Crim Pro
What is the rule of hot pursuit?
LEOs may pursue a fleeing felon anywhere he goes, so long as they're in a 10-15 min window, they believe he's committed a serious offense, and is likely a threat to the public at large.
What is search incident to a lawful arrest?
an exception to the search warrant rule, limited to the immediate surrounding area: wingspan or grabbable area of a suspect for protection of the police and preservation of evidence;
When police stop a vehicle and have probable cause to believe that contraband is contained in it, they may search...
any container in the vehicle that could possibly contain the obj of the search
What is the doctrine of evanescent evidence?
Evidence which will disappear if the police don't immediately confiscate it, think drugs flushed down toilet, washing bloody clothes.
What is the only defect to a grand jury indictment?
Exclusion of minorities from the grand jury panel
what are the elements of hot pursuit?
(1) there's a 10-15 min window, (2) the LEOs believe suspect's has committed a serious offense, and (3) the LEOs believe suspect is likely a threat to the public at large.
After liquor store robbed, police received anonymous call naming store employee as perpetrator. Honestly believing their actions were permitted by the Constitution, police talked one of the employee's neighbors into going to employee's home w/ hidden tape recorder to engage him in convo about the crime. During convo, employee admitted committing robbery. Employee charged in state court w/ the robbery. He moved to suppress recording, on the grounds that the method of obtaining it violated his constitutional rights under both the state and fed constitutions. Assume clear precedent from state supreme court holds that the conduct of the police in making the recording violated employee's rights under the state constitution, and that the exclusionary rule is proper remedy for this violation. Should the court grant the employee's motion? (A) Yes, bc the making of the recording violated the state constitution. (B) Yes, bc use of the recording would violate the neighbor's fed constitutional rights. (C) No, bc the employee's fed constitutional rights were not violated, and this circumstance overrides any state constitutional provisions. (D) No, bc the police were acting in the GF belief that their actions were permitted by the fed Constitution.
(A) is Correct. A state may grant broader rights under its own constitution than are granted by the fed Constitution. Here, state has clear precedent that the recording violated employee's state constitutional rights, and that it should be excluded as a remedy. Court should apply this precedent to grant the employee's motion. (B) is incorrect, bc the secret recording of a conversation w/ a ∆ by a govt informant, like the recording in this case, does not violate the 4AM. H/O, state in this case has clear precedent that the recording violated employee's state constitutional rights, and that it should be excluded as a remedy. BC states may grant broader rights under their own constitutions than are granted by the fed Constitution, the court should apply this precedent to grant the employee's motion. (D) is incorrect bc it is irrelevant what the police thought about the propriety of their actions under the fed Constitution where the state has granted broader rights under its own constitution as permitted by Michigan v. Long.
(A) Jeopardy had not attached. (B) There has been no conviction or acquittal. ∆ charged w/ manslaughter. At prelim hearing, magistrate dismissed charge on grounds that evidence was insufficient. Prosecutor then brought the case before grand jury. After hearing the evidence presented by Prosecutor, grand jury refused to return indictment. Prosecutor waited a few mo until new grand jury had been impaneled and brought case before that grand jury, which returned an indictment charging ∆ w/ manslaughter. ∆ moves to dismiss indictment on DJ grounds. The motion will not be granted, bc...
(A) is correct bc Jeopardy does not attach at a prelim hearing. (B) is incorrect bc Jeopardy attaches prior to judgment (whether on conviction or acquittal): in a jury trial when the jury is sworn, and in a bench trial when the court begins to hear evidence.
(A) Yes, bc LEO had no warrant. (B) Yes, bc admitting diary would violate Woman's privilege against self-incrim. (C) No, bc Hotel Manager had actual auth'y to allow the officer into the hotel room. (D) No, bc LEO reas relied on Hotel Managers apparent auth'y to allow LEO into the hotel room. Fed LEO had PC to believe Woman had participated in a bank robbery. 2 days after robbery, Woman checked into local hotel room. When Woman left for evening, Hotel Manager opened hotel room door so LEO could enter room and look inside. LEO did not find any of the stolen money but did see, lying open on the bed, Woman's diary. Diary contained an entry describing Woman's involvement in robbing bank. Woman charged in fed ct w/ bank robbery. She moved to suppress diary. Should the court suppress diary?
