Mbe - Criminal Procedure (W/ Ny Distinctions)

Front 1

What are the two categories of government agents for the purposes of 4th Amendment searches and seizures?

Back 1

1) Publicly paid police, on or off duty
2) Private citizens, if acting at the direction of the police

Front 2

What four types of things does the 4th Amendment protect re: searches and seizures?

Back 2

1) Person
2) Houses
3) Papers
4) Effects

Front 3

What things are not protected by the 4th Amendment's search and seizure rules?

Back 3

1) Paint scrapings on the outside of a care
2) Account records held by a bank
3) Airspace
4) Garbage
5) Voice
6) Odors
7) Handwriting
8) Open fields

Front 4

What is required for a person to have standing to challenge the lawfulness of a search or seizure?

Back 4

An individual’s personal privacy rights must be invaded, not those of a third party

Front 5

When does the owner of seized property have standing to challenge the seizure?

Back 5

If there was a reasonable expectation of privacy in the area from which the property was seized

Front 6

Under federal law, when does a passenger in a car have standing to challenge a search or seizure? What is the NY exception to this rule?

Back 6

Reasonable expectation of privacy in the item or area searched or seized

NY exception: Passengers in car have standing to challenge the possession of weapons, if possession is attributed to them

Front 7

What is probable cause?

Back 7

Probable cause requires proof of a fair probability that contraband will be found in the area searched

Front 8

What is required under federal law in order for an informant's tip to constitute probable cause?

Back 8

Need: sufficient corroboration by the police to allow the magistrate to make a common sense, practical determination that probable cause exists

Front 9

What is required under NY law in order for an informant's tip to constitute probable cause?

Back 9

1) Informant’s basis of knowledge, AND
2) Informant’s veracity/reliability

Front 10

What is required in order for a warrant to satisfy the particularity requirement?

Back 10

Search warrant must specify:
1) Place to be searched, and
2) Items to be seized

Front 11

How may a warrant be saved if there is an absence of probable cause or particularity? What is the NY rule on this?

Back 11

The officer relied upon it in good faith

This rule does not apply in NY

Front 12

What are the four exceptions in which an officer's good faith reliance on a defective warrant does not "save" the warrant?

Back 12

1. Affidavit supporting the warrant is so egregiously lacking in probable cause that no reasonable officer would have relied on it
2. Warrant is so facially deficient in particularity that officers cannot reasonably presume it to be valid
3. Affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding
4. Magistrate is biased in favor of prosecution

Front 13

What is the knock and announce rule? What are the exceptions to the knock and announce rule?

Back 13

Police must knock and announce their presence AND their purpose before forcibly entering the place to be searched, unless officer reasonably believes that doing so would be:
1) Futile
2) Dangerous
3) Would inhibit the investigation

Front 14

What are the 8 exceptions to the warrant requirement?

Back 14

1) Exigent circumstances
2) Search incident to arrest
3) Consent
4) Automobile
5) Plain view
6) Inventory
7) Special needs
8) Terry stop and frisk

Front 15

In what two kinds of circumstances does the exigent circumstances exception to the warrant requirement apply?

Back 15

1) evanescent evidence
2) hot pursuit of a fleeing felon

Front 16

What is the required timing for a search incident to arrest?

Back 16

Search must be contemporaneous w/ the arrest in:
1) Time
2) Place

Front 17

What is the geographic scope of a search incident to arrest?

Back 17

Arrestee's wingspan, which includes:
1) body
2) clothing
3) any container’s w/in the arrestee’s immediate control

w/o regard to the offense for which the arrest was made

Front 18

In NY, what is required before an officer can search containers w/in the arrestee's wingspan, during a search incident to arrest?

Back 18

In order to search containers w/in the wingspan, police must suspect that the arrestee is armed

Front 19

What is the scope of a search of an automobile pursuant to a search incident to arrest?

Back 19

Interior cabin, including closed (but not locked) containers

NOT the trunk

Front 20

Under federal law, when may an officer search a car incident to arrest after the officer has secured the arrestee?

Back 20

Only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made

Front 21

What is required in order for a consent to search to be valid?

Back 21

Consent must be:
1) Voluntary
2) Intelligent

Front 22

What is apparent authority w/r/t 4th Amendment search/seizure?

Back 22

If police obtains consent to search someone who lacks actual authority to grant it, the consent is still valid under the 4th Am, provided the officer reasonably believed the consenting party had actual authority

Front 23

Who prevails when two co-tenants disagree w/r/t to whether to allow a search of a shared living space?

