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CrimPro Exam 08

Crimpro Exam 08

by ialsubhi9, Mar. 2012

Subjects: crim pro

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56 Cards in this Set

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Issues for Guy with Child Pornography at the airpot:	Issue 1: is the search of the laptop subject to the border search exception to the warrant requirement? (1pt) Issue 2: Is this search at the border so intrusive that reasonable suspicion (or some level of individualized suspicion) is required? (1pt) Issue 3: Assuming reasonable suspicion is necessary, is it present here?
Overview for Issue 1: is the search of the laptop subject to the border search exception to the warrant requirement?	Searches of int'l passengers and the 4th amd. Border & "reasonable" Ramsey Individualized suspicion, warrant, & border searches High gov't interest "reasonable" based on outside entry. Border searches & exigent circumstances. Disassembly of gas tank = Flores- Montano
Searches of inter nation passengers at American airpots are considered border searches under...	the Fourth Amendment because they occur at the FUNCTIONAL EQUIVALENT OF A BORDER.	The Court has deemed routine border searches as constitutional under the Fourth Amendment WITHOUT A WARRANT OR any individualized suspicion.
The Court has concluded that the United States has a high government interest in...	protecting its territorial integrity. The Court concluded that a routine border search is "reasonable" based upon the single fact that the person or...	item in question has entered into our country from the outside.
The border search exception is NOT based on...	any exigent circumstances. The Court has even determined this exception applicable to the disassembly...	of a gas tank (that took over an hour) wherein illegal drugs were discovered. Flores-Montano
D's argument in support of motion to suppress (5 points) OVERVIEW	4th personal/private info @ border Search intrusive Storage device extension of mind Search of folder too far Not like gas tank--no gov't intrusion into mind. Beyond "routine" border. Higher Standard like Reasonable Suspicion
D: The Fourth Amendment should protect...	this type of personal and private information at the borders.
D: While not physically intrusive,..	the search of one's private information STORED on a hard drive (or other electronic storage devices) can be...	just as intrusive, and possibly more intrusive, than a search of one's person.
D: These electronic storage devices function...	as an extension of our own mind - making the search of them for any reason at all...	quite unreasonable!
D: While turning on the computer might have been, arguendo, reasonable, the search of...	the folders simply goes too far. This is wholly unlike the disassembly and search of a gas tank -- because...	a government intrusion into the mind was involved there.
D: Because this search is so PERSONALLY INTRUSIVE, it goes beyond...	the "routine" border. The search must be held to...	a higher standard like reasonable suspicion.
Prosecutor's OVERVIEW	closed containers & contents @ borders w/o PARTICULARIZED SUSPICION border search exception protection interest Different from domestic interest establish right to enter or bring into country Search of Mail--Ramsey. Search at random no matter of desire to conceal Computer folders same as luggage	In sum, this laptop search is a routine border search not requiring any suspicion.
P: The court has long held that searches of closed containers and their contents can be conducted at the border...	without any particularized suspicion under the Fourth Amendment. The authority of the United States to search the baggage of arriving international travelers under the border search exception is based...	on the extremely important interest in protecting our country's TERRITORIAL integrity.
P: The basis for allowing this type of search is wholly different from...	Purely Domestic searches. As such, it should not be held to the same standard as Domestic searches.
P: By reason of this authority, border official are entitled to require...	that whoever seeks ENTRY must establish the right to enter or bring into the country whatever he may carry. The Court APPROVED this border search exception when...	the search of mail was involved.--Ramsey
Luggage (including a laptop) carried by a traveler entering the country may be search at...	random by customs officers no matter how great the traveler's desire to conceal the contents. Computer folders are...	no different than any piece of luggage that might contain personal items. In sum, this laptop is a routine BORDER search NOT REQUIRING any suspicion.
