MBE - Criminal Procedure Flashcards
What are the 4 global issues of search and seizure?
(1) Whether S&S is governed by 4th Am?
(2) Whether S&S conducted w/ satisfies 4th Am requirements?
(3) Whether S&S conducted w/o warrant satisfies 4th Am?
(4) To what extent evidence obtained through improper S&S is admissible in court?
To determine whether 4Am applies to S&S, we ask 4 questions:
(i) S&S executed by government agent?
(ii) S&S of an area or item protected by 4Am?
(iii) Did agent (a) physically intrudce or (b) violate reasonable expectation of privacy.
(iv) Does D have standing?
Who generally qualifies as an government agent capable of executing a search and seizure under the 4Am?
(i) Publicly paid police officers (on or off duty)
(ii) Private citizens, ONLY IF acting at direction of police
(iii) Private security guards, only if deputized with power to arrest
(iv) public school admins.
What items/areas are specifically protected from search and seizure under fourth amendment?
Persons, Houses, Papers, Effects
True or False: “Houses” under the fourth amendment protection from S&S includes hotel rooms.
True.
The protection of houses also includes “Curtilage” = area of domestic use immediately surrounding the house.
What are the certain categories of items that are sufficiently “public” so that 4Am does not apply to them, even if search or seized by government?
“Patty Achieve A Glorious Victory Over Her Opponents.”
Paint Scrapings Account Records Air Space Garbage Voice Odor Handwriting Open Fields
What do the common sufficiently “public” items that do not fall under 4Am protection, even if seized by govt, have in common?
(Patty Achieved A Glorious Victory Over Her Opponents)
Knowing exposure to third parties.
What are the two ways S&S by government agents can implicate an individuals 4Am rights?
(1) Agent physically intruded on a constitutionally protected area to obtain information OR
(2) Agent’s search violates individual’s reasonable expectation of privacy.
Government agent’s installation of GPS tracking device on vehicle and use of that device to monitor vehicle movements constitutes ____?
PHYSICAL INTRUSION on a constitutionally protect area or item to obtain information – triggers fourth amendment.
To meet the standard of REASONABLE EXPECTATION OF PRIVACY, individual must show?
(1) Actual or subjective expectation of privacy
(2) Privacy expectation was “one that society recognizes as reasonable”
True or false: A police search is presumptively reasonable under the 4th Am when its uses a device that is not in public use to explore details of the home that officers could not have known without physical intrusion?
False. Use of device not in public use is presumptively UNREASONABLE.
What is the key principle regarding an individuals “standing” to challenge the lawfulness of a S&S?
The individual’s personal privacy rights must be invaded, not those of a 3P.
True or False: A person who (a) owns the premises searched, or (b) do not own, but reside in the premises ALWAYS have standing to challenge S&S?
True.
This includes overnight guests as to areas overnight guest can be expected to access.
True or False: An overnight guest has standing to challenge a s&s conduct by gvt agents of closet in host’s bedroom.
False.
Overnight guests have standing to challenge searches of areas they can be expected to access – including living room, dining room, bathroom.
True or False: Individual who is using someone else’s residence merely for business purposes has a reasonable expectation of privacy to confer standing to challenge s&s.
False.
Ex - apartment of acquaintance used only to bag cocaine; 3P doesnt have standing
Does a man who hides drugs in his girlfriends purse have a reasonable expectation of privacy to confer standing to challenge the search/seizure?
NO –> owner’s of property seized only have standing if they have a reasonable expectation of privacy in the AREA from which the property was seized.
True or False: In NY passengers in cars can challenge the possession of weapons, is possession is attributed to them.
True.
If problem provides that government agent has either (physically intruded) or (2) violated an individuals reasonable expectation of privacy – what next?
Fourth Am applies to search and seizure.
Next determine whether search and seizure complies with requirements of 4th amendment.
What are the four key questions regarding whether a warrant satisfies the requirements of the 4th Am?
(1) Issued by neutral and detached magistrate?
(2) Warrant supported by probable cause and particularity?
(3) If not, can warrant be saved by “good faith?”
(4) Was the warrant properly executed?
By what standard does a judicial officer cease to be “neutral and detached?”
When her conduct demonstrates BIAS in favor of the prosecution.
What is required to meet probable cause?
Probable cause requires proof of “a fair probability” that contraband or evidence of crime will be found in area searched.
True or False: Hearsay is admissible to meet the burden of probable cause?
True.
True or False: Police may not rely on information obtained through informant’s tip.
FALSE.
Police MAY rely on informant’s tip, even if the tip is anonymous.
