Ny Criminal Procedure*

Front 1

What are the four questions that must be answered in order for the 4th Amendment to apply?

Back 1

1) Was the search or seizure executed by a government agent?

2) Was the search or seizure of an area or item protected by the 4th Amendment?

3) Did a gov't agent either physically inturde a protected area or item to obtain information; or violate an individual's reasonable expectation of privacy?

4) Did the individual subjected to the search or seizure have standing to challenge?

Front 2

What are the categories for government agents under the 4th amendment?

Back 2

1) Publically paid police officer, on or off duty

2) Private citizens if, and only if, they are acting at the direction of police

3) Private security guards, but only if deputized with power to arrest

4) Public school administrators

Front 3

The 4th amendment expressly protects individuals from unreasonable searches and seizures of their:

Back 3

1) Persons

2) Houses

3) Papers

4) Effects

Front 4

Curtilage

Back 4

an area adjacent to the home to which the activity of home life extends

Front 5

What are categories of items that are not covered by the 4th amendment?

Back 5

Physical characteristics, Odors, Garbage, Open fields, Financial Records, Airspace, Pen Registers

Front 6

What are the two ways in which searches or seizures can implicate an individual's 4th Amendment rights?

Back 6

1) Trespass based test

2) Privacy based test

Front 7

Trespass based test

Back 7

The agent physically intruded on a constitutionally protected area in order to obtain information.

Front 8

Privacy based test

Back 8

The agent's search of seizure of a constitutionally protected area violated an individual's reasonable expectation of privacy.

Front 9

What must an individual show in order to satisfy the privacy-based test?

Back 9

1) An actual and subjective expectation of privacy in the area searched or items seized; and

2) that the privacy expectation was "one that society recognizes as reasonable."

Front 10

What is the key principle for 4th Amendment standing?

Back 10

An individual's personal privacy rights must be invaded, not those of a 3rd party.

Front 11

In New York, can passengers in cars challenge the possession of weapons, if possession is attributed to them?

Back 11

Yes

Front 12

What are the four key questions that must be answered when analyzing a search or seizure conducted pursuant to a search warrant?

Back 12

1) Was the warrant issued by a neutral and detached magistrate?

2) Is the warrant supported by probable cause and particularity?

3) If not, did police officers rely on a defective warrant in "good faith?"

4) Was the wrrant propery executed by the police?

Front 13

What is the standard for analyzing a neutral and detached magistrate?

Back 13

Ceases to be neutral and detached when his/her conduct demonstrates bias in favor of the prosecution

Front 14

What is required for probable cause?

Back 14

Proof of a "fair probability"

Front 15

Is hearsay admissible for obtaining warrants?

Back 15

Yes

Front 16

At common law what is required for use of an informant's tip to get a warrant supported by probable cause?

Back 16

The sufficiency of the informant's tip rests on corroboration by the police of enough of the tipster's information to allow the magistrate to make a "common sense practical" determination that PC exists based on a totality of the circumstances.

Front 17

In new york what is required for PC based on an informant's tip?

Back 17

Government must establish:

1) informant's reliability or veracity and

2) his or her basis of knowledge

When informant has not revealed his/her basis of knowledge PC may be established by police observation which confirms sufficient detail suggestive of the criminal activity in question

Front 18

What must the warrant state in order to be sufficiently particular?

Back 18

It must state:

1) the place to be searched; and

2) the items to be seized

Front 19

Is there a good faith exception in NY?

Back 19

No

Front 20

What is the common law good faith exception?

Back 20

An officer's good faith reliance overcomes consitutional deficits in probable cause and particularity.

Front 21

What are the 4 categorical exceptions to the common law good faith exception?

Back 21

1) The affidavit supporting the warrant application is so egregiously lacking probable cause that no reasonable officer would have relied on it.

2) The warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid.

3) The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding.

4) The magistrate who issued the warrant is biased in favor of prosecution.

Front 22

What two aspects must be considered when determining if a warrant was properly executed?

Back 22

1) Compliance with the warrant's terms and limitations.

2) Knock and announce rule

Front 23

When can an officer disregard the knock and announce rule?

Back 23

When the officer reasonably believes that knock and announce would be:

a) Futile, or

b) dangerous, or

c) would hinder the investigation

Front 24

Who may officers detain when executing a search warrant?

Back 24

Occupants found within or immediately outside the residence

Front 25

What are the eight exceptions to the warrant requirement?

Back 25

Exigent circumstances

Search incident to arrest

Consent

Automobile

Plain View

Inventory

Terry "Stop and Frisk"

Front 26

What are the three types of exigent circumstances?

