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151 Cards in this Set

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What are the 4 common law categories of criminal actors?
1) Principal 1st degree - P1D
2) Aidor or abbetor - P2D
3) Accessory before the fact - ABF
4) Accessory after the fact - AAF
What is an aidor/abettor (P2D)?
- Is present at the time of the crime

- intentionally renders some assistance,

- stands by w/ an intent to render aid if needed, or

- who encourages or urges the commission of the crime w/ the same 'community of purpose' as the principal in the 1st degree (the same CRIM K mental element).

- An accomplice must assist even in a trivial way the principal in the 1st degree; e.g., preventing others from aiding the victim, driving the P1D to the crime scene or acting as a lookout.
What is required to convict an aidor or abettor?
the court requires proof that the aidor or abettor of the intended crime shared the guilty purpose w/ the P1D and actually rendered some assistance, i.e., she did something w/ the purpose of promoting, facilitating, or encouraging that crime. This is also referred to as the 'acting in concert theory.'
What is the ABF?
is the criminal who is not present when the crime takes place but who intentionally solicits, assists, encourages, acts, or commands another engaged in a crime. He has the same mens rea as the principal except he is not present at the time of the crime.
In NY may an ABF be convicted solely upon the uncorroborated testimony of another accomplice?
In NY, accomplice testimony is viewed w/ suspicion especially where circumstances suggest that the acc. D's test. was motivated to gain favor w/ the prosecutor.
Thus, a NY D may not be convicted solely on the uncorroborated testimony of an accomplice.
Moreover, one accomplice may not corroborate a 2nd accomplice's testimony to convict a 3rd accomplice.
(Under FRE, it is possible to convict solely upon uncorr. test. of another ABF.)
What's an AAF?
one who w/ knowledge of another's guilt, intentially assists felon in avoidng arrest, trial or conviction.

It occurs when D renders assistance to one he knows has committed a crime and D acts w/ specific intent to prevent, impede, or delay the discovery of evidence for the criminal.

