1
Q
What are 4 key questions you should ask when approaching a 4th Amendment question?
A
- Was there a search or seizure?
- Was the search or seizure conducted by a government actor?
- Was there probable cause?
- Was there a valid warrant?
- Was the warrant defective or did the police act in bad faith?
- Was there an exception to the warrant requirement?
2
Q
What is required for a valid arrest?
A
- Probable cause; and
- Warrant if:
- Suspect is in their own home absent consent or exigent circumstances; or
- Suspect is in another person’s home absent consent or exigent circumstances
3
Q
What is the two-prong test identified in Katz to determine whether or not there was a search?
A
- Did the defendant have a reasonable expectation of privacy?; and
- Was the expectation one that society recognizes as reasonable?
If yes, the search is protected by the 4th Amendment.
4
Q
List examples of objects or things in which there is no reasonable expectation of privacy
A
- Objects knowingly exposed to the public;
- Smells emanating from personal belongings;
- Car VIN #’s;
- Handwriting samples;
- Voice exemplars;
- DNA samples;
- Bank records;
- Phone call records;
- Conversations with government informants;
- Open fields;
- Airspace above property higher than 400 feet
- Naked-eye observations of private property; and
- Discarded property
5
Q
What is considered one’s home for the purposes of the 4th Amendment?
A
- Home/dwelling itself; and
- Curtilage (area surrounding the home). Whether or not area is curtilage depends on:
- Proximity of the area to the home;
- Whether the area is within an enclosure surrounding the home;
- The nature and uses to which the area is put; and
- Steps taken by the resident to protect the area from observation by passersby
6
Q
What are the requirements for a valid warrant?
A
Warrant must be:
- Based on probable cause;
- Supported by oath or affidavit
- Describe with particularity the thing/person to be seized and place to be searched; and
- Be issued by a neutral and detached magistrate
7
Q
What is the “knock and announce” rule?
A
Absent exigent circumstances, the police must knock and announce their identity before entering a home to execute a warrant
More Info: Knock and Announce
8
Q
If police violate the “knock and announce” rule, what happens to evidence discovered during the search?
A
Still admissible. Exclusionary Rule does not apply.
See Hudson v. Michigan.
9
Q
What are 8 exceptions to the warrant requirement?
A
- Searches incident to lawful arrest;
- Automobile search;
- Plain view search;
- Consent;
- Stop and frisk;
- Inventory search;
- Exigent circumstances; and
- Administrative searches
⭐️ The MBE likes to trick you on these. Memorize these exceptions.
10
Q
When does probable cause exist?
A
If the quantity of facts and circumstances would lead a reasonable person to conclude that either:
- The individual in question has committed a crime; or
- Specific items related to criminal activity can be found at that particular location
More info: Probable Cause
11
Q
What is the remedy if police act pursuant to an invalid warrant?
A
Evidence obtained during an unlawful search will be inadmissible pursuant to the Exclusionary Rule.
⚠️ Exception: Evidence is not excluded if police officers relied upon the warrant in good-faith.
12
Q
What is the “Plain-view” doctrine?
A
A warrant is not required to seize an item if:
- The police are on the premises lawfully when they observe the item; and
- The incriminating nature of the item is immediately apparent (police may not move objects to get a better view)
More Info: Plain View Doctrine
13
Q
The scope of a warrant is limited to:
A
Only the premises, person, or items described in the warrant
14
Q
What is a search incident to lawful arrest (“SITLA”)?
A
Warrantless search of an arrestee and the area within their immediate control (wingspan, lunging area) during a lawful arrest
15
Q
Pursuant to a search incident to lawful arrest, can police search the arrestee’s vehicle?
A
Yes, if:
- Arrestee has access to the vehicle compartments;
- There is a reasonable belief arrestee may destroy evidence or pose a danger to the officers; or
- There is reasonable belief that the vehicle contains evidence of a crime
16
Q
What is the exigent circumstances exception to the warrant requirement?
A
Police may search without a warrant if waiting to obtain a warrant will result in imminent:
- Destruction of evidence;
- Escape of the accused; or
- Danger to police or others in the area
More Info: Exigent Circumstances
⚠️ Note: Not applicable if police create the exigent circumstances so they can bypass the warrant requirement
17
Q
What is the scope of a “frisk”?
A
Police are only allowed to do a quick pat-down of the suspect’s outer clothing for weapons. Cannot manipulate items.