Back 26

1) Evanescent Evidence

2) "Hot Pursuit" of a Fleeing Felon

3) "Emergency Aid" Exception

Front 27

What is evanexcent evidence?

Back 27

Evidence that would dissipate or disappear in the time it would take to get a warrant

Ex. tissue under a suspect's fingernails

Front 28

Explain the "Hot Pursuit" Exception

Back 28

1) Allows police officers to enter a home of a suspect or a third party to search for a fleeing felon

2) any evidence of a crime discovered in plain view during search for the suspect is admissible

Front 29

Explain "Emergency Aid" Exception

Back 29

Police may enter a residence without a warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address of prevent injury

Front 30

Explain the search incident to arrest exception

Back 30

The police may search the body, clothes and any containers within the wingspan of a lawfully arrested person contemperaneous in time and place with the arrest

Front 31

What is the new york distinction regarding search incident to arrest?

Back 31

To search containers within wingspan, an officer must suspect that the arrestee is armed

Front 32

What is the rule regarding searching an automobile incident to arrest?

Back 32

1) Police may search the car of an unsecured individual that is under arrest for any evidence, but not the trunk

2) Police may not search the car of a secured person incident to arrest unless they have reason to believe that the car will have evidence of the crime for which the person was arrested

Front 33

What is the New York distinction regarding search of a vehicle incident to arrest?

Back 33

Once the occupant is out of the car the police may not search containers inside the car

Front 34

In order for consent to be valid what must be true?

Back 34

Consent must have been voluntary and intelligent

Front 35

Do police officers have to tell someone that they have the right not to consent in order for consent to be valid?

Back 35

No

Front 36

What is the scope of consent?

Back 36

Consent to search extends to all areas for which a reasonable officer would believe permission to search was granted.

Front 37

If a person does not have the actual authority to consent but grants consent anyway what happens?

Back 37

Officer may search if it was reasonable for the officer to think that the person had the actual authority.

Front 38

Who can consent to a search of common areas in a shared residence?

Back 38

Any resident

Front 39

If two tenants are present and one objects and one consents, what happens?

Back 39

The objecting party's wishes controls

Front 40

What is the automobile exception?

Back 40

Police may search the entire vehicle including containers is they have probable cause to believe that contraband or evidence of a crime will be found in the vehicle

Front 41

Does an officer need probable cause to stop a car?

Back 41

No

Front 42

What are the three requirements for a plain view search?

Back 42

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

2) Lawful access to the item itself, and

3) the criminality of the item must be immediately apparent

Front 43

What are the tenets of a inventory search?

Back 43

1) The regulation governing them are reasonable in scope;

2) The search itself complies with those regualtions; and

3) the search is conducted in good faith ; that is, it is motivated solely by the need to safeguard the owner's possessions and/or to ensure officer safety

Front 44

What is a Terry stop?

Back 44

It is a brief detention or seizure for the purposes of investigating suspicious conduct

Front 45

When is a person seized for 4th amendment purposes?

Back 45

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.

Front 46

What shoudl you consider when determining if someone has been seized?

Back 46

1) Whether officer brandishes a weapon

2) the officer's tone and demeanor

3) Whether the individual was told she had the right to refuse consent

Front 47

During a police pursuit when is a person seized?

Back 47

When the individual submits to the officer's authority or if the officer physically restrains him

Front 48

In new york when is a person seized during a police pursuit?

Back 48

The pursuit is a seizure in and of itself

Front 49

Who is seized during a car stop

Back 49

Driver and passengers

Front 50

May an officer ask a person to get out of the car during a traffic stop?

Back 50

Yes, at his/her discretion

Front 51

When are dog sniffs allowed during a traffic stop?

Back 51

Permissible as long as the sniff does not prolong the stop unreasonably

Front 52

What is a terry frisk?

Back 52

A pat down of the body and outer clothing for weapons that is justified by an officer's belief that a suspect is armed and dangerous.

Front 53

When can an officer seize during a terry frisk?

Back 53

1) Somthing that an officer reasonably believes to be a weapon

2) Something an officer immediately recognizes as contraband without manipulating it

Front 54

What can be seized in a Terry frisk in NY?

Back 54

Only things that reasonably appear to be a weapon

Front 55

What is a car frisk?

Back 55

When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspect's vehicel limited to those areas in which a weapon may be placed or hidden

Front 56

What is a protective sweep?

Back 56

When making an in-home arrest and oficer may sweep the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety

Front 57

What evidentiary standard applies to terry stops and frisk

Back 57

Reasonable articulable suspicion

Front 58

Can informant's tips be used to satisfy the terry reasonable articulable suspicion standard?

