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Criminal Procedure Bar Outline

Law Outlines > Criminal Procedure - Bar Exam Outlines

This is an extract of our Criminal Procedure Bar Outline document, which we sell as part of our Criminal Procedure - Bar Exam Outlines collection written by the top tier of Thomas Jefferson School Of Law students.

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


1. EXCLUSIONARY RULE - Constitutional remedy that gives individuals a right to prevent the government from using evidence in a criminal prosecution that has been unconstitutionally procured from them. a. EXCEPTIONS: i. Grand Jury Proceedings (Except for Federal Wiretapping) ii. Civil cases, Deportation cases, Parole hearings. iii. Violations of State law or Local laws iv. To Impeach a DEFENDANTS OWN testimony (Not a witness of D)

1. May impeach defendant with: (inconsistent with testimony) a. Improperly Mirandized statements b. Pre or Post arrest unMirandized silence c. Unconstitutionally seized evidence (Cocaine in Jacket)

2. May NOT impeach with: a. Coerced Confessions (In violation of Due Process) b. Post Mirandized silence c. Massiah (6th amendment right to counsel) violations i. Impeachment must be reasonably within scope of direct b. GOOD FAITH defense to exclusion: When police rely in good faith on: i. Judicial opinion later changed by another opinion ii. Statute or an ordinance later declared unconstitutional iii. Defective search warrant - (4) exceptions:

1. If the affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer could have relied upon it

2. If the warrant is invalid on its face a. Ex: fails to state particularly the place or things to be seized

3. If the police officer lied to or misled the magistrate

4. If the magistrate has "wholly abandoned his judicial role." a. Ex. Magistrate is also the prosecutor, paid per search warrant or has become a member of the law enforcement team. c. FRUIT OF THE POISONOUS TREE - All evidence obtained from exploitation of the unconstitutionally obtained evidence will also be inadmissible. i. Exceptions

1. Knock and Announce Rule - Exclusion is not an available remedy for a violation of the knock and announce rule in the execution of search warrants.

2. Miranda Violations - No real or physical evidence exclusion obtained as a result of a Miranda violation.

3. Independent source of discovery for that evidence

4. Inevitable discovery by police

5. Intervening acts of freewill of the defendant a. Ex: D is illegally arrested on Fri. Out on bail Sat. On Tues. returns to police and confesses. Will it be excluded? No. 1

6. In court ID - Cannot exclude an in court identification on the grounds that it is the fruit of an unlawful detention. ii. Harmless Error - If illegal evidence is admitted, a resulting conviction should be reversed on appeal unless the gov't can show beyond a reasonable doubt that the error was harmless. (Does NOT apply to the right to counsel at trial) 4TH AMENDMENT

2. ARRESTS (Other Detentions) a. Seizure - A seizure occurs when a reasonable person would believe that she is not free to leave or terminate an encounter with the government. b. Arrest - When the police take a person into custody against their will for the purpose of criminal prosecution or interrogation. i. Arrests in a PUBLIC - Must have probable cause. The officers do NOT need an arrest warrant.

1. Station house detention - need probable cause to bring you to the station for questioning or fingerprinting. ii. Arrests in a HOME - Non-emergency arrest of an individual in his own home, requires an arrest warrant

3. SEARCH & SEIZURE (4 part test) a. State Action - 4th amendment only applies to searches or seizures by the government. i. Police officers are agents for the government on or off duty. (24/7) ii. Any private individual acting at direction of police (ex. roommate) iii. Privately paid security guards are NOT, unless deputized. b. Standing - Must have a reasonable expectation of privacy as to the thing searched or the item seized. i. Automatic categories of standing

1. Owned the premises searched

2. Live on the premises searched, whether you own or not

3. Overnight guest ii. Sometimes categories of standing

1. Legitimately present when the search takes place a. Passenger in car - No standing to object to the search of the car but may have standing to object to a search of their own property. b. Drug Dealer - A drug dealer in a residence just for the purposes of conducting a drug deal does NOT have standing.

2. If you own the property seized at the time it was seized iii. Things held out to the Public - If the items seized were already exposed to the public, then there are no rights of privacy to be invaded.

1. Sound of your voice / Style of handwriting

2. Eavesdropping - Speaking loud in a public place

3. Paint on the outside of your car 2

4. Account records held by a bank

5. Monitoring the location of vehicles (even electronically) in public places a. Can use electronic monitoring devices but cannot use the monitoring devices in homes.

6. Search of Open Fields and buildings in them (exception for curtilage) a. i.e. Even if the field is fenced with no trespassing signs.

7. Observed during flyover in public airspace using unaided vision

8. Odors emanating from your luggage (Sniff test) - NOT x-rays.

9. Your garbage set out on the curb for collection c. Valid Search Warrant -Police must have a valid warrant to conduct a search. i. Probable Cause - Trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.

1. Determined by the "Totality of the Circumstances"

2. Magistrate given enough information to make a "commonsense evaluation" a. Invalid if the officer (1) intentionally or recklessly included false statements in the warrant application, and (2) the statement was material in finding probable cause.

3. Properly Executed a. Timing - Was the warrant stale by the time it was served b. Knock and announce presence and wait a reasonable time. i. Unless it would inhibit investigation or be dangerous

4. Precise on its face - Must state the place and things to be searched.

5. Neutral and Detached magistrate issued the warrant a. i.e. "wholly abandoned his judicial role." - Magistrate is also the prosecutor, paid per search warrant or has become a member of the law enforcement team.

6. Note a. Probable cause may be based on a anonymous tip b. A search of a 3rd party premises is permissible with probable cause. c. May detain all occupants of the premises during a proper search d. May NOT search persons on the premises who were not in the warrant. e. If the search warrant is defective, check the Good Faith Defense of exclusion or an Exception i. Note - The good faith exception only applies if police obtained a warrant and it was defective. If no warrant look to exceptions. d. Valid WARRENTLESS Search i. Search Incident to Lawful Arrest

1. Arrest must be lawful

2. Arrest and search must be contemporaneous in time and place a. i.e. Can't arrest a suspect in the living room, put them in the patrol car, then re-enter and search the living room.

3. Geographic scope - Subjective Wingspan - person and the areas into which could be reached in order to procure a weapon or destroy evidence 3

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