(A) is correct. Before LEOs may enter a place as to which a suspect has a reas expectation of privacy, LEOs must (1) have PC to suspect a crime; and (2) have warrant, or benefit from some exceptIon. Here, although (1) is satisfied, LEOs did not have warrant, and nothing to suggest any exception (e.g. no such 'exigent' circumstances were presented here, since woman was out for evening and thus did not pose an imminent threat to destroy evidence — if LEOs were worried that she would destroy evidence ASA she returned, they could have posted an officer outside the room to prevent her re-entry, while they sought a warrant.) Nor did permission from hotel manager override woman's right not to have her premises searched w/o a warrant, for the reasons. (C) is incorrect bc hotel manager did not have actual auth'y to allow the officer into the hotel room. 'Actual auth'y" is a concept of agency law: If the principal intentionally confers on the agent the right to do something, the agent is said to have actual auth'y to do that thing. So if woman had indicated (either expressly or by implication) to the hotel management that it was OK for management to enter and search her room at any time, the management would have had actual auth'y to conduct its own search, and also auth'y to consent to police search. In another context, suppose that D was an employee of X Corp. and had an office at corporate headquarters; if the understanding was that X Corp. had the right as owner of the office to search its con10ts at any time, then X Corp. would have had actual auth'y to permit police to make such a search, and that permission would have overridden D's reas expectation of privacy in the office. But here, hotel management had at most actual auth'y to enter for the limited purposes of clean ing, trash removal, and the like, no! for thepurpose of making a search of the guests belongings.. Therefore, the manager did not have actual auth'y to consent to police search. See Stoner v. California (1964) (hotel guest is to be treated like any other T, and management may not consent to a search of the guest room prior to check-out). (D) is incorrect bc hotel manager did not have apparent auth'y to allow the officer into the hotel room . 'Apparent auth'y," like "actual auth'y," . Is a concept from agency law -if the principal puts the agent in such a position that the world reas Infers that the agent has actual auth'y to do Act, then the agent is deemed to have apparent auth'y to do X even though the agent does not have actual auth'y to do X. Here, ∆ hotel guest (the principal) prob has, merely by checking into the room and not indicating o/w, conferred on hotel man gment (the agent) apparent auth'y to enter for ltm1ted purposes like cleaning. But . the guest has not conferred apparent auth'y on management to search the room, or to give consent to law enforcement to search the room -that's bc renting a hotel room is not commonly understood to confer such auth'y on hotel management. Since hotel management did not have apparent auth'y to consent to the search, police's reliance on what they thought was apparent auth'y was not reas, and therefore not effective. Consequently, the defendant's basic reas expectation of privacy In her temp hotel dwelling prevailed, and was enough to make warrantless entry a 4AM violation, as further described in Choice (A).
(A) No, bc the troopers could reasonably rely on the computer report and the search was incident to arrest. (B) No, bc troopers may lawfully search passenger compartment of a car incident to a valid traffic stop. (C) Yes, bc there was no arrest for traffic violation and no lawful arrest could be made on the basis of the warrant. (D) Yes, bc there was no PC or reasonable suspicion to believe drugs were in the car. Troopers lawfully stopped Driver on turnpike for exceeding speed limit by 4MPH. One trooper approached car to warn Driver to drive w/in limit. Other trooper remained in patrol car and ran a computer check of license number. Computer check indicated there was outstanding warrant for Driver's arrest for unpaid traffic tickets. Troopers then arrested Driver. After handcuffing her, troopers searched her and car, and discovered 10 glassine bags of heroin in paper bag on back seat of car. Later, it was learned that Driver paid the outstanding traffic tickets 10 days earlier and the warrant had been quashed, but ct clerk had failed to update computer system, which continued to list warrant as outstanding. Driver charged w/ unlawful possession of heroin. Her attorney filed motion to suppress use as evidence of the heroin found in the car. Should the motion be granted?
(A) is correct. Evidence genly will not be suppressed where police reasonably held a GF belief that their actions leading to its discovery were authorized by a valid warrant. Here, arrest was made in GF belief that there was valid outstanding warrant, so court's clerical error would not req'r suppression. (computer check on Driver's license number revealed outstanding warrant for Driver's arrest based on unpaid parking tickets, thus troopers had no reason to believe warrant was invalid). (B) is incorrect bc absent a custodial arrest or PC, a traffic stop does not authorize a full-blown search of passenger compartment. (D) is incorrect bc neither PC nor reasonable suspicion was reqr'd, as the search was incident to an arrest. While true that the arrest warrant turned out to be invalid, evidence genly will not be suppressed where, as in this case, police reasonably held a GF belief...
Police suspected Woman of growing marijuana in her private residence. Narcs went to her neighborhood in middle of the night. Nothing unlawful could be seen from the street, so officers walked into neighbors' yard and looked through Woman's kitchen window, which had neither drapes nor shades. Officers observed what appeared to be marijuana plants being cultivated under grow lights in the kitchen. Using this info, officers obtained search warrant. Execution of that warrant netted numerous marijuana plants. Woman was charged w/ possession of marijuana. Woman moved to suppress the marijuana plants recovered when warrant was executed, claiming that the evidence supporting the warrant was obtained through search that violated the 4AM. Should the marijuana plants be suppressed? (A) No, bc Woman could have no reasonable expectation of privacy concerning activities that she exposed to the view of her neighbors. (B) Yes, bc the officers' clandestine observation of the plants violated Woman's reasonable expectation of privacy concerning activities occurring in her home.
(A) is correct. The police's conduct here essentially constitutes trespass onto the property of the neighbors. There was no trespass onto Woman's prop: the marijuana plants were in plain view of the neighbors. A Woman has no standing to complain of any police trespass on the neighbors' property, her challenge will fail.
∆ arrested and taken to police HQ, where given her Miranda warnings. ∆ indicated she wished to call her lawyer and was told she could do so after her fingerprints taken. While being fingerprinted, h/o, ∆ blurted out, "Paying lawyer is a waste of money bc I know you have me." At trial, ∆'s motion to prevent intro of the statement she made while being fingerprinted will be denied, most prob bc... (A) the statements were volunteered and not the result of interrogation. (B) fingerprinting is not a critical stage of the proceeding reqr'g the assistance of counsel.