not responsible to the extent of the P1D.
Can an AAF be convicted of a crime more serious than P1D?
An AAF can't be convicted of a crime more serious than the crime of which the P1D was convicted except for the crimes of homicide, where the AAF can be convicted of intentional murder, even though the p1d is convicted only of voluntary manslaughter (Heat Of Passion)
Generally, what is attempt?
MBE loves it. To try to commit a crime w/o success.
When is a NY D guilty of attempt?
Not until she is 'dangerously near' or 'on the verge' of accomplishing the intended crime.
Mere discussion of the crime, preparation, or some overt act that would be sufficient for conspiracy is not enough in NY for the crime of attempt.
How does the federal/majority standard broadly define the crime of attempt
In terms of the 'taking a substantial step' toward the completion of the crime. It shifts the emphasis from what little remains to be done (NY approach) to what steps the D has already taken.
Distinction between NY and MBE ex: H barks for dinner and drinks until passing out. One night W goes and gets poison and determines that she will kill him. Tonight, though he turns a new leaf. She doesn't give him the bottle.
Can D attempt to commit a crime by negligent or reckless conduct?
No. The crime of attempt requires intentional conduct and one can't be convicted of the crime of attempting to bring about an unintended result.
Thus there can be no crime of attempted felony murder, attempted manslaughter, or attempted reckless conduct crimes.
When is factual impossibility not a D to the crime of attempt?
Where D intends to commit a criminal act but the crime can't be accomplished unknown to D, then D is nevertheless guilty of an attempt to commit that crime if the crime could have been committed had the circumstances been as D believed them to be and what D intended was prohibited by the penal law; e.g., picking an empty pocket is attempted larceny.
What was the CL rule on burglary?
CL Burglary required:
1 an unauthorized act
2 of breaking
3 and entering
4 at night
5 into another's dwelling
6 w/ a specific intent
7 to commit a felony therein (underlying crime).
What's a breaking?
1. A breaking (which NY doesn't require) is exerting force to remove a barrier in order to enter the dwelling; e.g., breaking a window or opening an unlocked door or window. If the entry occurred during the day the intruder was charged w/ criminal trespass plus the felony intended w/in the dwelling.
What's an entering?
An entering occurs where any part of the D's body crosses the plane and enters the premises; e.g., to reach in a window and steal a diamond ring.
Must an entry in burglary always occur w/o consent?
For burglary the entry must occur w/o consent, but if consent to enter is obtained by fraud or intimidation, it constitutes a constructive breaking and entering. An intruder intending criminal conduct who breaks the barrier w/ a lie or deception, is no less dangerous to the inhabitants of the dwelling.
As a crime against habitation, for what else can a burglary D be charged?
D can be charged w/ both burglary and the crime attempted or committed w/in dwelling.
How far does the modern definition of burglary extend?
today most juris, including NY, expand burglary to any crime, e.g., felony or misdemeanor, and in any structure, night or day. NY goes so far as to define a structure as an enclosed motor truck, watercraft, or trailer, used for overnight lodging, or to carry on a business therein. However, a burglary involving a dwelling will constitute a higher degree of burglary and thus carry a stronger sentence.
What is a conspiracy?
A consp is an agreement with an intent that an unlawful objective be achieved. It is an offer, an acceptance to enter into a K to violate a penal law.
What if the offer to go into a conspiracy is not accepted?
If offer is not accepted, the crime is criminal solicitation, but the crime of crim sol merges into consp if the offer is accepted.
How does the CL differ from modern view of what act is required to show a conspiracy?
At common law, no additional overt act was required but today most federal and state statutes require some overt act in furtherance of the crime, i.e., at least one of the co-conspirators must take a step to accomplish the illegal goal. If a particular statute doesn't expressly require an overt act, then none is required.
To what extent is a co-consp liable for crimes committed by other co-consp's?
A co-consp is liable for all foreseeable crimes committed by other co-consp's in furtherance of the conspiracy.
Does the crime of conspiracy merge with the crime agreed upon?
The crime of conspiracy will not merge w/ the actual crime committed. Possible to be convicted of both the consp. and if you have the same mens rea, the crime. The underlying crime as well as the attempted underlying crime (if you get caught before completion).
Can a D be acquitted of the underlying crime but be convicted of the conspiracy to commit the crime?
Even if Ds are found not guilty of the completed crime, they may nevertheless be found guilty of conspiracy.
Do co-consp's have to know each other?
A person is guilty of conspiracy when he knows that a person with whom he has conspired has also conspired w/ a 3rd person to commit the same ongoing crime.
Will providing goods or services knowing that they will be used for illegal purposes give rise to conspiracy?
No, unless the provider did so w/ the intent that the crime occur. However, this intent may be inferred if D has a stake in the outcome such as when he charges grossly inflated prices or his business greatly profits from the crime.
How do CL conspiracy and modern conspiracy differ where one party is either pretending to agree or is unable to due to infancy, insanity, or duress?
CL - No CL conspiracy if one party was pretending to agree or could not due to I I D. Also, where one of 2 co-consp's was acquitted, no consp.
Majority (inc NY + MPC) - D can be convicted under doctrine of 'unilateral conspiracy' even though D's other K-ing party lacked intent or capacity to form intent.
What's the Wharton rule?
Where a crime requires 2 people to cooperate for its commission (incest, adultery, bigamy, receiving/selling drugs, handguns, stolen goods) there cannot be a conspiracy unless an additional person is involved who is not essential to the commission of the crime. Thus if 3 people agree to commit such a crime then all 3 may be charged w/ conspiracy.
When can an ABF be convicted as a consp?
ABF is also a conspirator but only if the 2 Ds have entered into an agreement. If he quietly assists the D at the crime scene, then in the absence of an agreement, D is an acc. w/o being a co-conspirator.
Can an AAF be convicted as a co-consp or an ABF?
AAF can't be convicted either as ABF or co-consp because his intent and criminal act occurred after the crime had been completed or attempted.
What are the Criminal Ds? (17)
2) VAGUE criminal statute
3) Bill of ATTAINDER
5) EX POST FACTO criminal law
7) INOPERABLE or unloaded gun (for burglary or robbery in NY)
8) CLAIM of Title or CLAIM of right
9) EXCESSIVELY broad penal statute
10) Accomplices WITHDRAWAL from crime (aka D of renunciation)
13) Heat of PASSION
14) Legal or Factual MISTAKE
What is an affirmative D?
Defendant has burden of proof to establish an affirmative defense by a preponderance of the evidence, but only after the People have proven every element of the crime beyond a reasonable doubt.
Affirmative Ds
Justification (MBE only),
What is an ordinary D?
Prosecution has burden of disproving an ordinary defense beyond a reasonable doubt. A D only has the burden of production to establish with some evidence fairly and timely raising the ordinary defense issue, but does not have the burden of proof (persuasion) with respect to his ordinary defense.
Ordinary Ds:
Claim of Right
Justification (NY only)
When is the Justification D (Self defense D in mnemonic)asserted?
When D charged with crime of violence (criminal battery, assault or homicide).
Violent acts, otherwise criminal, may be justified if carried out:
- In defense of person (self-defense) or property,
- In making arrest/preventing escape,
- In preventing a crime, under public authority, or in suppressing a riot.
How is the Justification D pleaded differently in NY/MBE?
MBE - an affirmative D.
NY - ordinary D.
When is the Claim of Right COR D properly raised?
The COR D is properly raised when D in good faith honestly (even mistakenly) believed that property he was accused of taking was his own. If the jury believes mistaken, good D.
In NY, public policy limits COR only to larceny and embezzlement.
When does the Entrapment D arise and what are its elements?
where a law enforcement official or someone cooperating undercover w/ police unfairly (due process) induces or entices the D into committing the crime that D otherwise wouldn't have committed.
Entrapment has 2 elements:
D has burden of proving by a prepond of the evidence, that the gov'ts conduct of inducing and encouraging D to act criminally,