Issue 2 OVERVIEW: Is this search at the border so intrusive that reasonable suspicion (or some lever of individualized suspicion) is required?	Limits of border search power "alimentary canal" "to verify or dispel the suspicion" Montoya de Hernandez Undecided suspicion for body or strip. Kasimar = "real suspicion" for body "that some searches of property So destructive as to require" particularized suspicion. High intrusiveness--Flores Montano
D's argument in support for motion to suppress: Reasonable suspicion is required to search his laptop at the border because it is distinguishable from...	other containers of documents based on its ability to store greater amounts of highly personal information and its Unique role in modern life. Laptop computers are fundamentally different from traditional closed containers, and are more analogous to...	homes and the human mind.
A laptop is like a home due to a laptop's capacity for the storage of...	personal documents in an amount equivalent to that stored in one's home. As such, it is worthy of greater protection.
A laptop is like the human mind because of its ability to...	record ideas, e-mail, internet chat, and web-surfing habits. As such,...	it is worthy of greater protection.
D: This type of search - if allowed without requiring...	individualized suspicion - is subject to much abuse. It will result in...	"fishing expeditions" that threaten to completely disable the Fourth Amendment's Protection against unreasonable searches and seizures.
D: because this search is just as extensive as a	Strip search, reasonable suspicion (or more) should be required.
Prosecutor's response OVERVIEW:	RS not required under 4th border No Destruction of property No Offence! 30mins not an hour. Search Laptop no diff. than luggage. Can't live in a Laptop As such, reasonable suspicion should not be required
P: Reasonable suspicion is not required under the Fourth Amendment because...	of the border-search exception.
While the Supreme Court left open the possibility of requiring...	reasonable suspicion for certain Border searches of...	property, it had based that opening on a search that results in DESTRUCTION of property. No property was destroyed here.
P: there was nothing about this search that was more offensive than other...	lawful border searches. The thirty minutes here...	did not exceed the amount of time it took to disassemble and search the gas tank--Flores Montano
P: The search of a laptop and its electronic contents is logically no different from...	suspicionless border searches of traveler's luggage (that contain personal items) that the court has allowed.
P: D's analogy to a home is completely unwarranted...	because one can't live in a laptop! As such, reasonable suspicion should not be required to search the laptop
3rd Issue Overview: Assuming Reasonable suspicion is necessary, is it present here?	definition Totality of Circumstances Common sense probabilities Illinois v. Wardlow--not high standard reasonable suspicion
D's argument (2 points) Government conducted search without reasonable suspicion. Up until the time that the folder entitled "Great Pics" was opened and...	the naked women photos were viewed, the evidence - even under the Totality of Circumstance - is indicative of no suspicion of any wrongdoing.
D: D was merely a casual traveler carrying a laptop (like so many other people do). Because the officers had no reasonable suspicion at the time ...	the laptop was booted up, the evidence should be suppressed.
P's argument (2 points) Assuming the court wanted to consider imposing a reasonable suspicion requirement, it need not do so here. Court should simply recognize that, based upon the facts,..	reasonable suspicion is present and that any broader legal conclusion...	applicable to future cases in not needed.
P: Reasonable suspicion is present in this case and should only be required...	if at all, after preliminarily viewing some of the laptop
P: The moment that the officer opened the "Great Pics" file and clicked on....	the first photo depicting two nude younger women, the officer ...	had reasonable suspicion of child pornography.
Essay Two about Double Jeopardy	5th Amendment violation?
The 5th Amendment to the United States Constitution protects a defendant from...	being placed twice in jeopardy, or...	subject to the same punishment, for the same crime.
For Double Jeopardy purposes, a person is not...	"in jeopardy" of life or limb until the jury is empanelled and sworn or, in a bench trial...	until the first witness is sworn in.
The occurrence of this even only means that...	Double Jeopardy right has attached -- more is needed to...	determine if a DJ violation has occurred.
The validity of Multiple punishments under the Fifth Amendment is determined under...	the Blockburger "same elements" test. This test is used to determine if a subsequent offense is...	the "same offense" as that for which a Def. has DJ protection.
The test: "[W]here the same act or transaction constitutes a...	violation of two district statutory provisions, the test to be applied to determine whether...	there are two offenses or only one, is whether each provision requires...
