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Criminal Procedure Bar Exam Outline

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This is an extract of our Criminal Procedure Bar Exam document, which we sell as part of our Oklahoma Bar Bundle Outlines collection written by the top tier of Oklahoma City University School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Oklahoma Bar Bundle Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Bar Exam.MBE.Criminal Procedure SEARCH & SEIZURE

* Overview o Fourth Amendment prohibits state actors from engaging in unreasonable search or seizure

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Search or seizure is reasonable only if authorized by WarrantOrWarrant exemption/exceptionsANDExecuted in a reasonable manner*
Evidence obtained pursuant to an unreasonable search or seizure MAY be excluded/suppressed o Thumbnail analysis

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State Action?

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

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Warrant (PC, particularity) or Warrant Exception?

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Execution (reasonable; knock & announce)?

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Suppression?

* State Action o Rule:

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4A only applies to State actors & agents If police ask someone else to do it for them= State ActionPolice on or off duty= state action* Search or Seizure o "Search"

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Invasion of REP=Likely No REP if information*
Exposed to Public

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Transferred to third party who turns over to police

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Into constitutionally protected area to obtain information Protected areas:*
Persons, houses, papers, and effect"

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Examples

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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

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

"Seizure"

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Things

Test:*

*

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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

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Ex. Terry stops, arrests o

"Standing"

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

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Ex.

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Driver challenges stop of car: Yes

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Passenger challenges STOP of car: Yes

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Driver or owner challenges SEARCH of car: Yes

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Passenger challenges car SEARCH: NO

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Driver challenges SEARCH of Passenger Purse: No

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Passenger challenges SEARCH of OWN PURSE: Yes

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Overnight guest challenges SEARCH of GUEST AREA: Yes

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Afternoon guest challenges SEARCH of guest area: NO* Warrant or Warrant Exception o Overview:

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A search or seizure must be authorized by Valid warrantOrA warrant exception*
Warrant Requirements Probable causeParticularityOath or Affirmation, andDetached & Neutral Magistrate*
Warrant Exceptions Plain viewConsentExigent circumstancesAutomobilePublic arrestsSearch incident to lawful arrestInventoryTerrySpecial needs*
Stackability May stack warrant & warrant exceptions on top of each other toexpand authority

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Scope

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

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Requirements Probable Cause (PC)*
Test: Fair probability, reasonable grounds, or reasonable trustworthy info sufficient for prudent person to conclude:

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

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Evidence of criminality is in the place to be searched

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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

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Note:

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Name or addresses are sufficient but not necessary

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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

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Note: not need be judge or lawyer Warrant Exceptions

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

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See the evidence

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AND

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PC item is connected w/ criminality Note:*
Authority may derive from warrant, warrant exception, or public location of vantage point

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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

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Ie.

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

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

o

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*

*

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Consent First-Party Consent*
Voluntary under totality of circumstances

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Factors: police actions & suspect's background

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Note: ignorance of right to refuse not fatal Third-Party Consent*
Voluntariness, AND

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Actual authority to consent based on joint access & control

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Or

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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

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Evidence destruction

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Danger to Public or Police, OR

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Flight of Suspect Note*
Still need PC of criminality

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

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Ex.

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

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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)

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Ex.

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

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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

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Misdemeanors: Public, PC, and Committed in presence of Officer Warrants required for arrests in private unless exceptionapplies (exigent circumstances)

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Arrestee's home: arrest warrant

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Third-Party home: search warrant and an arrest warrant gives PC Search Incident to Lawful Arrest (SILA) Person:*
Contemporaneous search of

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Suspect of person

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Lunge area, and

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Containers therein for weapons or evidence Cars:*
NO search unless

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

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Or

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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 hunchTerry 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

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