(A) is correct. ∆'s confession will be admissible bc it was *volunteered*. right to counsel under Miranda is only triggered by an interrogation. Here, police showed no intention of interrogating the ∆ until they did, or until there was a "critical stage" in the inquiry, they needn't have responded to her request. mere taking of fingerprints would not in and of itself trigger the right to counsel; and volunteered confessions are admissible. (D) is incorrect. While, fingerprinting is not a critical stage of the proceeding reqr'g the assistance of counsel, it ignores the fact that ∆ 's statement is a confession. While (D) recognizes that there's no prob w/ the 6AM right to counsel, it doesn't address the 5AM. In fact, the reason it will be admissible is that it was volunteered, and thus there can't be 5AM "interrogation" prob. If police had, in fact, interrogated ∆ w/o honoring her request to see her lawyer, her confession would be inadmissible.
(A) It may compel production w/o granting immunity bc suspect was not compelled to write a diary. (B) It may compel production only if suspect is granted use and derivative use immunity from the act of production. (C) it may compel production only if suspect is granted transactional immunity. State grand jury investigating murder learned key suspect might've kept diary. Grand jury issued subpoena duces tecum reqn'g suspect to produce any diary. Subpoena made clear that grand jury was seeking only diary and not any testimony from suspect. Suspect refused to produce diary, citing 5AM. Under what circums, if any, could grand jury compel production of diary over suspect's 5AM privilege?
(B) is correct; protects against danger thatsuspect, merely by producing diary, might be held to have authenticated It. Confusing thing about Q is that at first glance, 5AM privilege against self-incrimination doesn't seem to play any role. What privilege protects against is govt's compelling person to make a testimonial commc'n, and it's hard to see what testimonial commc'n is being compelled here. After all, the govt didn't compel suspect to keep a diary (if he indeed kept one). But 5AM has also been held to protect against orders compelling person to produce (i.e., deliver to the govt) a doc or other thing, if the act of production would have testimonial significance by, say, authenticating doc or thing. So here, the govt, by issuing the subpoena, is in effect saying to suspect, "If you have kept a diary, give us that diary, and we'll know from the fact that you gave it to us that you are conceding that it is indeed something you wrote." So suspect's mere act of complying w/ the subpoena would amount to implied testimony that diary was written by him. BC of above analysis, govt may compel production only if it gives suspect some sort of immunity against the testimonial consequences of being reqr'd to produce diary. Of two sorts of immunity -transactional and use -mere use immunity, narrower of the two, suffices for 5AM purposes. So here, as this choice indicates, govt would have to give "use and derivative use immunity from the act of production"; what this means Is that diary would be admissible, but only ALA govt had some other, wholly-indep, way to prove to jury that this was a diary kept by suspect. EX , prosct'n might have a friend or relative of suspect testify that she saw suspect keep diary w/ a cover that matches this one, and/or that the witness now recognizes handwriting as belonging to suspect -that way, the government would not be relying in any way on the suspect's act of turning over this particl'r diary in order to show tha diary was kept by suspect. (A) incorrectly ignores prob that mere prod'n of diary might constitute authentication of it. If suspect complies by producing his diary, this mere act of production will itself tend to authenticate diary, and thus be implicitly testimonial. See Choice (B) for more about this prob.
(A) Attempted murder only. (B) Manslaughter only. (C) Murder or manslaughter. At crim trial, evidence showed ∆'s Neighbor tried to kill ∆ by stabbing him. ∆ ran to his room, picked up gun, and told Neighbor to back off. Neighbor did not, but continued her attack and stabbed him in arm. ∆ then shot Neighbor twice. Neighbor fell to floor and lay quietly moaning. After few sec, ∆ fired 3rd shot into Neighbor. Jury found Neighbor died instantly from 3rd, and that ∆ was no longer in fear of being attacked by her. ∆ could properly be convicted of which of following degrees of criminal homicide, if any?
(C) is correct. Whether ∆ is guilty of murder, or guilty only of manslaughter, depends upon whether he fired the third shot in the heat of passion provoked by the neighbor's earlier attack. (B) is incorrect bc ∆ could also be convicted of murder if he did not fire the third shot in the heat of passion.
(A) grant motions of both kidnapped citizen and accomplice. (B) grant motion of the kidnapped citizen and deny motion of accomplice. (C) grant motion of accomplice and deny motion of kidnapped citizen. (D) deny motions of both kidnapped citizen and accomplice. FBI agents, w/o a warrant and w/o permIssIon of Mexican law enforcement or judicial officers, entered Mexico, kidnapped an American citizen wanted in US for drug smuggling violt'ns, and forcibly drove him back to Texas. Thereafter, agents, again w/o warrant, broke into Texas home of accomplice of kidnapped citizen, and arrested her. Kidnapped citizen and his accomplice were both indicted for narcotics violt'ns. Both moved to dismiss indictment on ground that their arrests violated 4AM. Ct should...
(D) is correct bc there is no good answer either way. Re kidnapped citizen, Kerr held "forcible abduction is no sufficient reason why the party should not answer when brought w/in JX of ct which has the right to try him for such an offense." Ker was a case in which agents abducted an American citizen from a foreign country, so it's on all fours w/ the facts here ( and it's never been overruled). Re accomplice analysis, bc indictment preceded the arrest, and was not in any way the product of the later illegality. (The mere fact that prosct'n had the ability to try the accomplice bc it had her in custody through an illegal arrest does not make a diff. "Illegal arrest does not void a subseq prosecution." Gerstein v. Pugh, 420 US 103 (1975).) In summary, neither defense works. The warrantless entry into the accomplice's home to arrest her violated her 4AM rights. Payton (warrant reqr'd for entry into private dwelling to arrest the inhabitant, if there are no exigent circums). This violt'n would have entitled the accomplice to suppress any evidence found incident to the arrest. But the violt'n does not entitle the accomplice to have the indictment dismissed.
