Crim Pro Bar Exam

Probable cause

Trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is planning to commit a crime

What is always required for any valid arrest?

Probable cause

Arrest

Occurs when police take an individual into custody for purposes of criminal prosecution or interrogation

Non-emergency home arrests require

a warrant and reasonable believe that the suspect is at home

What is required for police to execute an arrest of a suspect in a third party’s home?

Search warrant

Detention

A governmental seizure of a person that is less than a full custodial arrest

Common government detentions

Stop and frisk, automobile stop, stationhouse detention, detention to obtain a search warrant, detention of occupants of a premises

To stop or pull over a vehicle,

police must have reasonable suspicion that a law has been violated

Pretextual stops

ulterior motive for a stop is ok if police have probable cause of a traffic violation

Accompanying searches in Automobile stops

Police may search passengers and passenger compartment (but not the trunk) if officer reasonably believes weapons may be present. The entire car may be searched if probable cause arises pursuant to the automobile search exception.

Determining the reasonableness of a search or seizure

1) Is there government conduct constituting a search or seizure?

2) Does D have standing?

3) Is there a valid search warrant?

4) If there is no valid search warrant, was there a valid exception to the search warrant requirement?

Exceptions to the search warrant requirement

Search incident to arrest, Plain view search, Automobile search, Valid consent to search, Exigent circumstances, Stop and frisk

Fourth Amendment only applies to

government conduct (direct or authorized); does not protect against private conduct

authorized conduct

private persons acting at the direction of government agents

Fourth Amendment only applies if

a person has a reasonable expectation of privacy in the thing or place to be searched

Reasonable expectation of privacy exists if D either

a) owns, has a right to possess, or lives in the premises to be serached, or b) is an overnight guest of the premises to be searched

Requirements for a valid warrant

1) Based on probable cause, 2) Precise on its face, 3) Issued by a neutral and detached magistrate

Police affidavit may make warrant invalid if

1) there was a false statement, 2) affiant intentionally or recklessly included a false statement, and 3) false statement was material to finding probable cause

Good faith exception for search warrant

exclusionary rule does not apply if police act in good faith on an invalid search warrant

Police cannot rely on a defective warrant obtained in good faith if

a) affidavit completely lacks probable cause, b) warrant is defective on its face, c) police or government official lied or misled magistrate, or d) magistrate has “wholly abandoned her judicial role”

Automobile Search Exception

If probable cause exists, police may search an entire vehicle (including the trunk) and containers or compartments inside that may contain the evidence they are searching for

Requirements for Automobile Search Exception

1) police must have probable cause to search the vehicle and 2) probable cause must arise before the search begins

Public school searches

To conduct a search, school officials must have reasonable grounds to believe the search is necessary

International Mail search

Officials can open and inspect international mail if they have reasonable suspicion it contains contraband

Immigration searches

Officials may raid a business to determine the citizenship status of its employees

Exclusionary rule does not apply to:

1) Grand jury proceedings, civil proceedings, parole hearings, or administrative cases,

2) Violations of the “knock and announce rule” in executing search warrants,

3) Evidence derived from statements obtained in violation of Miranda

Exclusionary rule

Prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial

Co-defendant confessions

a co-defendant’s confession implicating D is inadmissible against D at a joint jury trial (OK at bench trial)

Confession of a Co-Defendant is admissible if either:

a) Confessing co-D testifies subject to cross examination, b) Ds have separate trials, c) confession is redacted so that all portions referring to the co-D are eliminated, or d) co-D’s confession is used to rebut D’s claim that his confession was obtained coercively

6th Amendment Right to Confront Witnesses

D has a right to have adverse witnesses testify in-person and subject to cross examination

Confrontation: In person testimony is not required if

1) exclusion is necessary for public policy, and 2) reliability of the testimony is otherwise assured

5th Amendment Privilege Against Compelled Self-Incrimination

Any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself

5th Amendment privilege against compelled self-incrimination is only available for

compelled testimonial or communicative evidence

Double Jeopardy

Arises when D is prosecuted with one crime and tried, then charged again based on the same offense

When jeopardy attaches in jury trial

Attaches once jury is impanelled and sworn in

When jeopardy attaches in bench trial

Attaches once the first witness is sworn in

When jeopardy attaches in pleas

Attaches once court accepts a plea agreement

Once jeopardy has attached, retrial is still allowed if either:

a) Hung jury, b) Mistrial due to manifest necessity, c) Retrial after a successful appeal by D, d) D breaches a plea bargain agreement, e) Separate sovereigns

Lineup

witness is shown several possible suspects

Remedy for exclusionary rule violation - harmless error review

For admission of illegally-seized evidence o be upheld on appeal, government must show that it was harmless beyond a reasonable doubt