Crim Procedure

Question 1

Area/items protected by 4th amendment

Answer 1

[From the text of the amendment…]

Persons
Houses (+ curtilage)
Papers
Affects

Question 2

Unprotected items (no 4th amdt protection)

Answer 2

[Patty Achieved A Glorious Victory Over Her Opponents]

Paint scrapings on car
Account records in banks
Air space (public airspace)
Garbage
Voice
Odors (emanating from your car/luggage)
Handwriting
Open fields

Question 3

HOW a government agent can search/seize

Answer 3

• PHYSICAL intrusion (US v. Jones)
  (and)
• Offends Δ’s actual/subjective REASONABLE EXPECTATION of privacy and it’s one SOCIETY RECOGNIZES AS REASONABLE. (US v. Katz)

Question 4

Does Δ have STANDING to object to search/seizure?

Answer 4

• Owners of home
• Residents of home;
• Overnight guests (areas they’re expected to access);
• NOT “business” guests (bagging coke in living room);
• Owners of contraband/property if they have an expectation of privacy in the AREA where it was seized (not my girlfriend’s purse);
• NOT mere passengers in searches of cars;

IN MASS., automatic standing for evidence from home/car.

Question 5

WARRANT issued by _____ & ______ magistrate?

Answer 5

“neutral”
&
“detached”

Question 6

WARRANT supported by PROBABLE CAUSE?

Answer 6

• Hearsay is okay
• Anonymous tipster is okay IF based on a TOTALITY OF THE CIRCUMSTANCES, there is enough info to let the magistrate make a common sense, practical PC determination.
  BUT IN MASS: (Aguilar-Spinelli): P must establish tipster’s:
  BASIS OF KNOWLEDGE and RELIABILITY (unless corroborated by police)

Question 7

WARRANT supported by PARTICULARITY?

Answer 7

Place to be searched; and

Items to be seized.

Question 8

Even with a [defective search warrant], evidence is admissible when police act in GOOD FAITH unless–

Answer 8

1) warrant SO LACKING IN PC, no reasonable cop would’ve relied;
2) warrant is SO FACIALLY DEFICIENT in PARTICULARITY (all serial #s on property);
3) AFFIDAVIT relied on contains knowing or reckless FALSEHOODS; or
4) MAGISTRATE who issued is BIASED

IN MASS., evidence is excluded only if constitutional violation was SUBSTANTIAL and PREJUDICIAL

Question 9

Was WARRANT properly EXECUTED?

Answer 9

• Police complied w/ its terms; and

- Police complied w/ knock and announce rule (unless futile, dangerous, or would inhibit investigation)

Question 10

warrantLESS SEARCH/SEIZURES

Answer 10

“ESCAPIST”

E - exigent circumstances
S - search Incident to Arrest 
C - consent
A - automobile exception
P - plain view
I - inventory searches
S - special needs
T - terry stops

Question 11

Warrantless searches: “E”

Answer 11

“Exigent circumstances”

• Evanescent evidence (evidence dissipates/disappears - fingernail scrapings)
• Hot pursuit (enter suspect’s home, 3d party’s home … evidence discovered in plain view t look for person in a backpack)
• Emergency aid (objectively reasonable to prevent injury … cops see fight in a house party)

Question 12

Warrantless searches: “S”

Answer 12

“Search incident to arrest”

• Officer safety and preserve evidence
• Search is CONTEMPORANEOUS to arrest
• Anything in the WINGSPAN of the suspect (body, containers, clothing! … cigarette pack in suspect’s pocket)
• Arrest in a CAR (search INTERIOR CABIN, closed containers … not the trunk)
  IF suspect is SECURED can only search for evidence of the crime arrested
  IF suspect is UNSECURED can search all over

Question 13

Warrantless searches: “C”

Answer 13

“Consent”

• Must be VOLUNTARY and INTELLIGENT
• If officer REASONABLY BELIEVES person has authority to consent, officer can rely on that “apparent authority” to search

Question 14

Warrantless searches: “A”

Answer 14

“Automobile exception”

• Cops need PROBABLE CAUSE that contraband or evidence of the crime is in the car before they can search the ENTIRE VEHICLE for that item (can’t search a backpack in the trunk for a 27” TV)

Question 15

Warrantless searches: “P”

Answer 15

“Plain view”

• Officer needs lawful access to the PLACE you can see the item; the ITEM itself; and the criminality of the item must be READILY APPARENT.
• Rushing into home via hot pursuit of felon, cannot open a backpack in plain view b/c suspect can’t fit in there

Question 16

Warrantless searches: “I”

Answer 16

“Inventory searches”

• Arrestees BOOKED in jail … car is IMPOUNDED
• Inventory searches are constitutional if the REGULATIONS are reasonable in scope; search complies with regs.; and search is in good faith.
• In Mass., if regs don’t mention closed containers, can’t search ‘em

Question 17

Warrantless searches: “S” (second S)

Answer 17

“Special Needs”

railroad employees; 
customs agents; 
school children participating in extra curricular activities
parolee's homes
persons and affects of school kids
border searches
sobriety checkpoints (not for drugs)

IN MASS., no random urine tests unless consent or reasonable suspicion or substantial gov’t need

Question 18

Warrantless searches: “T”

Answer 18

“Terry stop & frisk”

Terry STOP: brief seizure (under totality of circumstances, individual does not feel free to leave or decline to answer cop)
[cop brandishes, tone/demeanor, told right to refuse, in hot pursuit if physical touching or submission, traffic stop-passenger and driver]

Terry FRISK: pat-down search for WEAPONS and contraband w/o physical manipulation
[look in car’s cabin for places weapon is hidden, protective sweeps for confederates]

Need REASONABLE SUSPICION for the stop and the frisk.