Back 23

The objecting co-tenant

Front 24

When may an officer conduct a warrantless search of an automobile (absent consent or search incident to arrest)

Back 24

Police need probable cause to believe that contraband or evidence of crime will be found in the vehicle

Front 25

What is the permissible scope of a warrantless search of an automobile (absent consent or search incident to arrest)?

Back 25

Police may search the entire vehicle, including the trunk

May open any package, luggage, or other container that may reasonably contain the items for which there was probable cause to search

Front 26

What is required in order for an officer to legally seize items in plain view?

Back 26

1. Lawful access to the place from which the item can be plainly seen
2. Lawful access to the item
3. Criminality of the item immediately apparent

Front 27

When is an inventory search constitutional?

Back 27

1. Regulations governing them are reasonable in scope, and
2. Search complies w regulations

Front 28

In what three situations is suspicionless drug testing constitutional under the special needs exception

Back 28

1) Railroad employees following an accident
2) Customs agents who are responsible for drug interdiction
3) Public schoolchildren who participate in extracurricular activities

Front 29

In general, when is suspicionless drug testing not permitted under the special needs exception?

Back 29

Where the primary purpose is to gather criminal evidence for use by law enforcement

Front 30

When does a "seizure" occur for the purposes of a Terry stop? What factors are relevant?

Back 30

Individual seized when, based on totality of circumstances, reasonable person would not feel free to leave or to decline request to answer questions

Factors
1) Officer brandishes a weapon
2) Officer’s tone and demeanor
3) Whether individual was told she had a right to refuse consent

Front 31

When is an individual being pursued by the police "seized" for the purposes of a Terry stop, under federal law?

Back 31

When being pursued by police, individual is “seized” only if the officer physically restrains him

Front 32

When is an individual being pursued by the police "seized" for the purposes of a Terry stop, under NY law?

Back 32

Police pursuit is a seizure

Front 33

When is a dog sniff permitted at a traffic stop?

Back 33

Permissible, provided that sniff does not prolong the seizure unreasonably

Front 34

What can be seized in a Terry frisk under federal law?

Back 34

1) If officer finds a weapon, can be seized
2) If officer finds contraband, w/o manipulating the object → can be seized

Front 35

What can be seized in a Terry frisk under NY law?

Back 35

Can seize item only if it feels like a weapon

Front 36

When can an officer search a car while conducting a traffic stop (Terry stop)? What is the permissible scope of the search?

Back 36

When conducting a traffic stop, if an officer reasonably believes that suspect is dangerous, he may search the passenger cabin

Limited to those areas in which a weapon may be placed

Front 37

What is the general evidentiary standard required to support a Terry stop and frisk?

Back 37

Reasonable suspicion

Front 38

What is required in order for a Terry stop to be valid?

Back 38

1) Specific and articulable facts that inform an officer’s
2) Reasonable belief that criminal activity is present

Front 39

What is required in order for a Terry frisk to be valid?

Back 39

Specific and articulable facts that suggest that a suspect is armed and dangerous

Front 40

What is the exclusionary rule?

Back 40

Evidence, whether physical or testimonial, that is obtained in violation of a fed statutory or constitutional provision, is inadmissible in ct against the individual whose rights were violated

Front 41

What are the 4 limitations on the exclusionary rule?

Back 41

1) May be used on cross-examination to impeach D's testimony

2) Does not apply to knock and announce rule

3) Officer's reasonable mistake

4) Fruit of the poisonous tree

Front 42

What is the fruit of the poisonous tree doctrine?

Back 42

Secondary evidence obtained by exploiting prior unconstitutional conduct is inadmissible in the prosecutor’s case-in-chief

Front 43

What are the three ways to break the link between original illegality and other criminal evidence, under the fruit of the poisonous tree doctrine?

Back 43

1) independent source
2) inevitable discovery
3) attenuation

Front 44

What is "attenuation", as an exception to the fruit of the poisonous tree doctrine?

Back 44

Defendant’s free will has been restored through the passage of time and an intervening event

Front 45

What are the 4 requirements for a valid wiretap?

Back 45

1) Warrant must name the suspected persons whose conversations are to be overheard
2) Must be probably cause that a specific crime has been committed
3) Warrant must describe w particularity the conversations that can be overheard
4) Wiretap must be strictly limited in time

Front 46

What are a person's 4th Am protections when they speak w someone who has agreed to wiretap?

Back 46

NO 4th Amendment claim. You have assumed the risk that the other party will not keep your conversations private

Front 47

When does an arrest occur?

Back 47

Arrest occurs when the police take someone into custody against her will for prosecution or interrogation

De facto arrest if: police compel someone to come to the police station for questioning or fingerprinting

Front 48

What standard of proof is required to support an arrest?

Back 48

probable cause

Front 49

For what offenses may a person be arrested?

