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MBE Crim. Law III

Introduction to Criminal Procedure

Approach to Criminal Procedure 1-Standing-Possessory interest in place or thing? 2-State Action-is there a gov't actor involved 3-Timing- pre or post indictment or arrest 4-Req's reas. suspicion, probably cause 5-Exceptions
Presumptions -Shifts the burden of production to the opposing party -Must be accepted as true -A jury instruction creating a presumption as to an element of the crime charged is unconstitutional and violates due process
Basis for Appeal -Right to Jury Trial - Arises where imprisonment for more thatn 6 months is possible -Right to Counsel-Arises for felonies or misdemeanors where imprisonment is actually imposed
Reasonable Expectation of Privacy -If there is REP, then police intrusion constitutes a search -If there is no REP, then police intrusion is not a search
Standing D must have a possessory interest in the premises searched in or the items seized.
Search 1-Probable Cause 2-Warrant req', unless an exception applies a)Stop and Frisk b)Search incident to arrest c)Plaint view d)Automobile e)Consent f)Hot Pursuit g)Exigent circumstances
Inventory Search A routine search to protect the arrestee's personal items and safeguard the police from any claims of theft.
Curtilage The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated "open fields beyond".
"Open Fields" Doctrine -Applies to the area beyond the "curtilage" -No REP -No 4th Amendment protection -A view of "open fields" is NOT a search
"Consent" Search Consent extends to all areas where a person with an apparent equal right to use or occupy the property would have joint access to control. -Co-habitant? -Shared area? -Child? -Burden on police
Dog Sniff -A dog sniff of the exterior of a lawfully stopped vehicle does NOT constitute a search -A positive canine alert provides probable cause to search.
Warrant Requirements I -A search may be issued only by a neutral, disinterested magistrate -Search warrants req probably cause, oath or affirmation, and a particular description of the place and object of the search to meet constitutional req's
Warrant Requirements II -A sworn statement of facts showing probable cause to search a particular place for particular items. -A standard for probable cause is obj, meaning that there is sufficient info to persuade a reas. person that a certain place contain evid of a crime
Protective Sweep I -A sweep of the area immediately around the arrestee, and the path, walk or hallways directly to and from him and the entrance to the residence -The purpose is to ensure the security of the law enforcement officers
Protective Sweep II -The protective sweep must be limited to a cursory inspection of places where a person may hide, and last no longer than is necessary to dispel a reas. suspicion of danger
Miranda Law Enforcement officials are req to administer warnings in order to protect an indv who is in custody and subject to direct questioning or its functional equivalent -Prevents against violations of indiv fifth amd. right against compelled self-incrim.
6th Amendment Right to Counsel -Prevents deliberate elicitation of incriminating statements once formal charges have been filed (Critical stages) -Actual waiver is req'
Double Jeopardy The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted.
Created by: Gkell001