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What is the exclusionary rule?
all evidence seized in violation of the 4th is inadmissible
Evidence excluded by the ER for violating the 4th, 5th, or 6th may be used to do what?
impeach testimony given on either direct or cross
What is the GF exception to the ER?
evidence obtained pursuant to an invalid warrant won't be excluded if a reasonably well-trained officer would have believed that the warrant was valid
To whom does the 4th apply?
only to gov and not private conduct
When will private conduct be subject to 4th scrutiny?
when search and/or seizure is at the direction of the gov or pursuant to an official policy
When are AW not generally required before arresting someone?
in public place with PC
Does the non-emergency arrest of a person in his home require an AW?
When does an arrest occur?
person isn't free to leave and is thus deprived of his freedom of action in a significant way
What is the knock and announce rule?
unless exigent circumstances exist, the arresting officer must knock and announce his identity before entering to make an arrest
Does violation of the knock and announce rule automatically trigger automatic exclusion of evidence seized after the violation?
REP is satified only when the D has shown what 2 things?
- (1) standing
- (2) objects to be seized not held out to the public
In NC what factors are used to determine whether garbage has been held out to the public?
- (1) location
- (2) how exposed to public garbage is
- (3) whether garbage was picked up by the collection agency prior to the search by LEO
If there is a REP then police intrusion constitutes what?
t/f - If there is no REP then police intrusion doesn't constitute a search
What is the open fields doctrine?
- applies to the area beyond the curtilage
- no REP
- no 4th protection
- a view of "open fields" is NOT a search
A reasonable search under 4th must be conduct how?
- (1) pursuant to warrant
- (2) under an exception to warrant requirement
What is the plain view doctrine?
LEO may seize property that is clearly visible in plain view w/o a warrant if the police are lawfully positioned and it is immediately apparent that the evidence is incriminating
What are the NC requirements for the plain view doctrine?
- (1) clearly visible
- (2) LEO lawfully positioned
- (3) immediately apparent that evidence is incriminating
- (4) discovery was inadvertent
Who issues a warrant?
neutral and detached magistrate
A warrant must be based on PC that can be satisfied by what kind of testimony or affidavit?
- (1) contains fact/circumstances that are relevant & not out of date
- (2) reasonable person would conclude it to be more probable than not that evidence of named items or persons will be found
How must the warrant describe the place to be searched and the items/persons to be seized?
In NC, a SW is void if not executed w/in how many hours of issuance?
48 - can be executed at any time day or night
In NC, may outbuildings w/in the curtilage of the premises be searched pursuant to SW?
When is a search w/o a warrant valid?
- (1) voluntary consent
- (2) hot pursuit
- (3) PC to believe that car is carrying contraband
- (4) exigent circumstances where reasonably believe evidence may be lost or destroyed
- (5) momentary detention with very limited questioning
- (6) incident to valid arrest
- (7) on premises subject to regulatory licenses at reasonable hour
- (8) permanent checkpoint
- (9) official custody
When is a stop and frisk permitted?
- reasonable belief that criminal activity is afoot
- looking for concealed weapons
What does the search incident to arrest entail?
search of D person and area w/in his immediate control which is usually referred to as wingspan
must be contemporaneous to the arrest and may even precede it
May LEO randomly stop a car to check license and registration?
If a custodial arrest is affected while the D is in a car, what is considered w/in the D immediate control?
entire passenger area, including the glove box and any containers found in such passenger area
true even if suspect no longer in the car at the time
When can LEO inspect a container w/in a car?
PC to believe that container has contraband or evidence even if no PC to search the entire car
What is required for D consent to search to be effective?
voluntary and intelligent decision made w/o coercion
What is the general rule regarding consent to searches by persons having joint control or use of shared premises?
any person having such control/use may consent to a valid search and any evidence obtained may be used against the other occupants
What statements are inadmissible?
coerced or otherwise involuntary confessions for any purpose
Harmless error rule applies rather than automatic reversal
What are the Miranda rights?
- (1) right to remain silent
- (2) anything said can be used against D
- (3) right to attorney
- (4) can't afford attorney then one will be provided
What is the Miranda Rule?
no statements made by D will be admitted into evidence unless, prior to custodial interrogation, the D was given his warnings
What is the test concerning a Miranda waiver?
ToC - competency of D & nature of police conduct
What does the term "custodial" mean?
significant deprivation of freedom of movement and may not leave
What does the term "interrogation" mean?
police know or should reasonably know actions are reasonably likely to elicit an incriminating response
What must happen if D requests an attorney or wishes to remain silent?
all interrogation must stop
If a D has requested an attorney, he may not be furthered question unless what?