[which is an objective standard involving persistent persuasion by the gov't that created a substantial risk that a crime would be committed by a person not otherwise inclined to commit that crime]; and

the pros has the burden of proving beyond a reasonable doubt that D was predisposed to commit that crime when 1st contacted by the gov't which is a subjective standard based on the D's state of mind just before he was contacted.

NB - Courts have shifted emphasis away from 1st element by holding that if D's pre-disposition to commit the crime is present, gov't inducement will not be considered entrapment unless gov't conduct = 'outrageous.'
What is the Duress D
Duress D Duress arises when a D is forced to commit a crime by the imminent of death or serious bodily injury to the D or a 3rd person.

The D asserting duress must show
He didn't intentionally or recklessly place himself in a situation in which it was probable that he would be forced to choose criminal conduct, and
D had no reasonable opportunity to refuse to perform the criminal act.
What is the insanity D?
A D is not considered responsible for crimes committed while insane. A State may requireD to prove this w/ a pre-ponderance of the evidence.

M'Naughton test: To establish an insanity D, D must prove that he was laboring under such a defect of reason or disease of the mind, that he lacked total capacity or in NY, the substantial capacity to know or to appreciate
The nature and quality of what he was doing, e.g., he thought he was squeezing a lemon as he stangled his father, or
That his acts were morally wrong, e.g., he thought God had told him to kill his father.

MBE may use ALI that D knew that what he was doing was wrong, but he couldn't control it.
WHat is the Extreme Emotional Disturbance or Heat Of Passion D
EED or HOP are intentional murder Ds only. The D must demonstrate that although his mental infirmity didn't rise to the level of insanity, he never the less should be less severely punished by reducing the crime to murder to voluntary manslaughter.
What prevents a mentally disturbed D who is not competent to stand trial from doing so?
Due process prohibits D's prosecution. It doesn't violate due process to require a D to prove his own incompetency by a pre-ponderance of the evidence at a pre-trial hearing. If the court finds D incompetent, it will delay the criminal trial until the D is competent.
What is the standard for competency for standing trial, pleading guilty, or waiving the right to trial counsel?
Whether the D understood the 'nature' of the criminal charges against him, is 'able to assist in his defense,' and can intelligently decide whether to waive a right.
Where does HOP D arise from?
From a suden or exteme provocation that would cause an RPP to lose emotional self-control. Requires that a D's criminal conduct be undertaken in a fit of rage or passion as an immediate response to some provocation that prevented the D from reflecting on his misconduct and under similar circumstances, an RPP also would have suffered from an irresistible passion to kill. In an HOP jurisdiction, if there existed any 'cooling off' period, then the D's conduct is not deemed provoked but rather is pre-meditated and intentional.
What is EED?
EED is an outgrowth of HOP doctrine, but EED is significantly broader in scope (NY Rule). EED requires proof of
D's loss of self control, which is a subjective element, and
An objective reasonable excuse for losing self-control.
Does EED require the criminal act to have been a spontaneous reaction?
No. It points to something perhaps over a longer period of time, that causes an RPP to act criminally. The EED test is how a RPP would react to the circumstances, not how D would react based on individual characteristics.
What are the limits of EED D in NY?
NY - EED is only availbable as defense to intentional murder, but not any other crime, including Depraved Mind Murder.
What governs the use of force needed in Justification D?
D is based on a reasonable use of force, and whether a reasonable person would have used a similar amount of force under similar circumstances. Reasonableness determined by the gravity of the harm D intended to prevent.
What other relevant circumstances may be looked at?
May also include D's prior life experiences, such as previously being mugged or attacked. The jury should be instructed to consider both subjective and objective factors in determining whether D's use of force was reasonable.
When is deadly force justified?
Deadly force is justified
If theD's home is threatened to be or has been invaded unlawfully even though D's physical well-being is not in jeopardy,
to prevent the commission of a serious felony, even one that is not life threatening (rape), or
to prevent the imminent or unlawful use upon the D or a 3rd person of deadly physical force (faced w/ deadly force, can retaliate in kind).
In NY, and a minority of other states, what is the rule regarding deadly force where a person can retreat w/ complete safety?
A person who reasonably believes that another is about to use unlawful deadly physical force is not free to reciprocate w/ deadly physical force if he can retreat w/ complete safety.
In NY, where does the duty to retreat rule not apply? (3)