Police received info from undercover LEO that she'd just seen two men (whom she described) in red pickup selling marijuana to schoolchildren near city's largest high school. A few min later, two LEOs saw a pickup fitting the description a half block from the school. Driver of the pickup matched description of one of the men described by the undercover LEO. The only passenger was Young Woman who was in the back of pickup. LEOs saw her get out and stand at nearby bus stop. They stopped pickup and asked Driver to exit pickup; they then searched Driver's person. In pocket of Driver's jacket, LEOs found small bottle of pills they recognized as narcotics. They arrested Driver and cuffed him to back of police car. LEOs then broke open locked toolbox attached to flatbed and found small sealed envelope inside. They opened it and found marijuana. They also found a quantity of cocaine in the glove compartment. After completing their search of the driver and the pickup, LEOs went over to Young Woman and searched her purse. In her purse, they found a small quantity of heroin. Both Driver and Young Woman arrested & charged w/ unlawful possession of narcotics. If Driver moves to suppress the use as evidence of the marijuana and cocaine found in the search of the truck, the court should (A) grant motion as to both the marijuana and the cocaine. (B) grant the motion as to the marijuana but deny it as to the cocaine. (C) deny motion as to the marijuana but grant it as to the cocaine. (D) deny motion as to both the marijuana and the cocaine.
(D) is correct. Arrest of driver justified both the warrantless search of the toolbox, and that of woman's purse. Police may search driver's vehicle w/out a warrant if they have probable cause to believe that it contains contraband or evidence of a crime. The allowability of the marijuana search is relatively evident (since the officers who stopped truck were informed by another officer that, only few minutes earlier, truck's occupants had been observed selling marijuana; thus arresting officers had probable cause to search driver's person for drugs). Once officers found drugs (the maruinuana) on driver, they then had probable cause — which they may even have had before the stop! — to believe truck would contain drugs. Given that belief, they were entitled to search truck for drugs w/o first getting warrant. Re scope, when police stop a vehicle and have probable cause to believe that contraband is contained in it, they may search any container in the vehicle that could possibly contain the obj of the search. Since officers were searching driver's truck for evidence of a recent marijuana sale, the obj of search was marijuana, which can be stored in very small containers. Both glove compartment of the truck and toolbox in the flatbed were large enough to contain the drugs, so police could lawfully search them w/o a warrant. By time police started their search of truck itself (as opposed to driver's person), they already had probable cause to believe truck would contain evidence of narcotics possession, the offense for which they had arrested driver. So they were entitled to search entire truck (not just its passenger compartment) for drugs... Also seemingly relevant would be Gant, though that case does not actually come in here: suppose police had merely stopped the truck for, say, a traffic violation, arrested driver for that violation and cuffed him, and then did search of passenger compartment incident to arrest, w/o any probable cause to believe drugs or contraband would be found w/in truck. In this ex, Gant would have've search of truck illegal. But here, since police already apropl'y obtained probable cause to suspect truck would contain drugs before they started the truck search, Gant is irrelevant, and the search was proper.
Are warrants required for the following? 1. to arrest in public 2. to arrest someone in their own home 3. to arrest someone in someone else's home
1. no warrant req'd 2. arrest warrant is req'd 3. needs to be an arrest warrant and a search warrant
(A) No, bc ∆ voluntarily waived his right to counsel. (B) No, bc ∆ trial court's error was harmless in light of the overwhelming evidence. (C) Yes, bc ∆ was not capable of effectively representing himself. (D) Yes, bc record does not establish a valid waiver of the right to counsel. Waiver of right to counsel problem: ∆ charged with armed robbery. ∆ had only an eighth-grade education and no legal knowledge. At a pretrial hearing, ∆ told judge he was unhappy w/ appointed public defender, and that he wanted judge to appoint another lawyer. Judge refused to appoint another lawyer, telling ∆, with no further explanation, that his only other choice was to represent himself. ∆ said the would represent himself at trial then, as "anything [was] better than having this lawyer." ∆ did not raise the subject again, and he represented himself at trial. After hearing overwhelming evidence of ∆'s guilt, jury convicted him of armed robbery. On appeal, ∆ has requested a new trial on the ground that he was deprived of his right to counsel. Should the appellate court grant ∆'s request?
(D) is correct. A trial judge must ensure a ∆ is made aware of the dangers and disadvantages of self-representation, and must establish that a ∆ who chooses self-representation makes such a choice 'with eyes open.' Here, judge rejected ∆'s request for a different appointed counsel, but the judge accepted ∆'s decision to represent himself without explaining "the dangers and disadvantages of self-representation." harmless-error analysis is not used in cases where a ∆'s waiver of the right to counsel was ineffective.