18
Q
What is the “plain feel” exception to a Terry Stop?
A
If, during the course of the frisk, the police have probable cause to believe the suspect has a weapon or contraband (e.g. they feel a gun), they may seize the weapon
19
Q
What is the automobile exception to the warrant requirement?
A
Police may search an automobile and persons within it without a warrant as long as they have probable cause.
Police can search any locked containers in the vehicle and the trunk if the areas could reasonably hold the evidence sought (i.e. have probable cause to do so)
Also applies to motor homes, boats, and airplanes.
20
Q
What is the consent exception to the warrant requirement?
A
If a person voluntarily consents to a search, no warrant or probable cause is needed.
Whether or not a person has consented is determined in light of the totality of the circumstances.
21
Q
Does a third party have authority to consent to a search?
A
Yes, if:
- The third party owns or occupies the home; or
- The third party and D jointly own or occupy the home and D is not present (valid even if D had previously objected at another time)
⚠️ Note: If D is home and objects to the third party giving consent, the third party consent is not valid
22
Q
Which types of checkpoints are permissible?
A
- Sobriety checkpoints;
- Checkpoints at or near the border; and
- Checkpoints to obtain information about a recent crime
⚠️ Checkpoints to test for drugs are not valid
23
Q
The exclusionary rule does not apply to which type of proceedings?
A
- Grand jury proceedings;
- Civil proceedings;
- Administrative proceedings; and
- Sentencing, bail, and parole hearings
24
Q
What are the exceptions to the Exclusionary Rule?
A
Evidence may still be admissible if it falls underneath these exceptions:
- Independent source: Evidence is discovered by an independent source;
- Attenutation: Relationship between the primary taint and discovery of evidence is sufficiently attenuated as to break the causal chain;
- Inevitable discovery: Evidence would have been inevitably discovered through legal means
- Good faith: Exists when police officers were acting in good faith on a warrant that was later declared invalid (see more: Good Faith Exception)
- Impeachment: Illegally obtained evidence may be used to impeach D at trial
25
The 5th Amendment privilege against self-incrimination only applies to **what type of statements**?
**compelled, testimonial** statements
26
Under the 5th Amendment, what type of evidence is **not** considered **testimonial?**
* **Observational** evidence (e.g. lineups); and
* **Physical** evidence (urine samples, hair samples, handwriting samples)
27
What are ***Miranda* rights?**
Holds that statements obtained **while in custody** as the result of **direct questioning** are inadmissible unless:
1. The police **advise the suspect of their rights;** and
2. The suspect **freely waives** those rights
## Footnote
⚠️ Remember: Custody + Questioning **\*REQUIRES\*** Warning + Waiver
28
When is a suspect considered in "**custody**" for *Miranda* purposes?
When the suspect is in **custody at the police station** or otherwise **not free to leave**
29
What constitutes an **interrogation** under *Miranda*?
* **Direct questioning**; or
* **Words or actions** that a reasonable officer **knows** or **should know** will elicit an incriminating response
30
What are the **elements** of a ***Miranda*** warning?
Police must inform D that he has:
1. A right to remain **silent**;
2. Anything said can be **used against** him in court;
3. A right to the presence of an **attorney**; and
4. If he cannot afford an attorney, **one will be provided** for him
31
**When** must ***Miranda*** warnings be given?
**Before** the interrogation begins
32
**What must a suspect do** to exercise their rights after *Miranda* warnings have been given?
The suspect must make an **clear and unambigous request** for an attorney and an **affirmative invocation of the right** to remain silent.
## Footnote
See "[Give me a lawyer, dawg](https://www.washingtonpost.com/news/true-crime/wp/2017/11/02/the-suspect-told-police-give-me-a-lawyer-dog-the-court-says-he-wasnt-asking-for-a-lawyer/?utm_term=.0bf1367cf223)" (or did he want a "lawyer dog"?) as an example of an ambigous request for an attorney which did not properly invoke the right.
33
Are statements taken in violation of *Miranda* rights **admissible**?
Yes, the statements can be used to **impeach** D if D takes the stand. Involuntary statements, however, are inadmissible.
## Footnote
⚠️ Note: Statements cannot be used as direct evidence.
34
Does **silence** constitute invoking the right to remain silent?
No, D must make an **unambiguous** statement that he is asserting his right to remain silent
35
Is **physical evidence** seized as the result of an **illegal confession** (i.e. one in violation of *Miranda*) admissible?