What's the MBE twist on #3?
There is no duty to retreat before using deadly force in NY if
1 D was inside his dwelling but not on his lawn or apt. stairwell/lobby,
2 D was a police officer,
3 D reasonably believed (even mistakenly in NY) that deadly force was necessary to prevent or terminate a BRAKERS crime (MBE, belief must be correct).
When may an initial aggressor assert a J D?
1 A non-deadly agressor was met w/ deadly force and was unable to retreat, or
2 He withdrew or expressly or impliedly indicated that the assault and battery was over, and the other party then became the aggressor.
What's a homicide?
an unlawful causing of death of another living human being.
How does NY define death?
the 'irreversible cessation' of the victim's heartbeat and breathng, or where these functions are artificially maintained, when the brain ceases to function.
How are the degrees of homicide distinguished?
according to the D's mental state at the time the act was committed. To obtain a homicide conviction, the DA must establish beyond a reasonable doubt that the D proximately caused another's death.
What are the different degrees of murder?
FIGS MAN (kills):
1) FELONY murder (CL 1st Deg, NY 2nd deg)
2) INTENTIONAL murder (CL 1st Deg, NY 2nd deg)
3) homicide caused by GROSS recklessness (NY 2nd deg)
4) homicide caused by SERIOUS bodily harm (intent)
What's a felony murder?
A homicide during the commission or attempt at commission of an underlying dangerous felony, or an attempt to flee.
Is intent necessary for FM?
No. Intent is replaced by the intent to commit the underlying dangerous felony.

If D acquitted of underlying felony, felony murder charge can't stand.
When are accomplices guilty for any deaths cause during the felony?
if the death was a foreseeable proximate result of the underlying felony.
What's the distinction between NY and MBE regarding FM?
In NY a FM occurs even though D didn't commit the act that caused the death. In MBE, under the 'agency doctrine' one of the felons must cause the death.
What are the predicate felonies for FM? (7)

What don't count as FM predicate felonies? (3)

What is a death that occurs during from LAB classified?
It's misdemeanor manslaughter.

However if death occurred during a misdemeanor under circumstances evidencing a depraved indifference to life, a murder may result.

Ex: D tried for attempted rape and battery. D acquitted of the attempted rape charge but convicted of battery. Thereafter the victim died from the battery. Could D be convicted of felony murder? No. Because battery is not a predicate felony for felony murder.
What is an affirmative D to FM in NY and many other jurisdictions?
In NY + many other jurisdictions, CUB:

1 Did not COMMIT, COMMAND, or request a homicide
3 Had no reason to BELIEVE that another co-consp was armed or intended to engage in conduct likely to result in death.
What is intentional murder?
where D with premed and delib desires to cause the death of another and in fact causes the death of that person or a 3rd person. It involves a premeditated, preconceived (even momentarily) intent to kill.
What inference may a jury draw as to the intent of a person who intentionally uses a deadly weapon on another and death results?
the jury may infer that the D intended to kill that person.
What is the rule of transferred intent?
if D intended to kill X but the bullet missed X and killed Y then D is guilty of Y's murder under the doctrine of transferred intent.