Terry Stop/Miranda/4AM In a city, a number of armed bank robberies were committed near closing time by a masked man wearing a white hooded sweatshirt and blue sweatpants. Police saw a man (Man) wearing a white hooded sweatshirt and blue sweatpants pacing nervously outside one of the city's banks just before it closed. Police stopped Man and frisked outer layers of his clothing for weapons, but found none. Police asked Man what he was doing outside bank, and pointed out that he was wearing clothing similar those worn by perp of recent robberies. After pausing for several moments, Man confessed. Police had not provided him with any Miranda warnings. After being charged w/the bank robberies, Man moved to suppress his confession. The parties agreed, and the court properly found, that the police had reasonable suspicion but not probable cause at all times before the man confessed. Should the man's motion to suppress be granted? (A) Yes, bc the confession was the fruit of a 4AM violation, even though there was no Miranda violation. (B) Yes, bc the confession was the fruit of a Miranda violation, even though there was no 4AM violation (C) Yes, bc the confession was the fruit of both a 4AM violation and a Miranda violation. (D) No, bc there was neither a 4AM violation nor a Miranda violation.
(D) is correct. No 4AM violation bc the stop, frisk, and questioning were permissible, under Terry, based on reasonable suspicion. No Miranda violation bc warnings are not required for Terry stops. (See Berkemer)
The double jeopardy clause does not come into play until (a) there has been a conviction/acquittal, or (b) the trial has begun?
(b) is correct
An affidavit, the basis of a search warrant, will be found to be invalid if:
(i) a false statement was included therein; (ii) the affiant intentionally recklessly included the false statement; AND (iii) the false statement was material to the finding of probable cause
A warrant must... [four elements, longer version]
(i) be issued by a neutral and detached magistrate, (ii) provide a clear showing of probable cause based on supportive affidavits, (iii) describe w/ sufficient particularity the place to be searched, the items to be seized, and, for arrest warrant, the persons to be arrested, and (iv) it must be performed properly under the knock and announce rule
When does jeopardy attache at (i) jury trial, (ii) bench trial, and (iii) plea deal — if one has been accepted
(i) when the jury is sworn (ii) when the first witness is sworn (iii) when the plea deal is accepted, though if there's a breach of the pela deal then charges can be reinstated
to ensure that a ∆'s guilty plea is intelligent and voluntary, a judge is constitutionally required to confirm that the ∆ understands the following...
-the nature of the charge; -the maximum possible penalty and the mandatory minimum penalty for the offense; -that he is waiving his right to a jury trial as a result of pleading guilty.
For how long will the invocation of Miranda last?
14 days: LEOs can go back to a suspect who has invoked after after a fortnight,, and then Mirandize him and seek a confession.
There must be at least [blank] jurors.
6
What is use immunity?
A guarantee government prosecutors give to a witness to not use the witness's self-incriminating compelled testimony as evidence against the witness in a subsequent criminal prosecution. A witness who receives use immunity may still be prosecuted, but based only on evidence not gathered from the protected testimony.
What constitutes proper grounds for Ineffective Assistance of Counsel?
Atty's conduct must so undermine proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result; i.e. there must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different."
What constitutes custody under Miranda?
Custody is where a reasonable person believes they are not free to leave, and interrogation is questioning by a govt actor or his agent that seeks to elicit an incriminating response.
Does the 4AM bar the use of evidence obtained in a warrantless search of an alien's home in Mexico?
No, 4AM doesn't apply abroad
What is the Blockberger Test?
For purposes of the Double Jeopardy Clause, two crimes do not constitute the "same offense" if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes (There is no constitutional requirement that all charges be brought in the same prosecution)
What determines reasonableness of a S&F stop?
For the reasonableness of an investigatory stop, courts will look to the totality of the circumstances.
What is required in order to make an arrest?
If, based on probable cause (based on all facts and circumstances presented) there are grounds to believe a crime has been committed.
Will evidence be suppressed where police reasonably held a good-faith belief that their action leading to its discovery was authorized by a valid warrant?
Generally no
What is the Public Safety Exception to Miranda?
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.
When are tainted Miranda confessions allowed?
In the following limited circumstance, tainted miranda confessions can be used: (i) grand jury; (ii) prior inconsistent statement; (iii) public safety exception; (iv) physically fruits (they can come in from a tainted miranda confession though the statements cannot)
Incompetency [can/cannot] work as a bar to trial; Incompetency [can/cannot] work as a defense to the charge;
Incompetency can work as a bar to trial; Incompetency cannot work as a defense to the charge;
Which stage, if any, of the following is a "critical stage" requiring the right to counsel?Initial appearance and lineup
Initial appearance is a critical stage, lineup is not
What is the Gant ruling? (vehicular search incident to arrest after vehicle's occupants have been arrested)
LEOS must demonstrate an actual and continuing threat to their safety posed by an arrestee, or a need to preserve evidence related to the crime of arrest from tampering by the arrestee, in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured
LEOs can do a pat down terry frisk for [blank] only.
LEOs can do a pat down terry frisk for PROTECTION only. [If the police feel what they believe to be contraband, the police can take it as long as they can feel it w/o manipulation.]
May LEOs examine a person's phone on arrest?
LEOs may examine the physical attributes of a person's phone on arrest, though may not examine the data on the phone
Do LEOs need probable cause to pull over a vehicle?
No, LEOs need only reasonable suspicion of criminality in order to pull over a vehicle ( see terry stop of vehicle) h/o not getting into the trunk w/o probable cause
Four requirements of a warrant
Neutral magistrate; Probable cause; Description with sufficient particularity; Knock and announce
Does 5AM rights against self-incrim allow ∆s to refuse to participate in lineups?