Yes, any **physical derivative evidence** obtained from a confession that violated *Miranda* is admissible.
## Footnote
Ex. During an illegal interrogation, D tells police that the gun is hidden under the bed. The gun is admissible at trial.
36
Is **physical evidence** obtained in violation of *Miranda* admissible?
Yes, as long as the statement was not coerced.
37
When does a suspect have a **right to counsel** for a **lineup** or **showup**?
At any **_post-charge_, in-person lineup** or **showup**
38
When does a suspect **not** have a right to counsel for an indentification procedure?
1. **Pre-charge** lineups or showups; and
2. **Non-live identification** (e.g. examining photographic lineups, fingerprinting, photo arrays)
39
What is the **remedy** when a post-charge, in-person lineup occurs without counsel present?
1. **Identification is inadmissible** at trial; and
2. Witness will be prohibited from making a subsequent in-court identification of D **unless** the prosecution can prove that the witness has an **independent source** of identification
40
Due process applies to **which types** of identification procedures?
**All types** of ID procedures at **all stages** of the process
41
What is the **remedy** for a due process violation during the identification process?
D can seek to **suppress** the identification via a suppression hearing.
If D meets his burden, evidence will be **suppressed** and the witness will not be able to subsequently identify D at trial.
## Footnote
⚠️ Exception: if the witness can identify D based upon knowledge from a source that is **independent of the impermissible identification**, they will be allowed to identify D at trial.
42
What is the **6th** Amendment **right to counsel**?
Guarantees D the right to counsel during all **critical stages** of the adversarial process. Only applies to crimes where D is **sentenced to incarceration** (even if the sentence is suspended).
## Footnote
*More info*: [Right to counsel](https://www.law.cornell.edu/wex/right_to_counsel)
43
Does the 6th Amendment right to counsel protect D against interrogations about **other crimes**?
No, the 6th Amendment right to counsel is **offense-specific** (i.e. only applies to interrogations about the offense charged). Thus, the police can question D without counsel present about **any other crimes**.
44
When is the **6th** Amendment right to counsel **triggered**?
Begins with the **initiation** of formal adversarial process (ex. formal charge, indictment, arraignment, or preliminary hearing). Once right is triggered, D is entitled for counsel for **all subsequent proceedings**.
45
Under the 6th Amendment, what are considered the **critical stages** of a proceeding?
Post-indictment:
1. **In-person** lineups and identifications
2. Preliminary hearings;
3. Bail hearings;
4. Interrogations;
5. Plea bargaining negotiations; and
6. Appeals as a matter of right
46
What stages are considered **not** **critical**? (i.e. no right to counsel)
1. Photo arrays;
2. Pre-indictment lineups;
3. Fingerprinting;
4. Taking handwriting, voice, or blood samples;
5. Probable cause hearings;
6. Discretionary appeals; and
7. Parol or probation hearings
47
What is the difference between the **5th** Amendment right to counsel and the **6th** Amendment right to counsel?
5th Amendment:
* Applies to **all crimes**, not offense-specific
* Only applies during **custodial interrogations**
* Must be invoked by a **clear statement** demanding counsel
6th Amendment:
* Only applies to the crime charged, **offense specific**
* Applies to **all critical stages** of a proceeding
* **Automatically invoked** once criminal proceedings have begun
48
Is the prosecutor required to **disclose exculpatory evidence** in a grand jury proceeding?
No
49
Can a grand jury hear evidence that would be **inadmissible at trial?**
Yes, can hear evidence that would be inadmissible at trial, including **hearsay** or **illegally obtained evidence**
50
What is the constitutional **right** to **bail**?
There is **no** absolute constitutional right to bail, but the decision to deny bail must comply with **Due Process**, which requires the denial is not arbitrary.
Any decision to deny bail is **immediately appealable**.
51
When is a **pretrial hearing** to determine if **probable cause exists** required?
1. There has been **no grand jury indictment** or **judicial issuance** of probable cause;
2. D has been **arrested** or **released on bail**; and
3. It is within **48 hours** of D's arrest (hearing must be held within 48 hours)
52
What are the **elements** of a valid **guilty** **plea**?
Must be **voluntarily** and **intelligently** made. D must understand:
* The nature of the **charge** and its **elements;**
* The maximum authorized **sentence** and any mandatory sentencing;
* They have a **right to plead not guilty**; and
* They are **waiving** their right to a **jury trial**
53
What is the **balancing test** to determine whether D's right to a speedy trial has been violated?