D intended to kill a human being, and D did in fact kill one. Thus the mens rea and actus reus were present.

D is no less culpable than a murderer whose aim is better, and thus D should be punished to the same extent.

D also is guilty of the attempted murder of X.
What is depraved mind murder DMM?
DMM is recklessly causing the death of another under circumstances under which a RPP would believe evidences a gross debase devaluing of human life.
When does DMM arise?
DMM arises when the D's conduct creates such a grave risk of death and the D was aware of that grave risk yet consciously disregarded it and in doing so evidenced an utter disregard for the value of human life.

The D acted not because he intended harm but because he simply didn't care whether or not grievous harm resulted.
Examples of DMM?
Firing shots into house/crowded bar and killing someone.
Letting a lion out of cage at zoo.
Dropping cinderblocks off an overpass
Driving at high speed on sidewalk and not braking.
What does a DMM jury focus on?
not upon the subjective intent of the D as it is w/ intentional murder but rather the focus is on an objective degree of foreseeable grave risk of death created by D's reckless conduct.
What if NY D engages in DM behavior but victim doesn't die but 'only' suffers serious physical injury?
D guilty of 1st deg assault.

If no one injured as a result of NY D's reckless conduct, reckless endangerment.

***NB -- you can't intentionally engage in DMM.***
What is NY voluntary manslaughter?
When D intended to cause serious bodily injury but death resulted.

This is also:
CL def of murder,
MBE 2nd deg murder

Ex: X and Y decided to defraud D's insurance co by submitting a fraudulent claim on D's toe. Y sawed off D's toe, and X contracted infection and died. Y guilty, because he perfomed serious bodily injury that resulted in D's death. The most serious crime for which he can be convicted for is serious bodily injury murder.
What is manslaughter?
Manslaughter occurs when D intended to commit murder, but D's intent arose in extreme circumstances of duress or in the heat of passion. In NY, it is also intent to commit serious bodily injury resulting in death.
Are verbal insults typically sufficient provocation to reduce an intentional killing to voluntary manslaughter.
No. However, adultery, an aggravated battery, or a serious criminal assault may be sufficient provocation.
What is involuntary manslaughter (InvM)?
Where the D is aware of a condition which presents a substantial risk of death but despite this knowledge proceeds to act in a reckless manner causing the death of another.

NY calls IM Mans2D
What else might encompass InvM?
A crim. neg homicide which arises where D fails to perceive a substantial risk of death, and this failure amounts to a gross deviation from the conduct expected of an RPP.

e.g., when a kid is killed whilst playing w/ a parents loaded fire arm negligently stored at home; a hunter who negligently shoots and kills another hunter; a person who points a firearm at another in jest and the firearm accidentally discharges.
What are the 5 criminal states of mind?
5 Types of murder?
FIGS MAN kills
1) FELONY Murder
3) Homicide cause by GROSS RECKLESSNESS indicating D's depraved indifference to the value of human life.
4) Intent to cause SERIOUS bodily harm resulting in death (this is voluntary manslaughter in NY)
5) MANSLAUGHTER (voluntary or involuntary).
Who can commit a felony murder? (7)

5) ESCAPE from police custody.
7) SODOMY or aggravated sex abuse 1st degree.
What are the criminal defenses? (17)