No
Does Miranda apply to blurted out or spontaneous admissions.
No
May police make a warrantless search of a vehicle parked within the curtilage?
No
Will an attorney changing legal strategy w/o informing ∆ constitute Ineffective Assistance of Counsel?
No
Does a corporation have 5AM rights?
No (a corporation may not rely on the privilege to refuse to comply with a grand jury subpoena of corporate records ... since production of the records could not amount to a violation of the corporation's non-existent privilege against being required to incriminate itself).
under the doctrine of evanescent evidence, may police take a blood sample from a suspect w/o a warrant?
No (but can take blood from the street).
Does double jeopardy attach to the grand jury stage?
No (thus, even when an indictment is handed down and∆ attorney moves to have it quashed, prosecution can always re-indict based on new evidence)
LEO's use of deceit to ender a dwelling—Problem: X, an undercover narc, falsely represented themselves to ∆, a seller of narcotics, as a potential customer of narcotics. ∆ invited X into home for express purpose of selling the agent narcotics; X then saw narcotics in ∆'s home, and purchased some. Is there a dispositive 4AM issue here?
No, X's deceit does not nullify ∆'s consent to X's entry: ("[W]hen, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.")
Individual's arrest and incidental search were based on warrant that was quashed 17 days earlier but, due to court employees' clerical error, still showed up in computer database. Must the evidence from the search be suppressed?
No, a good faith exception is applied to the exclusionary rule (see Arizona v. Evans)
Does an aerial observation violate one's reasonable expectation of privacy.
No, an aerial observation does not violate one's reasonable expectation of privacy.
Does a LEO need probable cause to make a stop (such as stoping someone on the street for S&F)?
No, but there must be reason to believe criminal activity is afoot. (e.g. This brings to mind the classic scenario of someone walking near, especially in the direction away, from a bank while holding a gun no long after the bank has been robbed)
Is a voluntarily uttered statement subject to Miranda?
No, statements not in response to to any "interrogation," are no effected by Miranda
Are random traffic stops permissible?
No, there must be reasonable suspicion in order for random stops to be permitted (unless every single car is being stopped!)
Exigent circumstances problem: LEO arrive at dwelling which they believe to be common spot for drug dealing. They arrive w/o a warrant, knock on door, announce their presence, and tell occupants they'd like to speak w/ them. LEOs then hear yelling and repeated toilet flushing. LEOs bust in, see occupants flushing drugs down toilet, and arrest them. At their trial, may occupants move to suppress the drugs?
No. Exigent circumstances can excuse the lack of a warrant, as they did here. There is no such thing as a police created exigency exception, except where police actually violate the 4AM or threaten to do so (e.g. falsely claiming to have a warrant). Here, the police's showing up, and knocking and and announcing did not create the exigent circumstances. (note: the police did not even need to have probable cause to believe drug dealing was routinely taking place at the dwelling.)
Would Miranda be triggered when an inmate believes he's talking to another inmate?
No. In that situation, the ∆ doesn't need the Miranda warnings bc he doesn't even know he is talking to an officer and can therefore not feel that he has no choice but to talk because of the officer's position of authority. Miranda protections only occur when there is an "official" interrogation.
May LEOs search a suspect's home incident to arrest?
No. LEOs can search the immediate area of arrest, but not the entire home. H/o, if they can articulate grounds to believe that an accomplice was involved, they may look anywhere an accomplice may be hiding. E.g. cannot search in nightstand bc accomplice couldn't possibly hide there
Does a driver having been arrested for a traffic violation automatically entitle police to do a complete search of the passenger compartment?
No. Police may search driver's vehicle w/out a warrant if they have probable cause to believe that it contains contraband or evidence of a crime
Is there an expectation of privacy in items held out to the public?
No. generally there is no expectation of privacy in items held out to the public. (including handwriting, voice, garbage on the street, car on the street, abandoned property, private bank records, exterior of one's cell phone)
Does a warrant originally based on an invalid affidavit defeat evidence gathered from the search relying on such warrant?
No; Even where the affidavit of a search warrant is found to be invalid — a high standard — police may still rely on that standard.
May witness apply 5AM privilege in order to avoid incriminating others?
No; e.g. person X cannot plead the 5th where their answer would not incriminate them
Does a search warrant authorize police to search persons found on premises?
No; for police to search persons found on premises of home ot be searched, such persons must be named
What is the rule of double jeopardy?
One cannot be tried (c.f. charged) twice for the same crime by the same sovereign. Same sovereign only encompasses the state: state to state is oaky and a state to fed is okay, but state to county or vice versa is not okay. Jeopardy attaches at jury trial when the jury is sworn, and at a bench trial when the first witness is sworn, and if there's a plea deal accepted it attaches when its accepted, though if there's a breach of the pela deal then charges can be reinstated. One can be charged with all crimes, but only convicted of the greater or lesser offense bc o/w it violates jeopardy.
Is right to counsel available in misdemeanor cases?
Only where imprisonment is actually imposed, o/w its gen not available
What does the Plain View Doctrine provide?
Police may make a warrantless seizure when they: (i) are legit on the premises; (ii) discover evidence, fruits or instrumentalities of crime, or contraband; (iii) see such evidence in plain view; and (iv) have probable cause to believe (that is, it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime. (Important note: Under plain view doctrine, LEO must be legitimately on the premises and see such evidence in plain view.)