"there are two offenses or only one, is whether each provision...	requires proof of a fact the other does not." In other words, multiple offenses may be successively prosecuted if...	each offense has an element that the other does not.
If the Blockburger is not satisfied, and the successive prosecutions have been pursued by...	an individual sovereign, the DJ clause...	has been violated and the subsequent charge must be dismissed.
The court will deny the D's motion if the charges involve are...	not the "same offense" under the Blockburger test.
Here, the carjacking statute has no...	requirement that a weapon be used: "A person who in the course of committing a larceny of a motor vehicle uses force or violence or the threat of force or violence, or who puts in fear any operator, passenger, or person in lawful possession of the motor vehicle, or any person lawfully attempting to recover the motor vehicle, is guilty of the felony of carjacking." As highlighted in italics, only force or violence, or the threat of the same, is required --...	there is no requirement that a weapon be used.
In contrast, as highlighted in italics, the assault with the intent to steal while armed statute does...	have as a requirement the use of a weapon: "any person, being armed with a dangerous weapon, or any article used of fashioned in a manner to lead a person so assaulted reasonably to believe it to be a dangerous weapon, who shall assault another with intent to steal shall be guilty of a felony." Also, the assault with the intent to steal while armed statute does not require the larceny of a mot...	motor vehicle, as does the carjacking statute.
While there may indeed be substantial overlap between the...	proofs offered by the prosecution to establish the crimes, the prosecution must nevertheless...	prove different elements under these statutory provisions.
When a defendant is acquitted, the Double Jeopardy clause generally pro...	prohibits REprosecution for the same offense. It makes no difference here, however, that the Def. was acquitted of the carjacking statute, because...	the D is not being subsequently prosecuted for the "same offense."
For all the above reasons, the carjacking statute and...	assault with the intent to steal while armed statute are...	different offenses, even if the D committed the offenses in the same criminal transaction. Accordingly, D's prosecution for the assault with intent to steal while armed charge did not violate D's double jeopardy rights.
Part B on the victim being a federal employee working on a gov't car and the US attorney's office pursues indictment for assaulting a fed. emp. with a deadly weapon	How will the federal court's ruling differ from that of the state court ruling in Part A? (7 points)
Blockburger test for determining whether two offenses are the "same offense" or different offenses...	is only applicable when looking at actions of INDIVIDUAL SOVEREIGN. If the actions stem from different sovereigns...	the Blockburger test does not apply.
While a municipality and a state are considered...	the same sovereign, two separate states, and a state authority in contrast to a federal authority, are...	considered separate sovereigns.
With the separate sovereigns,...	the DUAL sovereign doctrine applies. "THE DUAL SOVEREIGN DOCTRINE, as originally articulated and consistently applied by this Court, COMPELS THE CONCLUSION THAT...	SUCCESSIVE PROSECUTIONS BY TWO STATES FOR THE SAME CONDUCT ARE NOT BARRED BY THE DOUBLE JEOPARDY CLAUSE" Heath
Heath involved two separate states but the doctrine is equally applicable...	to successive prosecutions by state and federal authorities. "When a defendant in a single act violates the 'peace and dignity' of two sovereigns by breaking...	the laws of each, he has committed two district offenses." Heath
The federal judge will...	deny the motion to dismiss the federal charge for assaulting a federal employee with a deadly weapon. The ruling will differ legally & analytically from state court ruling in Part A because...	it will be based on a dual sovereignty doctrine & Not on Blockburger test.
The general rule when a D is acquitted is that the DJ clause prohibits reprosecution for the same offense. It makes no difference here, however, that D was...	acquited on the carjacking statute, because the D is not being subsequently prosecuted for the "same offense." Federal charge is different offense since...	it was brought by a different sovereign. State and federal authorities are clearly different sovereigns for purposes of dual sovereignty doctrine
Court has made clear that if D in a "single act"...	violates the peace and dignity of two sovereigns by breaking the...	laws of each, he has committed "two distinct offenses." As such, D's Double Jeopardy rights are not violated by the subsequent federal prosecution.