Back 49

Arrest permitted for all offenses, even those punishable by a monetary fine

Front 50

Is a warrant required to arrest someone in a public place? In their home?

Back 50

public place: no warrant required

in their home: warrant required

Front 51

What is required to arrest someone in the home of a third party?

Back 51

1. Arrest warrant, AND
2. Search warrant

Front 52

What three federal constitutional challenges can be brought to exclude a confession?

Back 52

1. 14th Amendment DPC
2. 6th Amendment right to counsel
3. 5th Amendment Miranda doctrine

Front 53

What NY-specific challenge can be brought to exclude a confession?

Back 53

State 6th Amendment indelible right to counsel

Front 54

When may a confession be excluded under the DPC?

Back 54

If it is involuntary

Involuntary = product of police coercion that overbears the suspect’s will

Front 55

When does D's 6th Amendment right to counsel attach?

Back 55

When the suspect is formally charged

Front 56

Is the 6th Amendment right to counsel offense-specific?

Back 56

Yes

Front 57

When does the NY indelible right to trial attach?

Back 57

Whenever there is significant judicial activity before the filing of an accusatory instrument such that defendant may benefit from the presence of counsel

Front 58

What are the Miranda warnings?

Back 58

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

Front 59

What is required in order for Miranda to apply?

Back 59

1) custody
2) interrogation

Front 60

What is "custody" for the purposes of determining whether Miranda applies?

Back 60

Atmosphere, viewed objectively, is characterized by police domination and coercion, such that his or her freedom of action is limited in a significant way

Front 61

What is "interrogation" for the purposes of determining whether Miranda applies?

Back 61

Conduct the police knew or should have known was likely to elicit an incriminating response

Front 62

What is the sole exception to the general Miranda requirement?

Back 62

Not required where prompted by an immediate concern for public safety

Front 63

What is required for a valid waiver of a D's Miranda rights?

Back 63

1) Knowing and intelligent (i.e. suspect understands nature of rights and consequences of abandoning them)

2) Voluntary

Front 64

What is the burden of proof for establishing a waiver of Miranda rights?

Back 64

Prosecution bears burden of proof by a preponderance of evidence

Front 65

Is silence or should-shrugging sufficient to constitute a waiver of Miranda rights?

Back 65

No

Front 66

After a D has invoked his right to silence under Miranda, what must an officer do before reinitiating questioning?

Back 66

Must wait a significant period of time before reinitiating questioning, and must first obtain a valid Miranda waiver

Front 67

What is the standard for determining whether a D's invocation of his right to counsel under Miranda is valid?

Back 67

Request for counsel must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel

Front 68

Is a D's 5th Amendment right to counsel offense-specific?

Back 68

No. Interrogation following a request for counsel under Miranda is prohibited on all topics, outside presence of attorney

Front 69

When does a request for counsel expire after a suspect is released from custody?

Back 69

Request for counsel expires after 14 days after a suspect is released from custody

Front 70

Are incriminating statements obtained in violations of a suspect’s Miranda rights admissible at trial?

Back 70

Not in the prosecutor's case in chief. But: may be used to impeach defendant’s testimony on cross

Front 71

Does failure to give Miranda warnings does require suppression of physical fruits of the incriminating statements

Back 71

No, provided that the statements are voluntary

Front 72

If testimonial evidence that should have been excluded as violative of Miranda was improperly admitted at trial, when should the judgment be vacated?

Back 72

Gov cannot prove beyond a reasonable doubt that the error was harmless

Front 73

What are a D's 5th Amendment rights to counsel during a pre-trial ID?

Back 73

None

Front 74

What are a D's 6th Amendment rights to counsel during a pre-trial ID?

Back 74

Right to counsel exists for:
1) Line-ups
2) Show-ups

Front 75

freight

Back 75

貨

Front 76

When does a pre-trial ID violate the DPC?

Back 76

When it is so unnecessarily suggestive that there is a substantial likelihood of misidentification

Front 77

What is the proper remedy for a pre-trial ID that violates a D's 6th or 14th (DPC) Amendment rights?

Back 77

Exclusion of witness’s in-court ID

Front 78

When is a witness's in-court ID allowed, despite the existence of an unconstitutional pre-trial ID procedure? What factors are important in this consideration?

Back 78

Prosecution can prove that it is based on observations of the suspect other than the unconstitutional ID

Factors
1) Witness’s opportunity to view the D at the crime scene
2) Certainty of the witness’s ID
3) Specificity of the description given to the police

Front 79

What standard of proof is required for pre-trial and during-trial detention?

Back 79

Probable cause

Front 80

What are the two prongs of the right to an unbiased judge?