Who bears burden to show that ∆ has waived their rights under Miranda? What is the standard to show ∆ has waived their rights under Miranda?
Prosecution is responsible to show that ∆ has waived their rights under Miranda. Standard is a preponderance of the evidence.
Standing is required for a person to raise what kind of objection to a particular search or seizure? (hint: one of the AMs)
Standing is required for a person to raise a 4AM objection to a particular search or seizure. (Standing in this context means that the rights guaranteed by the 4AM are personal and may not be asserted on behalf of others)
Errors involving ∆'s right to have counsel of his choice fall into which area: structural-defects or non-structural-defects?
Structural-defects, therefore harmles-serror analysis will not suffice.
Once suspect unambiguously invoked their Miranda right, what must the LEOs do?
The LEOs must honor the right, but a suspect can waive the right as long as the waiver is voluntary, intelligent, and knowing.
May sense-enhancing tech be to obtain info from inside a suspect's home that could not o/w be obtained without physical intrusion?
The answer depends on whether the tech in question is in the general public use. A thermal imager would not be permissible, whereas a telephoto camera lens would be.
∆ sold heroin to Addict. Addict later stopped by 2 LEOs for speeding 30mph over limit. LEOs required Addict get out of car. One LEO told Addict he was arresting him pursuant to dep't policy of arresting all persons stopped for going more than 20MPH over limit; that LEO cuffed Addict, escorted him to patrol car, and kept watch over him there. Other LEO searched passenger compartment of Addict's car and found the heroin concealed under rear seat. The ∆ has now been charged with illegally selling the heroin found in Addict's car. The ∆'s motion to prevent introduction of the heroin into evidence will most probably be (A) granted, bc the heroin was not in plain view. (B) granted, bx scope of the search was excessive. (C) denied, bc the ∆ has no standing to object to the search. (D) denied, because the search was proper as incident to a valid full custodial arrest.
The answer is (C) (here 'the ∆' is diff than Addict)
What is the scope of a search where someone has given LEO voluntary consent to search their home?
The scope of the search may be limited by the scope of the consent; h/o, the scope generally extends to all areas to which a reasonable person under the circumstances would believe it extends.
Change the following sentence to make it conform with the Strickland standard: There must be a showing by clear and convincing evidence that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
There must be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. One hoping to secure a reversal by IAC need only show by a reasonable probability — rather than by clear and convincing evidence — that, but-for their counsel's unprofessional failure to object to an introduction of a certain bit of evidence, the jury would not have returned a guilty verdict.
(T/F) Absent a custodial arrest or probable cause, a traffic stop does not authorize a full-blown search of the passenger compartment.
True
(T/F) Jeopardy does not attach at a preliminary hearing
True
T/F: Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt
True, except for prior convictions. If a fact would increases the penalty for a crime beyond the prescribed statutory max — e.g. whether the value of a stolen diamond, in the context of a sentencing scheme whereby thefts of a value over a certain amount are mandatorily punished more severely —
Under a protective-sweep rationale, may an LEO admit evidence they found in a closet? what about in a drawer?
Under a protective-sweep rationale, LEOs are not entitled to look in places that are too small to hide a human. Therefore, something found in a closet can presumably be admitted, while something in a drawer may not be.
What is the exigent circumstances exception permitting warrantless search & seizure?
Under exigent circumstances — such as reason to believe evidence will be destroyed — police may also enter home w/o a warrant, provided the officers did not create the exigency through an actual or threatened 4AM violation.
What constitutes a voluntary waiver of Miranda?
Voluntary means no threats or deception. Intelligent and knowing means they understand the rights and what it means to waive them. The waiver must be voluntary, intelligent, and knowing.
Do arbitrary denials of bail constitute DP violations?
Yes
If a 5AM privilege is not claimed in civil proceedings, will it be waived for later criminal proceedings?
Yes
May a state grant broader rights under its own constitution than are granted by the federal Constitution?
Yes
May a LEO pull over driver where they reasonably believe a traffic violation took place? May a LEO pull over driver where they want to investigate an unrelated crime for which they do not have PC?
Yes and no
if a single course of conduct by ∆ violates the laws of two states, may the second state prosecute ∆ for violating its laws regardless of the outcome in the first state's prosecution of ∆ for that same conduct? i.e. is there a violation of DJ?
Yes it may and no there's no Double Jeopardy violation. (In any double jeopardy problem where there are two separate prosecutions, by two separate governments, the "dual sovereignty" doctrine generally prevents the Double Jeopardy Clause from ba"ing the second prosecution. )
Is a life-w/o-parole sentence permissible for a juvenile ∆? If So, when?
Yes, a juvenile may be sentenced to life-w/o-parole. However, they may only receive such a sentence if they have committed a homicidal offense. A kid cannot be put in prison for life unless they killed.
May businesses which are subject to extensive regulation be subjected to warrantless, unannounced searches?
Yes, at least where frequent unannounced inspections are the only way to enforce the regulatory requirements.
Can LEOs enter suspect's home to execute arrest warrant?
Yes, but they must suspect that the suspect is home
Is a harsher re-sentencing after a successful ∆ appeal & re-conviction possible?
Yes, h/o, the judge must set forth reasons for the harsher sentence. (There is a public interest in not vindictively punishing ∆s for exercising their rights to appeal.)
Does Miranda apply to protect only testimonial/communicative evidence?
