Criminal Procedure Bar Exam - Bar Exam Outlines

Bar Exam.MBE.Criminal Procedure

SEARCH & SEIZURE

• Overview

  • Fourth Amendment prohibits state actors from engaging in unreasonable search or seizure

    • Search or seizure is reasonable only if authorized by

      • Warrant

      • Or

      • Warrant exemption/exceptions

      • AND

      • Executed in a reasonable manner

    • Evidence obtained pursuant to an unreasonable search or seizure MAY be excluded/suppressed

  • Thumbnail analysis

    • State Action?

    • Search (REP; physical intrusion) or Seizure (possessory interest; free to leave)?

    • Warrant (PC, particularity) or Warrant Exception?

    • Execution (reasonable; knock & announce)?

    • Suppression?

• State Action

  • Rule:

    • 4A only applies to State actors & agents

      • If police ask someone else to do it for them= State Action

      • Police on or off duty= state action

• Search or Seizure

  • "Search"

    • Invasion of

      • REP=

      • Likely No REP if information

        • Exposed to Public

        • Transferred to third party who turns over to police

    • Into constitutionally protected area to obtain information

      • Protected areas:

        • Persons, houses, papers, and effect"

          • Examples

            • No REP: trash bags at curb, public location of car by visual surveillance, email to friend turned over by friend, financial records turned over to banker, pot in fenced yard seen from plane, drug dog sniff

            • Yes REP: email to friend that’s wiretapped, public location of car attached by gps, trash bags in fenced backyard curtilage

  • "Seizure"

    • Things

      • Test:

        • meaningful interference w/ a possessory interest

          • Ex. Detention, dispossession, destruction

    • Persons

      • Test:

        • exercise of authority which restrains freedom of movement, under which a reasonable person would not feel free to leave

          • Ex. Terry stops, arrests

  • "Standing"

    • Test:

      • Search or seizure may be challenged only by the person who was searched or seized

        • Ex.

          • Driver challenges stop of car: Yes

          • Passenger challenges STOP of car: Yes

          • Driver or owner challenges SEARCH of car: Yes

          • Passenger challenges car SEARCH: NO

          • Driver challenges SEARCH of Passenger Purse: No

          • Passenger challenges SEARCH of OWN PURSE: Yes

          • Overnight guest challenges SEARCH of GUEST AREA: Yes

          • Afternoon guest challenges SEARCH of guest area: NO

• Warrant or Warrant Exception

  • Overview:

    • A search or seizure must be authorized by

      • Valid warrant

      • Or

      • A warrant exception

    • Warrant Requirements

      • Probable cause

      • Particularity

      • Oath or Affirmation, and

      • Detached & Neutral Magistrate

    • Warrant Exceptions

      • Plain view

      • Consent

      • Exigent circumstances

      • Automobile

      • Public arrests

      • Search incident to lawful arrest

      • Inventory

      • Terry

      • Special needs

    • Stackability

      • May stack warrant & warrant exceptions on top of each other to expand authority

    • Scope

      • May not exceed the scope of authority under warrant or warrant exceptions

  • Warrant

    • Requirements

      • Probable Cause (PC)

        • Test: Fair probability, reasonable grounds, or reasonable trustworthy info sufficient for prudent person to conclude:

          • Crime has been or is being committed by the person to be seized, or

          • Evidence of criminality is in the place to be searched

        • Note: Hearsay and anonymous tips MAY support (though not necessarily establish) PC

      • Particularity

        • Test: sufficiently definite for police to identify persons, places, or items to be searched or seized w/ reasonable certainty

        • Note:

          • Name or addresses are sufficient but not necessary

          • Particularity must be ON THE FACE of warrant or through an INCORPORATED affidavit

      • Oath or Affirmation

        • Test: Police must give information supporting warrant UNDER OATH

      • Detached and Neutral Magistrate

        • Test: NO STAKE in outcome, not be a RUBBER STAMP

        • Note: not need be judge or lawyer

  • Warrant Exceptions

    • Plain View

      • Test: Police may search or seize an item they see in "plain view" IF

        • See the evidence

        • AND

        • PC item is connected w/ criminality

      • Note:

        • Authority may derive from warrant, warrant exception, or public location of vantage point

        • Plaint Feel: police may also search or seize an item they feel during an authorized search of person (Terry Frisk) IF feel gives rise to PC

      • Tip:

        • What they see in "plain view" must be located somewhere where what they have authority to search for could be found

          • Ie.