What is required for an informant’s tip to be considered sufficient to be used for the purpose of establishing probable cause?
CORROBORATION by the police of enough of tipster’s information to allow the magistrate to make “common sense practical” determination that probable cause exists based on a TOTALITY OF THE CIRCUMSTANCES.
True or False: NY continues to use the stricter Aguillar-Spinelli test in evaluating probable cause.
True.
What is the Aguillar-Spinelli test for evaluating probable cause?
When apply for search warrant (and to establish PC), government must establish:
(1) The informant’s veracity or reliability, AND
(2) His basis and knowledge.
An examination of (1) an informant’s veracity/reliabilty and (2) basis of knowledge is the ____ test?
Aguillar-Spinelli Test used to evaluate whether probable cause exists to issue a warrant.
USED IN NY!
Under the AS-Test (for probable cause) if an informant has not established his basis of knowledge, is there an alternative available?
YES – PC may be established through police observation that confirms sufficient detail SUGGESTIVE of, or directly related to the criminal activity in question.
What is the distinction between the majority rule and NY rule regarding the establishment of probable cause?
MBE –> need enough information to allow magistrate to make “common sense practical” determination that PC exists.
NY –> requires information concerning informant’s VERACITY and establish BASIS OF KNOWLEDGE.
What is required to satisfy the particular requirement for warrants?
For particularity, a search warrant must specify (a) the place to be searched and (b) the items to be seized
The police have probable cause to believe T murdered his wife E. The DA applies for a warrant to search for the murder weapon (believed to be serrated knife).
The warrant issued authorizes the police to search, “the entire apartment, including all closed containers, for evidence linked to E’s murder.”
Does this warrant satisfy particularity?
NO
This is a “general warrant” that authorizes a fishing expedition in private areas that could not house the evidence for which there was PC to search (knife).
True or False: On the MBE, a warrant that is invalid due to absence of PC or particularity can still be saved if officer relied on it in good faith?
TRUE.
But not in NY, NY doesn’t recognize good faith.
True or False: Under NY law, a warrant lacking probable cause or particularity can be saved under good faith.
FALSE - NY does not recognize good faith.
On MBE, what are 4 exceptions to the “good faith” save of a defective search warrant?
BARF
(1) Biased Magistrate
(2) Application EGREGIOUSLY lacked PC
(3) Reckless falsehoods in affidavit relied upon
(4) Facially deficient in particularity
If a warrant application includes a “bare bones” affidavit that states only that the police have “received information from a confidential informant,” this is an example of what?
Exception to good faith doctrine to save defective warrants on the basis that application was so EGREGIOUSLY LACKING IN PROBABLE CAUSE that no reasonable officer would have relied on it.
If a warrant authorizes a search for “all serial numbers and identification numbers on all property” at an address where PC existed only as to the presence of a stolen vehicle OUTSIDE, this is an example of what?
Exception to good faith doctrine saving defective warrants on the basis that the warrant is so FACIALLY DEFICIENT IN PARTICULARITY that officers could not reasonable presume it to be valid.
What are the two key aspects of proper warrant execution?
(1) Officers complied with terms and limitations (stayed within scope) and
(2) Officers complied with “knock and announce” rule.
What is required under the “knock and announce” rule?
Police must “knock and announce” their presence AND their purpose before forcibly entering into the place to be searched
What are the exceptions to the “knock and announce” rule?
K&A not required if officer REASONABLY believes doing so would be:
(a) Futile
(b) Dangerous, or
(c) Inhibit the investigation.
What are the exceptions to the warrant requirement?
ESCAPIST!
Exigent Circumstances Search Incident to Lawful Arrest Consent Automobile Plain View Inventory Special Needs Terry "Stop and Frisk"
What are three types of exigent circumstances where warrantless search is permissible?
(1) Evanescent Evidence
(2) Hot Pursuit of Fleeing Felon
(3) “Emergency Aid” Exception
What is evanescent evidence?
Evidence that would dissipate or disappear in the time it would take to get a warrant - thus exception to warrant requirement.
Ex. Scraping under fingernails.
What is Hot Pursuit of Fleeing Felon exception to warrant requirement?
Provides that:
(1) Hot pursuit allows police to enter the home of a suspect or 3P to search for fleeing felon
(2) During hot pursuit, any evidence of a crime discovered in plain view while search for the suspect is admissible.
What is the “emergency aid” exception?
Falls under exigent circumstances, allowing warrantless search allowing…
Police may enter residence without warrant when there is an OBJECTIVELY REASONABLE basis for believing that a person inside is in need of emergency aid to address or prevent injury.