Back 58

Yes, provided the tip contains sufficient predictive information corroborated by the police

Front 59

What are the categories for special needs searches

Back 59

a) Drug testing (railroad employees after accident, customs agents responsible for drug interdiction, public school children participating in extracurriculars)

b) Parolees as condition of parole

c) School searches

d) Border searches

e) "Non-law enforcement primary purpose" test

Front 60

Exclusionary rule

Back 60

Evidence that is obtained in violation of federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated

Front 61

Does the exclusionary rule keep evidence out of the prosecution's case in chief?

Back 61

Yes

Front 62

Can excluded evidence be used on cross examination?

Back 62

Yes to impeach the defendant's testimony

Front 63

Does a violation of the knock and announce rule trigger suppression?

Back 63

No

Front 64

To trigger he exclusionary rule the police onduct must be:

Back 64

Deliberate, reckless or grossly negligent

Front 65

What is direct evidence?

Back 65

Evidence seized that is directly linked to the violation

Front 66

What is derivative evidence

Back 66

evidence obtained by exploiting a prior unconstitutional search or seizure

Front 67

How can prosecutors nullify fruit of the poisonous tree?

Back 67

Must show a break in the causal link between the original illegality and the criminal evidence

Front 68

What are the 3 doctrines that can shows a break in the causal link?

Back 68

1) Independent source

2) Inevitable discovery

3) Attenuation

Front 69

Independent Source Doctrine

Back 69

Doctrine applies when a source exists for the seizure of the evidence that is distince from the original illegality

Front 70

Inevitable discovery doctrine

Back 70

the doctrine applies when the evidence would necessarily would have been discovered through legal means

Front 71

Attenuation doctrine

Back 71

This doctrine admits derivative evidence where the passage of time and intervening events purged the taint of the original illegality and restore the defendant's free will.

Front 72

What are the 4 major requirements for a valid wiretap?

Back 72

1) Suspected persons - must name expected persons

2) Time - must strictly limit time period

3) Crime - must be probable cause that crime was committed

4) Conversations - must describe with particularity the conversations that can be overheard

Front 73

Do you have a 4th amendment claim if you discuss something to someone who has agreed to a wiretap?

Back 73

No

Front 74

What is the New York limit on wiretap duration per warrant?

Back 74

30 days

Front 75

When does an arrest occur?

Back 75

1) Whenever the police take someone into custody against her will for prosecution or interrogation

2) It is considered a de facto arrest when the police compel someone to come to the station for questioning or fingerprinting

Front 76

What standard of proof applies to arrest?

Back 76

Probable cause

Front 77

For what offenses does the 4th amendment permit a custodial arrest?

Back 77

All offenses

Front 78

Do officers need a warrant to arrest someone in a public place?

Back 78

No

Front 79

Do officers need an arrest warrant to arrest someone at their home?

Back 79

Yes

Front 80

What do officers need to arrest someone at a third party's home?

Back 80

An arrest warrant and a search warrant

Front 81

What are the three constitutional challenges that can be made to a confession?

Back 81

1) Fourteenth Amendment - Due Process

2) Sixth Amendment - Right to Counsel

3) Fifth Amendment - Miranda Violation

Front 82

In NY what is the 4th challenge that can be brought against a confession

Back 82

State Constitution 6th amendment - indelible right to counsel

Front 83

What is the standard for excluding a confession under the Due Process Clause?

Back 83

Involuntariness - police coercion which overbears the suspect's will

Front 84

When does 6th amendment right to counsel attach?

Back 84

When formally charged

Front 85

When does 6th amendment right to counsel apply?

Back 85

All critical stages of prosecution

Front 86

In New York can police question someone if they are aware he is represented by counsel?

Back 86

Not about that charge or any other charge without his lawyer present

Front 87

In addition to actions taken after formal charging, when does the NY indelible right to counsel attach?

Back 87

Whenever there is a significant judicial activity before filing an accusatory intrument such that a defendant would benefit from the presence of counsel

Front 88

How must waiver of indelible right to counsel be taken?

Back 88

In the presence of the attorney

Front 89

What is the two part test for when Miranda rights are necessary?

Back 89

1) A reasonable person woudl have felt that she was not at liberty to end the interrogation and leave; and

2) the environment presents the same inherently coercive pressures as the station-house questioning at issue in Miranda

Front 90

What is the relevance of a juvenile's age in Miranda jurisprudence?

Back 90

Custody inquiry is objective but an officer knows or has reason to know of the juvenile's age it should be taken into account

Front 91

What qualifies as interrogation under Miranda?