- (1) counsel is present
- (2) D voluntarily initiates a discussion beyond a nec inquiry arising out of the incidents of the custodial relationship
Statements obtained from D in violation of Miranda are admissible to do what?
impeach D testimony at trial
When does a D have a right to counsel at a lineup?
after charges are filed but not before
What is the rule in NC regarding the right to counsel under a non-testimonial indentification order?
- D is entitled to counsel
- any statement made by supsect during procedure inadmissible, regardless of waiver/warnings, unless counsel present when statement made
When are out of court identifications inadmissible?
identification was unnecessarily suggestive and likely to product an irreparable mistaken ID
If an OoC ID is excluded b/c suggestive or unreliable, is a subsequent in court ID admissible?
If an OoC ID is excluded b/c of violation of D right to counsel, is a subsequent in court ID admissible?
yes if P can clearly and convincingly show that the subsequent ID stemmed from an independent purging source
A D is entitled to what to determine whether bail should be granted or denied?
What kinds of bail does NC allow?
- (1) release on D written promise
- (2) unsecured appearance bond
- (3) release into custody of designated person/org
- (4) secured bond
- (5) restrictions on travel, association, conduct, or where D may live
What are the exceptions to pre-trial release in NC?
- (1) D in capital cases
- (2) D accused of committing offense while residing at a mental health facility or escaping from the facility
- (3) DV defendants - 48 hour hold
To be voluntary and intelligent a plea must be taken on the record and the judge must personally be certain that the D understands what?
- (1) nature of charges against him
- (2) maximum possible sentence and any mandatory mins
- (3) fact that he has right to not plead guilty
- (4) that by pleading guilty, the right to a jury trial is waived
When does the right to a speedy trial attach?
once D is accused
When does the right to jury trial attach?
in any criminal proceeding where D faces a potential sentence of longer than 6 months
In NC, after a written request for speedy trial to the clerk, how long does the DA have to proceed to trial?
When must unrequested exculpatory evidence be disclosed?
where it creates a reasonable doubt that didn't otherwise exist
What does the P failure to disclose evidence in violation of discovery rules often entitle D to?
When does jeopardy attach in a non-jury trial?
when first W is sworn
When does jeopardy attach in a jury trial?
when jury is impaneled and sworn
May a D be indicted for the same offense if the grand jury originally failed to indict on that offense?
yes b/c jeopardy hasn't attached
When does a crime constitute the same offense for double jeopardy purposes?
one set of facts proves them both
What is the definition of a lesser included offense?
second offense contains all the elements of the first offense plus additional ones then first offense is lesser included offense
When doesn't double jeopardy apply?
- (1) D successfully appeals his conviction and gets retrial
- (2) mistrial has been granted
When can P appeal?
whenever the appeal can be decided w/o subjecting the D to a second trial
In a joint trial where a co-D confession implicates the other D, what does the right to confrontation do?
prohibits the use of such a confession and dictates that D are entitled to separate trials
When must a motion to sever be made in NC?
- pre-trial unless the grounds for it are unknown before trial
- reviewable by court until the close of evidence
A D may waive his right to counsel if he does so how?
knowingly and intelligently
What does the right to counsel ensure the D of?
no imprisonment for any offense unless represented (absent waiver)
When does the 6th A right to counsel attach?
- at all critical stages of the proceedings that affect the D right to a fair trial
- offense specific
It is a violation of 6th to represent more than one D whenever a conflict of interest is shown to exist that what?
jeopardizes the rights of any D or adversely affects the attorney's performance
What is the minimum number of jurors required in non-capital cases?
- 6 as long as the jury functions as a representative cross section of the community
- requires unanimous verdict if only 6
Do state criminal trials that have 12 jurors have to be unanimous?
What are NC requirements for jury trial?
- 12 jurors
- unanimous verdict
- D in superior court can't waive right to jury trial
What does D right to jury entail?
- jury selected from cross-section of the community
- exclusion of juror based on race/gender violates EPC
What is the 6th right to public trial?
- D has right to a public trial in all criminal prosecutions
- members of press and general public have right to be present at all criminal proceedings except the grand jury UNLESS overriding interest necessitates a closed trial
What is the P standard of proof for conviction in criminal trials?
- beyond a reasonable doubt
- applies to every element of the crime charged
What is the D standard of proof for affirmative defenses?