Crim Pro

Front 1

Criminal Procedure
Generally:
What are the eight steps for any essay on Fourth Amendment Search and Seizure?

Back 1

1. Is there government conduct?
2. Did the search or seizure invade an individual's reasonable expectation of privacy?
3. Was the search authorized by a facially valid warrant?
4. Does an officer's "good faith" save the defective search warrant?
5. Was the search warrant properly executed by the police?
6. Is the search valid under the 8 exceptions to the warrant requirement?
7. Can prosecutors use the evidence gathered in an unconstitutional search and seizure against D in court?
8. Is any of the evidence introduced by the prosecution "Fruit of the Poisonous Tree," and if so, is the evidence admissible?

Front 2

Fourth Amendment Search and Seizure- Step 1 - Is there govt conduct?
What are the three categories of govt actors?

Back 2

- publicly paid police officer (on or off-duty)
- private citizen, only if acting at direction of police
- privately paid police, but only if deputized w/arrest power (campus police)

Front 3

Fourth Amendment Search & Seizure: Step 2 - Reasonable expectation of privacy (REP)
What are the four areas protected by the Fourth Amendment?

Back 3

1) person (ie body),
house (incl curtilage and hotel rooms),
papers, and
effects (purses, backpack)

Front 4

Fourth Amendment Search & Seizure: Step 2
What are the categories of items that are sufficiently "public" so that they carry NO reasonable expectation of privacy, even if search and seized by govt officials?

Back 4

Pam Achieved A Glorious Victory Over Her Opponents
- Paint scrappings on outside of your car (cops can scrape away)
- Account records held by a bank
- Airspace - anything that can be seen below while flying in public airspace (not private)
- Garbage you leave at the curb for collection
- Voice (sound of voice)
- Odors emitted from luggage or car
- Handwriting (style)
- Open fields - anything that can be seen

Front 5

Fourth Amendment Search & Seizure: Step 2- REP - Standing
1) What is the minimum violation that must occur for an individual to have standing to challenge the lawfulness of a govt search and seizure?
2) When do the following individuals have standing:
a) owners of the premises searched
b) Residents of the premises searched
c) overnight guests in the premises searched
d) Individual using someone else's residence solely for business purposes
e) Owners of the property seized
f) Passengers in cars; NY?

Back 5

1) An individual's PERSONAL privacy rights must be invaded,not those of a third party.
2) a) Always have authority to challenge
b) Always
c) Always as to areas an overnight guest can be expected to access
d) Never have authority to challenge search
e) Only if the owner has a reasonable expectation of privacy in the area from which the property was seized
f) Only if passenger has a R exp. of privacy in the item searched or seized. In NY, passengers can challenge the POSSESSION of weapons if POSSESSION is attributed to them

Front 6

Fourth Amendment Search & Seizure: Step 3- Valid Warrant
What are the two core requirements for a search warrant to be valid?

Back 6

Probable cause and Particularity

Front 7

Fourth Amendment Search & Seizure: Step 3- Valid Warrant: Probable Cause
1) What is the standard for probable cause?
2)Is hearsay admissible for this purpose?
3) Can the police rely on information obtained by an anonymous tip?
4) How does a magistrate determine whether an informant's tip is sufficient to create PC?
5)

Back 7

1) fair probability that contraband or evid of crime will be found in the area searched
2) yes
3) yes
4) The sufficiency of the informant's tip rests on CORROBORATION by the police of enough of the tipster's information to allow the magistrate to make a COMMON SENSE PRACTICAL DETERMINATION that PC exists

Front 8

Fourth Amendment Search & Seizure: Step 3- Valid Warrant: Probable Cause
1) Is the NY standard more or less strict than the CL standard? What is the name of that standard?
2) What is that standard?
3) What can the police point to if they do not know the informer's basis of knowledge?

Back 8

1) NY continues to use the stricter AGUILAR-SPINELLI test
2) the application for the search warrant must demonstrate BOTH the veracity or reliability of source and the basis of informant's knowledge.
3) This requirement may be satisfied if police OBSERVATION confirms sufficient details suggestive of or directly related to the criminal activity in question.