Courts balance the following:
1. **Length** of delay;
2. **Reason** for the delay;
3. Whether **D asserted his right** to a speedy trial; and
4. **Amount of prejudice to D** resulting from the delay
54
What is the **consequence** if a prosecutor **fails to disclose** materially exculpatory evidence?
D is entitled to a **reversal** if:
1. Evidence was **exculpatory**; and
2. Failure to disclose likely affected the **outcome** of the trial and **prejudiced** D
55
When does the right to a **jury trial** exist?
For any crime that **authorizes** a sentence of greater than **6 months** (regardless of the actual sentence imposed)
56
What is the **Confrontation Clause**?
6th Amendment gives D right to **confront** (meaningfully cross-examine) all witnesses presenting evidence against him.
## Footnote
*More info:* [Confrontation Clause](https://www.law.cornell.edu/wex/right_to_confront_witness)
57
# Define
testimonial evidence
Written or spoken communications whose primary purpose is to **establish or prove past events** potentially relevant to later **criminal prosecution** (e.g. affidavits, prior testimony)
## Footnote
[*Davis v. Washington*](https://supreme.justia.com/cases/federal/us/547/813/)
58
Are statements made during an **emergency** considered testimonial?
Likely no. Statements made to law enforcement or 911 operators to assist in an **ongoing emergency** are not considered testimonial.
But, statements made **after the emergency** has ceased, or statements to **further** the investigation, will be considered testimonial.
59
Why does **testimonial hearsay** violate the Confrontation Clause?
Since testimonial hearsay is an **out-of-court** statement, D did not have the opportunity to confront or cross-examine the declarant, thereby violating his 6th Amendment right to confrontation.
60
What is the **8th Amendment**?
Prohibits the federal government from imposing **cruel and unusual punishment**, including torture or punishment that is **grossly disproportional** to the offense
61
What is **required** for the death penalty to be **constitutional**?
1. Death penalty statute is **clear** and **unambiguous** (*[Godfrey v. Georgia](https://supreme.justia.com/cases/federal/us/446/420/)*);
2. Statute provides a **procedure for review** that ensures death penalty is **not arbitrary or discriminatory**; and
3. Jury is given opportunity to review **mitigating factors** (e.g. age, mental capacity);
4. Jury had the opportunity to find D guilty of a **lesser-included offense**; and
5. Jury finds evidence of at least one **aggravating circumstance**
62
What is the **burden of proof** in all criminal cases?
Prosecution must prove **every element** of the crime **beyond a reasonable doubt**
63
Who bears the **burden** of proving **affirmative defenses**?
**D**. Generally, the prosecution must prove every element of the case beyond a reasonable doubt. However, D can have the burden to prove affirmative defenses (e.g. insanity, entrapment, duress, or self-defense)
## Footnote
⚠️ Note: Can either be proved by **clear and convincing evidence** or by a **preponderance of the evidence** standard.
64
What constitutes the "**same crime**" for the purposes of double jeopardy?
[Blockburger](https://www.law.cornell.edu/supremecourt/text/284/299) test: Crimes are **not the same** if each crime contains **an element not found in the other**.
## Footnote
Ex. You can be charged with **attempt**, and later charged with **conspiracy** because both require proof of **different elements**.
⭐️ This means that re-trying D for any **lesser included** or **greater included** offense is prohibited because they contain the same, core elements.
65
What are the **exceptions** to Double Jeopardy (i.e. when can D be retried)?
1. Jury was **unable to reach a verdict**;
2. D violated **plea agreement**;
3. D was tried in a **criminal court**, and is being retried in a **civil court** (and vice vera);
4. Dual-sovereignty doctrine:
* D may be prosecuted for the same crime by a **federal** court and a **state** court
* May be prosecuted for same crime by 2 **different states**
5. **Mistrial** for "manifest necessity;"
6. Retrial is after D's successful **appeal** on **procedural grounds**; and
7. **Grand jury** can retry D if another grand jury failed to return an indictment
66
# Define
writ of **habeas corpus**
Mechanism for a person to challenge the **lawfulness of their detention.** It is considered a **collateral attack** on the conviction, and is a separate legal proceeding.
The writ of habeas corpus is **a civil challenge** (not criminal), and there is **no right to counsel**.
MBE Rapid Fire
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