pre-trial I.D. procedures

Front 37

What are the 3 types of VA grand juries?

Back 37

1. Regular/charging: determine if sufficient probable cause to return a true bill
2. Special/investigative: make report of limited value, filed with court
3. Multi-Jurisdictional Grand Jury

Front 38

Under what conditions in VA does an accused not have right to bail?

Back 38

If there is probable cause that:
1. Will not appear for trial
2. Poses an unreasonable danger to himself or the public

Rebuttable presumption: no bail if violent crime

Front 39

VA criminal juries: how many members for felony/misdemeanor, what are required of criminal juries?

Back 39

Felony: 12 jurors (4 peremptory challenges)
Misdemeanor: 7 jurors (3 peremptory challenges)
(constitutional min. is 6)
Juries sentence in VA, and criminal verdicts must be unanimous and in writing, and returned in open court.

Front 40

What is required to show inadequacy of counsel?

Back 40

1. Deficient performance
2. But-for deficiency outcome of trial was different ("prejudicial")

Front 41

Besides a plea of "guilty" what are other possible pleas?

Back 41

1. Nolo Contendere: guilty for judgment/sentencing purposes, but not confession or declaration of innocence (admissible against D in civil case in VA)
2. Conditional Guilty Plea: D contests case issue, but agrees to plead guilty on the condition he can appeal the contested issue (ONLY IN FELONY CASES in VA)
3. Alford Plea: D concedes that prosecution has sufficient evidence to prove the case (guilty w/o saying so)

Front 42

What pleas can you withdrawal in VA?

Back 42

D can withdrawal
(i) guilty plea or
(ii) nolo contendere plea:

ONLY before sentence imposed or imposition of sentence is suspended OR w/in 21 days after entry of a final order if court sets aside the judgment in order to correct a manifest injustice

Front 43

What is the 8th amendment prohibition against cruel and unusual punishment?

Back 43

Disallows criminal penalties that are grossly disproportionate to the seriousness of the offense committed.

No automatic category of crimes that get death penalty

No death for crimes by retards, the presently insane or D's under 18 at the time of offense

Front 44

When does Double Jeopardy attach?

Back 44

Never to civil proceedings, only criminal.

Jury Trial: when jury sworn
Bench Trial: when 1st witness sworn
Guilty Plea: when court accepts D's plea unconditionally

Front 45

For Double Jeopardy, when are two offenses NOT the "same offense"? also, what is the rule for D.J. in VA?

Back 45

If each contains an element that the other does not.

If one contains all the elements of the other the one with less requirements is a "lesser included offense"

IN VA:
1. prosecution for the substantive offense bars later prosecution for the related conspiracy
2. Prosecution for a federal crime bars later state prosecution under the equivalent state statute

Front 46

For Double Jeopardy, who are the "same sovereign"?

Back 46

Only states and municipalities w/in them. State/federal government or different states can still go after an accused.

Front 47

What are the 4 exceptions to Double Jeopardy that allow for retrial?

Back 47

1. Hung Jury
2. Mistrial for manifest necessity
3. Successful appeal
4. Breach of plea agreement by the D

Front 48

When must the 5th Amendment be asserted?

Back 48

First opportunity or it is forever waived.

Only protects testimony (not body)

Front 49

VA speedy trial: when must a felon get there trial before the case is dismissed?

Back 49

D in custody, felony trial must begin w/in 5 months from preliminary hearing (i.e. pleas entered or double jeop. attached)
D NOT in custody, felony trial must begin w/in 9 months from preliminary hearing