Yes, it only applies to protect against self-incrim (this is basically implied Miranda) and to testimonial/communicative evidence.... therefore, a communication like crying would not be protected. ((crying is not the type of compelled communication or testimony protected by the privilege against self-incrimination. Miranda)
Is evidence obtained by a search which violated the knock and announce rule safe from the exclusionary rule?
Yes, the knock and announce rule is pretty weak
May a ∆ be prosecuted on testimony which was acquired solely as a result of ∆'s grand jury testimony.
Yes, unless ∆ was granted use immunity. When a ∆ is given use immunity (at grand jury) and then prosecuted, the prosecution bears the "affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony."
Where two ∆s are tried together and one ∆ gives a confession, is the other mostly safe from that confession?
Yes. (That does not mean that anything to do with the confession is excluded. Instead, the confession statement may be admitted where all portions to the co-∆ are eliminated, the confessing ∆ takes the stand and subjects themselves to cross-exam, or the confession is being used to rebut the ∆'s claim that their confession was obtained coercively)
If a ∆ ineffectively waives the right to counsel, will the conviction be automatically reversed?
Yes. Even if overwhelming evidence of ∆'s guilt is brought against him, ∆ will have his conviction automatically reversed where he was denied the right to represent himself, such as having effectively waived counsel. (ineffective waiver of counsel is a structural defect)
May arrestee be submitted to check swab analysis (i.e. DNA test)?
Yes; following arrest supported by probable cause for serious offense, arrestee may be submitted to check swab analysis (i.e. DNA test)
Can a judge in a criminal trial require that the burden of persuasion beyond a reasonable doubt be placed on the defense for affirmative defenses?
Yes? The DPC protects a a criminal ∆ against conviction except upon proof beyond a reasonable doubt of every fact necessary to establish each element of the crime, but does not apply in the same way to "affirmative defenses", e.g. self-defense
What is the GF exception to warrantless search?
[if] a LEO can show GF reliance on the existence of probable cause when receiving and executing the warrant → [then] the evidence is nevertheless admissible (Not all states apply this)
What is the S&F formula?
[if] reasonable suspicion + articulable facts (c.f. mere hunch) → [then] SF
What are the common critical stages of a criminal proceeding?
arraignment, post indictment line-ups, post indictment interrogation, plea negotiations, and entering a plea of guilty. (at the critical stages of a criminal proceeding, ∆ has the right to be present)
What does the independent source rule provide?
if plenty of other sources could've led to same discovery, then the evidence is admissible (similar to inevitable discovery doctrine)
What is the Stop & Frisk (S&F) doctrine?
if the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (that is, not merely a hunch), they may detain a person for investigative purposes. If the police also have reasonable suspicion that the detainee is armed and dangerous, they may frisk the detainee for weapons.
What does the exclusionary evidence rule provide?
if the police obtain evidence in violation of a ∆'s constitutional rights, that evidence is inadmissible
when does a 'phone tap' search end?
if they hear what they're listening for, the warrant ends.
Miranda protections apply only when a suspect is both ...
in custody and under interrogation.
What are the exceptions possibly permitting warrantless search & seizure?
incident to constitutional arrest, automobile search, plain view, consent, S&F, hot pursuit, exigent circumstances, evanescent evidence, emergency aid
Are irrebuttable conclusive presumptions and rebuttable mandatory presumptions violations of the Due Process Clause?
irrebuttable conclusive presumptions are always always per se violations of the DPC, while rebuttable mandatory presumptions are not always per se DPC violations. (however, the latter will violate the DPC if it is found to essential be the former)
Two ways a system of traffic stops can be made legal
one is by setting up a checkpoint where every car is stopped and checked for license and registration ( since that eliminates offer discretion). The other is to require a reasonable suspicion of illegal activity before any particular car is stopped.
What are the reqmts for e-surveillance warrants (e.g. wiretaps, video,)?
reqmts are the same as a basic search warrant, but they must also add: (i) to whom they will be listening (ii) specific offense for which they believe they have probable
Of these common actors, which can give consent on behalf of another? Parents spouses roommates, invited overnight guests babysitters, LLs, hotel manages
the following can give consent on behalf of another parents, spouses, roommates, invited overnight guests. (the following cannot: babysitters, LLs, hotel manages)
elements determining the reliability of the informant include...
the informant's prior use and reliability; the informant's status as a member of a reliable group (e.g., a minister); clarity of detail in the informant's tip, showing the informant has personal knowledge of where evidence is located; and the tip includes a declaration against the informant's penal interest (e.g., that he bought narcotics from the individual named)
note: if the police fail to admin the warnings or do so improperly, then they can remirandzie to get a second miranda confession
this is not a question but an important note about re-Mirandizing a suspect
What does the inevitable discovery doctrine provide?
would've discovered it anyway through lawful means, then the evidence is admissible (similar to independent source rule)
What does the intervening acts/attenuation doctrine (4AM) provide?
∆ on his own purges an initial taint by offering evidence again after a period of time (after an attenuation) (this one isn't tested so much)
failure to disclose evidence is grounds for reversing a conviction where...
∆ proves that the evidence is favorable to them and prejudice has resulted. It must be reasonably probable that the case would've been different had disclosure taken place.
What is required for the execution of ∆ who has a mental disorder?
∆ who has a mental disorder may still be executed if they can form a rational understanding of the reason for their sentence