            • search warrant for tv, cant use to find "drugs" in drawer cause Tv cant fit in drawer

            • Search warrant for tv, can use if find "drugs" in closet cause tv can fit in closet

    • Consent

      • First-Party Consent

        • Voluntary under totality of circumstances

          • Factors: police actions & suspect's background

          • Note: ignorance of right to refuse not fatal

      • Third-Party Consent

        • Voluntariness, AND

          • Actual authority to consent based on joint access & control

          • Or

          • Police have Reasonable belief in apparent authority to consent

      • Objecting Co-Occupants:

        • Police may NOT search home over PRESENT objection of co-occupant

    • Exigent Circumstances

      • Test

        • Reasonable basis for police to believe delay in obtaining warrant would result in

          • Evidence destruction

          • Danger to Public or Police, OR

          • Flight of Suspect

      • Note

        • Still need PC of criminality

        • Lesser the crime (misdemeanor) and the greater the intrusion (home), less likley for courts to find exigency

          • Ex.

            • Police pursue into home suspect whom they have PC committed felony: VALID

            • Police search home for suspect of fine-only traffic offense: INVALID

    • Automobile

      • Test

        • Probable cause that any area of car to be searched (including containers) harbors evidence of criminality)

          • Ex.

            • Police search trunk based on PC car contains stolen TV: Valid

            • Police search glove box based on PC car contains stolen TV: Invalid

    • Public Arrests

      • No Warrants required for arrests in public

        • Felonies: in Public and PC

        • Misdemeanors: Public, PC, and Committed in presence of Officer

      • Warrants required for arrests in private unless exception applies (exigent circumstances)

        • Arrestee's home: arrest warrant

        • Third-Party home: search warrant and an arrest warrant gives PC

    • Search Incident to Lawful Arrest (SILA)

      • Person:

        • Contemporaneous search of

          • Suspect of person

          • Lunge area, and

          • Containers therein for weapons or evidence

      • Cars:

        • NO search unless

          • Reasonable belief that arrested occupants or recent occupant may access car (not secured in squad car)

          • Or

          • Reasonable belief car contains evidence of crime of arrest (not speeding)

• Homes:

  • During time it takes to complete arrest, may conduct visual sweep (cursory visual inspection) for accomplices in

    • Adjoining rooms automatically, and

    • Other rooms if reasonable suspicion of danger

• Inventory

  • Test

    • Within scope of reasonable and routine practice to protect valuables, police, and public, police may inventory contents or

      • Possessions of arrestee at booking after lawful arrest, AND

      • May search auto after lawful impoundment

• Terry

  • Terry Stop

    • Required:

      • Reasonable suspicion that suspect is engaged in criminal activity

    • Allowed:

      • Brief detention & questioning to confirm or dispel suspicion

    • Reasonable Suspicion (RS)

      • must be based on specific articulable facts

    • RS is less than PC, but more than hunch

• Terry Frisk

  • Required:

    • Lawful Terry Stop plus RS that suspect is armed & dangerous

  • Allowed:

    • "Patdown" of the outer clothing and lunge area for weapons

  • May not frisk for evidence (ie drugs)

  • May manipulate Ambiguous object to determine if weapon

  • May reach in and seize object if frisk confirms suspicion of WEAPON or gives rise to PC of CONTRABAND

• Special Needs

  • Balancing Test:

    • If primary purpose is NOT related to crime investigation, may search or seize if government interest outweighs privacy intrusion

  • Common Purpose

    • Public health & safety

  • Tip

    • More random/regulated and dispersed the program, the more likely its reasonable

      • Ex

        • Drug testing student athlete suspected of illegal use: Not Valid

          • Get a warrant

        • Random drug testing of students in extracurriculars: Valid

        • Drug & alcohol tests of railroad workers post accident: Valid

        • Traffic Checkpoints to protect from drunk drivers: Valid

        • Traffic checkpoints to catch drug traffickers: INVALID

        • Customs checkpoint to stop importation of contraband: Valid

          • But at border or close to

• Execution

  • Test:

    • Search or seizure must be executed REASONABLY

      • Before:

        • Must KNOCK & ANNOUNCE presence and purpose before entering premises ((under warrant or exception) UNLESS

          • Reasonable ground to believe

            • Dangerous (shotgun)

            • Futile (music to loud), OR

            • Destruction of Evidence

      • During:

        • May take REASONABLE STEPS to secure premises during authorized search or seizure, including

          • Temporarily detaining individual at scene,

          • Ordering occupants out of car
            

• Suppression

  • Exclusionary Rule

    • Evidence obtained as a result of unconstitutional conduct is inadmissible against individual whose rights were violated as the FRUIT OF THE POISONOUS TREE

  • Exceptions:

    • Procedural

      • Impeachment (cross-exam)

      • Grand Jury Proceeding

      • Parole Revocation Proceedings/hearings

      • Civil Proceedings

• Doctrinal

  • Knock & Announce violation

    • EXCEPT IN OK, still suppressed

  • Reasonable & Good faith reliance on facially valid warrant (later found lacking...