Criminal Procedure Bar Exam Outline

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...

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