MBE Rapid Fire - Criminal Procedure

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?

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

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.

See Katz v. United States

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

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

United States v. Dunn, 480 U.S. 294 (1987)

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

Absent exigent circumstances, the police must knock and announce their identity before entering a home to execute a warrant

More Info: Knock and Announce

Still admissible. Exclusionary Rule does not apply.

See Hudson v. Michigan.

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.

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

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.

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

Only the premises, person, or items described in the warrant

Warrantless search of an arrestee and the area within their immediate control (wingspan, lunging area) during a lawful arrest

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; and

There is reasonable belief that the vehicle contains evidence of a crime

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

Police are only allowed to do a quick pat-down of the suspect’s outer clothing for weapons. Cannot manipulate items.

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

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.

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.

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

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

Grand jury proceedings;

Civil proceedings;

Administrative proceedings; and

Sentencing, bail, and parole hearings

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

compelled, testimonial statements

Observational evidence (e.g. lineups); and

Physical evidence (urine samples, hair samples, handwriting samples)

Holds that statements obtained while in custody as the result of direct questioning are inadmissible unless:

The police advise the suspect of their rights; and

The suspect freely waives those rights

⚠️ Remember: Custody + Questioning REQUIRES Warning + Waiver

When the suspect is in custody at the police station or otherwise not free to leave

Direct questioning; or

Words or actions that a reasonable officer knows or should know will elicit an incriminating response

Police must inform D that he has:

A right to remain silent;

Anything said can be used against him in court;

A right to the presence of an attorney; and

If he cannot afford an attorney, one will be provided for him

Before the interrogation begins

The suspect must make an clear and unambigous request for an attorney and an affirmative invocation of the right to remain silent.

See "Give me a lawyer, dawg" (or did he want a "lawyer dog"?) as an example of an ambigous request for an attorney which did not properly invoke the right.

Yes, the statements can be used to impeach D if D takes the stand. Involuntary statements, however, are inadmissible.

⚠️ Note: Statements cannot be used as direct evidence.

No, D must make an unambiguous statement that he is asserting his right to remain silent

Yes, any physical derivative evidence obtained from a confession that violated Miranda is admissible.

Ex. During an illegal interrogation, D tells police that the gun is hidden under the bed. The gun is admissible at trial.

Yes, as long as the statement was not coerced.

At any post-charge, in-person lineup or showup

Pre-charge lineups or showups; and

Non-live identification (e.g. examining photographic lineups, fingerprinting, photo arrays)

Identification is inadmissible at trial; and

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

All types of ID procedures at all stages of the 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.

⚠️ 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.

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).

More info: Right to counsel

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.

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.

Post-indictment:

In-person lineups and identifications

Preliminary hearings;

Bail hearings;

Interrogations;

Plea bargaining negotiations; and

Appeals as a matter of right

Photo arrays;

Pre-indictment lineups;

Fingerprinting;

Taking handwriting, voice, or blood samples;

Probable cause hearings;

Discretionary appeals; and

Parol or probation hearings

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

No

Yes, can hear evidence that would be inadmissible at trial, including hearsay or illegally obtained evidence

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.

There has been no grand jury indictment or judicial issuance of probable cause;

D has been arrested or released on bail; and

It is within 48 hours of D's arrest (hearing must be held within 48 hours)

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

Courts balance the following:

Length of delay;

Reason for the delay;

Whether D asserted his right to a speedy trial; and

Amount of prejudice to D resulting from the delay

D is entitled to a reversal if:

Evidence was exculpatory; and

Failure to disclose likely affected the outcome of the trial and prejudiced D

For any crime that authorizes a sentence of greater than 6 months (regardless of the actual sentence imposed)

6th Amendment gives D right to confront (meaningfully cross-examine) all witnesses presenting evidence against him.

More info: Confrontation Clause

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)

Davis v. Washington

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.

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.

Prohibits the federal government from imposing cruel and unusual punishment, including torture or punishment that is grossly disproportional to the offense

Death penalty statute is clear and unambiguous (Godfrey v. Georgia);

Statute provides a procedure for review that ensures death penalty is not arbitrary or discriminatory; and

Jury is given opportunity to review mitigating factors (e.g. age, mental capacity);

Jury had the opportunity to find D guilty of a lesser-included offense; and

Jury finds evidence of at least one aggravating circumstance

Prosecution must prove every element of the crime beyond a reasonable doubt

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)

⚠️ Note: Can either be proved by clear and convincing evidence or by a preponderance of the evidence standard.

Blockburger test: Crimes are not the same if each crime contains an element not found in the other.

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.

Jury was unable to reach a verdict;

D violated plea agreement;

D was tried in a criminal court, and is being retried in a civil court (and vice vera);

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

Mistrial for "manifest necessity;"

Retrial is after D's successful appeal on procedural grounds; and

Grand jury can retry D if another grand jury failed to return an indictment

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.