pierceb's version from 2015-07-27 21:35

CRIM PRO: Warrant Requirement


Question Answer
What constitutes a valid warrant?(i) supported by "probable cause" (fair probability that contraband or evidence will be found in the place to be search/seized); (ii) established from facts submitted by a government agent upon oath or affirmation; (iii) issued by a "NEUTRAL AND DETACHED" magistrate, and (iv) describes "WITH PARTICULARITY" the place to be searched and the items or persons to be seized.
What is "knock and announce" rule?Upon executing a warrant, requires officer to knock and announce their presence and purpose before forcibly entering the place to be searched. Unless, officer reasonably believes that it would be futile, dangerous or inhibit the investigation.
Does the exclusionary rule apply to a violation of the knock and announce rule?NO!
NC: when must search warrants be executed?In NC, within 48 HOURS.
NC: Does North Carolina recognize the "good faith" reliance exception when executing a defective warrant?NO! NC doesn't recognize the "good faith" exception.
Informant's tip?Probable cause, police must corroborate tipster's informatin (unless already have a reliable relationship for truthfulness) to allow a magistrate to make a "COMMON SENSE PRACTICE" determination that probable cause exists from the TOTALITY OF THE CIRCUMSTANCES.

CRIM PRO: Warrantless search/seizure Exceptions


Question Answer
What are the warrantless exceptions?ESCAPIST - (1) Exigent Circumstances; (2) Search Incident to Lawful Arrest (SILA); (3) Consent; (4) Automobile Exception; (5) Plain view; (6) Inventory Search; (7) Special Needs; and (8) Terry Stop and Frisk
Exigent Circumstance ExceptionEvidence that would dissipate or disappear (e.g., residue under fingernails); (2) hot pursuit of a felon; (3) person inside a protected area in need of emergency aid to address or prevent injury
Rationale for SILA(1) Officer safety and (2) need to preserve evidence
SILA timingSearch must be "CONTEMPORANEOUS" with the time and place of the arrest (can't wait until get to the station)
SILA search scopeLimited to arrestee's "WINGSPAN", which include the body, clothing, and any containers within his "IMMEDIATE CONTROL"
SILA Automobile Search(1) If arrestee is UNSECURE: may search the interior cabin, including closed containers, but NOT TRUNK. (2) If arrestte is SECURE: only if officer has REASON to believe the vehicle may contain evidence relating to the crime for which he was arrested.
Consent requirements(1) voluntarily and (2) intelligently
Consent to search houseAuthority to consent: "apparent equal right to use or occupy" meaning even a 10 year old may consent ... (2) Apparent Authority: police reasonably believe that person had authority (e.g., parent has authority to consent to search child's room)
3rd Party Cases "Common Authority" Rule(1) Consenting party permits search "in his own right," and (2) defendant "assumed the risk" that co-occupant might permit search.
Automobile Expectation of PrivacyCars are readily mobile and there is a lesser expectation of privacy in vehicles.
Automobile Exception RequirementOfficer have "PROBABLE CAUSE" to believe contraband or evidence of the crime will be found in the vehicle.
Automobile Exception Scope(1) the "ENTIRE VEHICLE" and (2) ALL containers that may reasonably contain the item(s) for which there was probable cause to search.
Plain View requirementsOfficer must (1) have "LAWFUL ACCESS" to the place from where the item can be plainly seen; (2) lawful access to the item itself; and (3) criminality of item must be "immediately apparent." NC: In North Carolian there is fourth element: discovery of the item must be "INADVERTENT."
Inventory search requirementsConstitutional, provided that (1) regulations governing them are "reasonable with scope"; (2) search complies with regulations; and (3) search conducted in "GOOD FAITH."
Inventory search rationale(1) Safeguard owner possessions and (2) ensure police safety.
Special NeedsIn certain cases, the "special needs" of law enforcement, government, employers, or school officials are beyond the general interest in law enforcement (e.g., public school children). Suspicionless drug testing is not permitted where its primary purpose is to gather criminal evidence for general use by law enforcement. Warrantless searches of the person and effects of public school children are permissible to investigate violations of school rules, as long as REASONABLE and NOT EXCESSIVELY INTRUSIVE.
Terry Stop requirementOfficer may "stop" a person WITHOUT PROBABLE CAUSE for a brief detention if he has REASONABLE SUSPICION (supported with "specific" and "articulable" facts) that crime is afoot.
Terry Frisk requirementOfficer may "frisk" a person (after a Terry stop) if he "reasonably believes" that the person is ARMED and DANGEROUS.
Terry Frisk scopePat down of outer clothing, but may reach into clothing and seize any item that the officer reasonably believes, based on its plain feel "PLAIN FEEL DOCTRINE" to be a weapon or contraband. An officer cannot "manipulate" a package to discern that it was likely drugs or weapon.
Terry with automobilesIf reasonably belives driver or passengers are armed and dangerous, he may search the passenger cabin nly in areas where a weapon may be placed.

CRIM PRO: Consequences of violating Fourth Amendment


Question Answer
What is the "exclusionary rule"?A judicially-created rule to deter police conduct. Under the exclusionary rule, evidence "directly" obatined unconstitutionally is inadmissible at the defendant's trial in the prosecutor's case-in-chief.
What will be excluded in North Carolina?Under the N.C. Criminal Procedure Act, evidence excluded only if it was obtained as a result of a "SUBSTANTIAL VIOLATION" of the Act.
What is a "substantial violation" of the N.C. Criminal Procedure Act?To make a determination, the court looks to (1) the IMPORTANCE of the particular interest violated; (2) the extent of the DEVIATION from lawful conduct; (3) the extent to which the violation was WILLFUL; and (4) the extent to which exclusion will tent to DETER FUTURE VIOLATIONS.
Fruit of the Poisonous TreeThe fruit, of secondary evidence, that comes as a result of a constitutional violation (the poisonous tree). But/for officer's illegal act, there would not have been secondary evidence.
What are exceptions to Fruit of the Poisonous Tree?(1) Independent source; (2) inevitable discovery; and (3) attenuation doctrine (the connection between the police misconduct and the confession or other evidence "has become so attenuated as to dissipate the taint.)