Back 80

1. Judge has no financial stake in the outcome of the case, and
2. Judge has no actual malice towards D

Front 81

When does criminal Ds have a right to a jury trial?

Back 81

Maximum authorized sentence > 6 mo

Front 82

What is the fewest number of jurors allowed in a criminal trial under federal law?

Back 82

6

Front 83

What is the fewest number of jurors allowed in a criminal trial under NY law?

Back 83

12

Front 84

When is unanimity required for federal juries? When is it not required?

Back 84

Unanimity is required when there is a jury of only 6 people. Otherwise, unanimity is not required

Front 85

What is the cross-sectional requirement w/r/t juries?

Back 85

Requires that the pool from which the jury is drawn represents a cross-section of the community

Front 86

In what situation does a D's right to confront an adverse witness not apply?

Back 86

When there are countervailing important public policy concerns

E.g. traumatizing a child witness

Front 87

What is required to succeed on a claim of ineffective assistance of counsel?

Back 87

Requires proof that:
1. Counsel’s performance was deficient, and
2. But for the deficiency, the outcome of the trial would have been different

Front 88

What is required for a guilty plea to be valid?

Back 88

For a guilty plea to be valid, judge must establish that it is:
1) Voluntary
2) Intelligent

Front 89

In what 4 situations my a D withdraw a guilty plea?

Back 89

1) Plea is involuntary
2) Jurisdictional defect
3) D prevails on claim of ineffective assistance of counsel
4) Prosecutor fails to fulfill his pt of the bargain

Front 90

What does the 8th Am prohibition against cruel and unusual punishment generally prohibit?

Back 90

8th Am prohibition against cruel and unusual punishment prohibits criminal penalties that are grossly disproportionate to the seriousness of the offense committed

Front 91

When does a death penalty statute violate the death penalty (other than when it allows for death penalty of certain restricted groups)?

Back 91

Death penalty statute violates 8th Am if creates an automatic category for the imposition of the death penalty

Front 92

Against what groups of people is the death penalty prohibited?

Back 92

8th Am prohibits death penalty against:
1) D w mental retardation
2) D who are presently insane
3) D who were under the age of 18 at the time the relevant offense occurred

Front 93

When does double jeopardy attach at:

1) jury trial
2) bench trial
3) guilty plea

Back 93

1) Jury trial: When the jury is sworn
2) Bench trial: When the first witness is sworn
3) Guilty plea: When the court accepts the D’s plea unconditionally

Front 94

Does double jeopardy apply to civil proceedings?

Back 94

No

Front 95

What is the "same offense" requirement for double jeopardy, under federal law?

Back 95

Two offenses are not the same offense for the purposes of double jeopardy if each contains an element the other does not

Front 96

What is the transaction requirement for double jeopardy in NY?

Back 96

D must be charged w all offenses arising from any single transaction, unless:
1. Offenses have substantially diff elements
2. Each offense contains an element not in the other, and they vindicate different harms
3. One of for criminal possession and the other for use
4. Each offense involved harm to a different victim

Front 97

What is the rule for greater- and lesser-included offenses under double jeopardy?

Back 97

1. Prosecution for a greater offense precludes later prosecution for a lesser-included offense
2. Prosecution for the lesser-included offense precludes later prosecution for the greater offense

Front 98

When do two governments constitute the "same sovereign" for purposes of double jeopardy?

Back 98

1) State and fed gov are NOT the same sovereign
2) Different states are NOT the same sovereign
3) States and municipalities w/in them ARE the same sovereign

Front 99

What are the 4 situations in which double jeopardy does not apply?

Back 99

1) Hung jury
2) Mistrial for manifest necessity
3) Successful appeal
4) Breach of plea agreement by D

Front 100

Who may assert the 5th Amendment privilege against self-incrimination?

Back 100

Anyone

Front 101

In what proceedings may the 5th Amendment privilege against self-incrimination be invoked?

Back 101

Any proceeding under oath

Front 102

When must the 5th Amendment privilege against self-incrimination be invoked?

Back 102

Must be asserted at the first opportunity or it is waived

Front 103

What are the three ways in which the 5th Amendment privilege against self-incrimination can be eliminated?

Back 103

1) immunity
2) D takes the stand
3) statute of limitations for the crime has run

Front 104

What is use immunity for the purposes of the 5th Amendment privilege against self-incrimination?

Back 104

Prosecutors can grant use and derivative use immunity, which bars government from using your testimony or anything derived from it to convict you

Front 105

What is transaction immunity for the purposes of the 5th Amendment privilege against self-incrimination? Does it apply in federal court? NY?

Back 105

Shields witnesses from prosecution for any transaction they testified about in their immunized testimony

It only applies in NY, not federal court