Front 9

4th Amendment: Step 3- Valid Warrant: Particularity
1) What is the standard for particularity of a SW?
2) Can the particularized description be contained in an affidavit supporting the warrant?

Back 9

1) search warrant must specify place to be searched and items to be seized
2) yes, if the affidavit is incorporated explicitly into the warrant itself

Front 10

4th Amendment: Step 4: Good faith exception
1) what is the general good faith rule?
2) what are the three exceptions to the good faith standard?
3) What is the good faith rule in NY?

Back 10

1) An officer's good faith overcomes constitutional defects in PC and particularity (unless falls within exceptions)
2) - warrant application or warrant itself is so egregiously lacking in PC or particularity that no reasonable officer would have relied on it
- officer or DA lied or misled magistrate
- magistrate was biased, meaning she "wholly abandoned neutrality" (judge can't be paid based on issuing warrants)
3) NY does not accept the good faith doctrine

Front 11

4th Amendment: Step 5 Proper Execution
1) What two issues do you focus on in this step?
2) What is the knock and announce rule?

Back 11

1) Did the officers exceed the scope of the warrant? Did the police comply with the Knock and Announce Rule
2) Requires police to K & A their presence AND purpose before FORCIBLY entering the place to be searched, UNLESS, the officer REASONABLY BELIEVES that doing so would be FUTILE or DANGEROUS or would INHIBIT THE INVESTIGATION

Front 12

4th Amendment: Step 6
What are the eight exceptions to the warrant requirement?

Back 12

ESCAPIST
Exigent Circumstances
Search Incident to Arrest
Consent
Automobile
Plain View
Inventory
Special Needs (ie drug testing)
Terry stop & frisk

Front 13

Exceptions to Warrant Requirement: E is for Exigent circumstances
What are the two exigent circumstances making a search warrant unnecessary?

Back 13

Evanescent Evidence - evidence that would disappear or dissipate in the time it would take to get a warrant (e.g. scraping under fingernails, blood evid. where breathalyzer refused)
Hot Pursuit of a Fleeing Felon - allows police to enter a suspect's home or that of a 3RD PARTY into which he has fled to look for him (any evidence of a crime discovered in PLAIN VIEW while searching for the suspect is admissible)

Front 14

Exceptions to Warrant Requirement: S is for Search incident to arrest
1) What are the two justifications for the search incident to arrest exception
2) When can an officer conduct a SIA?
What is the geographic scope of the search? NY?

Back 14

NOTE - the arrest must be LAWFUL
1) concerns of officer safety and need to preserve evidence
2) searches must be contemporaneous in time and place with the arrest
3) anything within the wingspan - includes body, clothing, containers or effects. In NY, to search CONTAINERS w/in the wingspan, police must suspect the arrestee is ARMED

Front 15

Exceptions to Warrant Requirement: S is for Search incident to arrest
1) what is the scope of automobile search incident to arrest?
2) Can the police search an automobile after the arrestee has been handcuffed and placed in the squad car? NY?

Back 15

1) the interior cabin of the vehicle, including closed containers, but excluding the trunk
2) MBE - Gant: Ok, provided there was reason to believe vehicle may contain evidence relating to offense for which arrest was made. Searches of vehicles of unsecured arrestees are permissible since such individuals may gain access to weapons or evidence.
In NY, once occupant is out of the car, police cannot search closed containers or bags in the car w/o warrant (more restrictive)

Front 16

Exceptions to Warrant Requirement: C is for Consent
1) What are the two requirements for the consent to be valid?
2) Do the police have to tell D that he has the right to refuse consent for the consent to be valid?
3) What if the police officer obtains consent to search from someone who lacks authority to grant it?
4) If the premises are shared, who has the authority to consent to a search of the premises?
5) If co-tenants with equal rights to use or occupy the premises disagree regarding consent to search, who prevails?

Back 16

1) Consent must be voluntary and intelligent
2) No. Not invalid.
3) Apparent Authority - The consent is still valid if the officer REASONABLY believed that the consenting party had actual authority
4) either party (roommates)
5) Objecting party prevails as to areas over which they share dominion and control