What is SITLA?
Search incident to lawful arrest = exception to warrant requirement for searches.
What are the requirements of s SITLA?
(1) Lawful arrest or custody
(2) Contemporaneous to arrest in time & place
(3) Scope of search must be contained to D’s wing-span, including body, clothing, and any containers within arrestee’s immediate control.
What is the scope of a SITLA?
WING SPAN
Includes body, clothing, and any containers within arrestee’s immediate control, REGARDLESS of offense for which arrest was made.
What are the justifications of SITLA?
(1) Officer safety, and
(2) Need to preserve evidence
What is the NY distinction regarding the scope of SITLA?
For LEO to search containers within wingspan, an officer must suspect that the arrestee is ARMED.
After making arrest for driving while intoxicated, an officer searches a cigarette pack in the arrestee’s front shirt and seizes the crack he finds inside. Are the search and seizure lawful?
ON MBE –> Yes, contraband was found in container inside the arrestee’s CLOTHING and thus within his immediate control.
ON NY –> NO, LEO had no reason to believe that arrestee was armed.
On the MBE, what is the rule regarding automobile searches incident to lawful arrest?
Permissible scope –> INTERIOR CABIN, including closed containers, but not the trunk.
True or False: Once an officer has “secured” an arrestee, the officer can search the vehicle ONLY IF she has reason to believe the vehicle may contain evidence related to the crime for which the arrest was made.
True.
True or False: In NY, once occupant is out of the car, police can search containers inside the vehicle to look for weapons of evidence of crime?
FALSE.
Once occupant is out of car, police CANNOT search containers inside the vehicle.
Jill is arrested for driving with a suspended license. Officer Jack tells Jill, who is not handcuffed, to stand in front of the vehicle with her hands on the hood while he searches it. In Jill’s purse on the floor of the car, jack finds marijuana and seizes it.
Are Jack’s actions lawful?
ON MBE – YES, because Jill is unsecured.
IN NY – NO, because Jill is outside the care at the time of the search.
What is the standard regarding a consent to search?
Consent must be voluntary and intelligent. Police officers do not need to tell someone that she has the right to refuse consent.
If the D gives consent, what is the scope of consent?
All areas for which a reasonable person would believe permission to search was granted.
What is “apparent authority?”
Allows police officer to search based on consent given by someone who lacks “actual authority” provided the officer reasonably believed that the consenting party had actual authority.
If officers reasonably believed that a woman had “actual authority” to consent to their entry into her boyfriend’s apartment since she referred to the apartment as “ours,” had a key and claimed to keep personal belongings.
What result?
Apparent authority established based on LEO reasonable belief.
Woman had key and called apartment “ours.”
What is the justification and standard for “automobile” exception to the warrant requirement?
Justification – Autos are searchable without a warrant because vehicles are ready and individuals have a lesser expectation of privacy in vehicles.
Standard –> LEO must have probable cause to believe contraband or evidence will be found in vehicle.
Officer has PC to believe that a car is being used to transport a stolen 27” TV.
Can she search the entire car? What about a backpack in the trunk?
Entire car- yes
Backpack - no bc its too small to house a 27” tv
What are the requirements to seize an item in plain view (exception to the warrant requirement)?
(1) Lawful access to place from which item can be plainly seen
(2) Lawful access to item itself, and
(3) Criminality of item must be immediately apparent.
Where are inventory searches most common?
Search of arrestee - when they are booked into jail OR vehicle - when impounded.
What is the most common example of a” special needs” s&s that is an exception to the warrant requirement?
Random Drug Testing
What are the most common examples where SCOTUS has approved a warrantless, random drug test?
(1) Railroad employees, following an impact accident
(2) Customs agents responsible for drug interdiction, and
(3) Public school children who participate in any extra curricular activity
What is the standard required to justify a warrantless search of the person and effects of a public school student.?
Search must be reasonable at inception and not excessively intrusive in light of the age and sex of student AND nature of infraction.
True or False: Warrantless, suspicionless searches of parolees and his home are not permissible as a condition of parole.
FALSE.
They are permissible under the “special needs” exception to the warrant requirement.
Warrantless strip search of 13 year old female school student suspected of carrying prescription strength advil - permissible?
NO - held to be excessively intrusive in relation to the potential danger to other students.
True of False: Citizens and non-citizens have no 4th Am rights at the border.
True - with respect to ROUTINE searches of persons and effects.
What is a Terry Stop?
Brief detention or “seizure” for purposes of investigating suspicious conduct.