Back 91

Any conduct by police that they know or should have known was likely to elicit an incriminating response

Front 92

What is the public safety exception to Miranda?

Back 92

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 93

Incriminating statements made during a custodial interrogation are only admissible when what happens?

Back 93

1) officer reasonably conveys to the suspect his or her core miranda rights; and

2) thereafter obtains a valid waiver of a suspect's Miranda rights to silence and counsel

Front 94

What are the two core requirements of a Miranda waiver?

Back 94

1) Knowing and intelligent

2) Voluntary

Front 95

A Miranda waiver is knowing and intelligent, if...

Back 95

The suspect understands:

1) The nature of the rights; and

2) the consequences of abandoning them

Front 96

What is New York's Parent/Child rule for Miranda waivers?

Back 96

If the police use deception or concealment to keep a parent away from a child who is being interrogated, the child's waiver may be deemed invalid.

Front 97

Must a Miranda waiver be express?

Back 97

No

Front 98

Who bears the burden of proof with respect to Miranda waivers?

Back 98

The prosecution by a preponderance of the evidence

Front 99

How must a suspect invoke their right to remain silent?

Back 99

Unambiguously

Front 100

Once a suspect has invoked what happens next?

Back 100

Officers must scrupulously honor the invocation - cannot badger the suspect and must wait a significant amount of time before attempting to get a waiver again

Front 101

How must a suspect request counsel?

Back 101

In a way that is sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel.

Front 102

What happens when a suspect lawyers up?

Back 102

All interrogation must cease unless initiated by the suspect

Front 103

How long does a request for counsel last?

Back 103

It expires 14 days after the suspect is released from custody

Front 104

May statements obtained in violation of Miranda be used on cross examination to impeach the defendant?

Back 104

Yes

Front 105

Must physical fruits of statement taken in violation of Miranda rights be suppressed?

Back 105

Not if statements were made voluntarily

Front 106

IS there a sixth amendment right to counsel at line-ups and show-ups?

Back 106

Yes if they take place after formal charging

Front 107

Is there a 6th amendment right to counsel at photo arrays?

Back 107

No, regardless if pre or post charging

Front 108

In NY is there a right to counsel at line-ups before the filing of formal charges?

Back 108

Yes if the polce are aware that you are represented by counsel on another charge and you request that counsel be present

Front 109

When does a pretrial identification procedure violate due process?

Back 109

When it is unduly suggestive that it creates a substantial likelihood of misidentification

Front 110

What is the remedy for constitutional violations in pretrial identifications?

Back 110

Exclusion of a witness's in court identification

Front 111

When can the prosecution avoid the exclusion of an in court identification even when pre-trial identification was unconstitutional?

Back 111

When they can prove that in-court identification is based on observations other than unconstitutional pre-trial identification

Front 112

What factors can be used to prove that witness identification is based on things other than unconstitutional identification?

Back 112

1) Witness opportunity to view D at crime scene;

2) the specificity of the description given to police; and

3) the certainty of the witness's identification

Front 113

In New York do all felonies require indictments?

Back 113

Yes

Front 114

In New York what must be established in an indictment?

Back 114

All elements of the offense and reasonable cause to believe that the accused committed the offense

Front 115

When does jeopardy attach in a jury trial?

Back 115

When Jury is sworn

Front 116

When does jeopardy attach in a bench trial?

Back 116

When first witness is sworn

Front 117

When does jeopardy attach in a guilty plea?

Back 117

When court accepts plea unconditionally

Front 118

What is the general rule regarding whether something is the same offense for the purposes of double jeopardy?

Back 118

Not the same offense if each contains an element that the other does not

Front 119

In NY what is the rule regarding the same offense for purposes of double jeopardy?

Back 119

D must be charged with all offenses arising from any single transaction unless

1) the offenses have substantially different elements;

2) each offense contains an element not in the other and prevents different harmd;

3) one is for criminal possession and the other is for use

4) each offense involves harm to a different victim

Front 120

What are the fourr exceptions to the double jeopardy rule that permit trial?

Back 120

1) A hung jury

2) a mistrial for manifest necessity

3) a sucessful appeal, unless based on insufficient evidence

4) a breach of the plea agreement by the D

Front 121

In New York can right to remain silent be asserted in a grand jury proceeding?

Back 121

No

Front 122

In New York what do witnesses receive at the Grand Jury?

Back 122

Transactional immunity automatically

Front 123

Transactional Immunity

Back 123

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

Front 124

What kind of immunity is used in NY?

Back 124

Transactional