CRIM PRO: Sixth Amendment - Right to Counsel


Question Answer
When does person's Sixth Amendment Right to Counsel attach?Automatically upon being "CHARGED." It must be waived by him.
What right is conferred under the Sixth Amendment?6th Amendment states that in all "criminal" cases, the accused has the express constitutional guarantee to "RIGHT T COUNSEL IN HIS DEFENSE."
Massiah: When has accused Sixth Amendment right to counsel been violated?Sixth Amendment violated when the police (1) deliberately ELICIT an incriminating statement (subjective standard); (2) AFTER the defendant has been FORMALLY CHARGED (not arrested); and (3) the defendant did NOT KNOWINGLY, intelligently, and voluntarily waive his right to have an attorney present.
What is Sixth Amendment's scope of protection?Sixth Amendment right is "OFFENSE SPECIFIC," which means that it provides no protection for uncounseled interrogation for other uncharged criminal activity.

CRIM PRO: Fifth Amendment - Miranda/Attorney


Question Answer
What are the Miranda warnings/procedural safeguards?(1) right to remain silent; (2) anything said can and will be used against them in a court of law; (3) they have the right to an attorney; and (4) if they cannot afford an attorney, then one will be provided to them at no cost. NC: right to consult with a family member or friend
What is NC's additional Miranda warning?NC: Right to consult with a family member or friend.
When must a defendant be given Miranda warnings?Before custodial interrogation - (1) in "custody" where a REASONABLE person would not feel they were free to end the encounter and the environment presents the same inherently coercive pressures as a station house questioning and (2) "interrogated" if any conduct by police that they knew or should known is likely to elicit an incriminating response.
How may Miranda rights be waived?"Voluntary and knowledgeable" consent determined by TOTALITY OF THE CIRCUMSTANCES
Must officer honor right to remain silent?Yes, after arrestee has asserted right to remain silent, he must "scrupulously honor" the request, but may reinitiate questioning after significant time. Scrupulously honor = not badger defendant into talking, but instead wait a significant time.
What is the Public Safety Exception?Police interrogation is "reasonably" prompted by concern for public safety. Miranda warnings are unnecessary where the questioning is reasonably prompted by a concern for public safety such as finding a weapon that might harm others.



Question Answer
How to test a confession for validity?14th Amendment due process is violated when the police obtain a statement involuntarily. Determination of involuntariness is based on the "totality of the circumstances." The suspect must have been (1) subjected to coercive police conduct and (2) the coercive conduct was sufficient to overcome the will of the suspect leading to the confession. Overcome by: (1) physical force, (2) psychological pressures, (3) promises or threats. Harmless Error Test Applies
What is the Harmless Error Test prevents an unnecessary new trial when the error alleged would not have affected the outcome at trial.
What is pretrial identification?To ensure that when the witness identifie the person at trial, she is identifying the person who committed the crime, and not the person she has previously seen at the police station. 6th am. right to counsel applies.
Does defendant in a "pretrial identification" have 6th amendment right to counsel?YES! to any post-charge lineup or showup, but NOT photo identification.
How can a defendant attack validity of an identification?(1) unnecessarily SUGGESTIVE and (2) substantial likelihood of misidentification. The remedy is exclusion unless witness identified defendant based on an INDEPENDENT SOURCE: opportunity to observe at time of crime, ease of identification, and existence or absence of prior misidentifications.
Pretrial detentionGov't needs probable cause to bind a defendant over for trial. Soon after arrest, a defendant must e brought before a magistrate who will (1) advise him of rights; (2) set bail; and (3) appoint counsel, if necessary.
Elements to ineffective assitance of counsel6th amendment right to effective counsel. two requirements: (1) deficiency (feel below objective standards of reasonableness) and (2) prejudice (but-for deficiency, the outcome would have been different.) The objective standard for measuring attorney performance is that of "REASONABLY EFFECTIVE ASSISTANCE." The defendant has the burden to show prejudice affecting the outcome.
Double JeopardyFifth Amendment right. Bars retrial for the same offense and in the same sovereign. Same offense = only one offense has an element not contained in the other. Same sovereign = means same state or other state courts in the state, but not federal and state court of by two states.
What are exceptions to Fifth Am. Double Jeopardy same offense ruleExceptions (1) hung jury; (2) mistrial; (3) retrial after successful appeal; (4) sentencing on retrial.
When does jeopardy attach?Jury trial = empaneling and swearing of jury. Bench trials = when first witness is sworn.
NC: In criminal trial, how many jurors must vote affirmative for verdict?must e unanimous
What must prosecutor disclose to crominal defendant attorney?all material exculpatory evidence before trial.
Sentence requirement for a jury trial?Punishment exceeds 6 months imprisonment. NC provides jury trial right even for petty offenses.



Question Answer
What is the test for the validity of an "out-of-court identification" (lineup/photobook)Whether (1) the identification was IMPERMISSIBLY SUGGESTIVE and (2) whether the procedure was HIGHLY LIKELY to lead to an IRREPARABLE MISIDENTIFICATION.