2) VAGUE criminal statute
3) Bill of ATTAINDER
5) EX POST FACTO criminal law
7) INOPERABLE or unloaded gun (for burglary or robbery in NY)
8) CLAIM of Title or CLAIM of right
9) EXCESSIVELY broad penal statute
10) Accomplices WITHDRAWAL from crime (aka D of renunciation)
13) Heat of PASSION
14) Legal or Factual MISTAKE
What are defenses to felony murder? (3)
1) Defendant did not COMMIT, COMMAND, or request homicide
2) Defendant was UNARMED
3) Defendant had no reason to BELIEVE another co-conspirator was armed or intended to engage in conduct likely to result in death.
What are the exceptions to the warrant requirement? (9)
1) BORDER searches
2) AUTOMOBILE searches
3) CONSENT searches
4) HOT PURSUIT searches
5) SCHOOL searches
6) PLAIN VIEW searches
7) Searches INCIDENT to lawful arrest
8) EMERGENCY searches
9) Proper SEARCHES and/or SEIZURES.
Is a warrantless search of a car OK?
So long as it is predicated on PC that the vehicle contains contraband or evidence of a committed crime. Police may also conduct a 'protective sweep' search if the circumstances are such that the stopping officer reasonably believes that a weapon may be in the car.
When does RS rise to PC?
When based on all the facts and circumstances viewed together, a reasonable belief may be formed that a crime has been committed and that
For a search, evidence would be found in a designated place, or
For an arrest, the person seized has committed the crime. Generally, if an occupant of a vehicle is found to possess contraband, e.g., syringe, bullets, wearing a bulletproof vest, PC exists to justify a search of the entire vehicle for weapons or drugs.
What does PC that contraband or evidence of a crime is concealed w/in a vehicle permit?
A warrantless search of the vehicle as well as of the trunk, and any closed containers that might conceal the contraband is permitted.
if a vehicle is impounded, may police search it w/o any probable cause that it contains contraband? (2)
They may inventory the car provided
(1) the inventory is conducted according to police department's defined, standardized criteria to limit what can be seized, and
(2) provided the inventory was not undertaken in bad faith for purposes of uncovering evidence of criminality.
Do passengers have standing to challenge the illegality of a stop of a vehicle?
Can they have standing to challenge an illegal search of a vehicle?
Passengers can challenge the illegality of a vehicle stop, but they don't have standing to challenge an illegal search of the car in which they are passengers because the SC no longer recognizes the automatic standing rule.
What's the NY rule on standing?
In NY, where the criminal inference of possession is the sole basis of charging D w/ possession of unclaimed drugs or a weapon, that NY D has automatic standing to challenge the legality of the search.
What REP do people have in their automobiles?
People have a diminished expectation of privacy in their automobiles.
What must exist to stop an auto? (2)
PC that a traffic violation has occurred; or
Reasonable Suspicion (RS) of criminal activity. As a protective measure, police who have lawfully stopped a vehicle may order the driver and passengers to step out of or to stay in the car.
May police use even a minor traffic infraction to stop a car suspected of being involved in criminal activity?
Yes, as long as the 'pretextual stop' was supported by a traffic infraction. It is not whether the RP Police Officer 'would have' made the stop w/o the suspicion or hunch but whether the officer legally 'could have' stopped the car for the traffic infraction.
May police briefly stop a motorist on the basis of an anonymous phone tip suggesting that the motorist has engaged in criminal activity?
Yes, provided the details of the caller's tip are confirmed by police observation.
May police make random stops of police cars?

How about DWI checkpoints?
Random vehicle stops based on a hunch are unconstitutional.

However, road blocks and safety check points to check for drunk drivers, to verify drivers' licenses for highway safety, to catch dangerous or thwart imminent terrorist attacks are not 4A violations. The police must uniformly stop vehicles in a non-discriminatory and non-arbitrary manner, thus minimizing police discretion as to whom to stop.
What will the court weigh to determine whether random stops can be made w/o individualized suspicion? (3), [1]
The public interest served by the seizure,
The degree to which the seizure advances that interest,
The severity of the individual liberty interference.

[The 'primary purpose' must not be to find evidence of ordinary criminal activity or 'general crime control,' e.g., walking a drug sniffing dog at a roadblock or a street crime unit stopping pedestrians in a high crime area w/o individualized suspicion.]
When may police search a person or place w/o a warrant and w/o PC? In MBE, what else can police do?
If they obtain the prior voluntary consent of the person in control of that area.

In MBE but not NY, even if officers have no suspicion, they may request consent to search.
In NY, what must police have before requesting consent to search?
Must have 'founded suspicion' that D engaged in criminal activity before requesting consent to search. Where founded suspicion exists, the police may ask D for consent to search w/o first stating that she is free to go or that she has a constitutional right to refuse the search.
Who may consent to search on behalf of D?
When can they not consent?
Who may never consent to a search of D's place?
A spouse, parent, or roommate may consent to a search of common areas.

The above can't consent to searches of areas to which the D had exclusive control (an REP).

When another with the authority to consent is present but refuses, a babysitter, landlord, or hotel manager, may not validly consent to a search.
May parolees validly relinquish REP?
Parolees who sign a statement may validly relinquish their REP and consent to be searched randomly w/o a warrant or PC.
What if the police are mistaken as to consent?
If police mistakenly but reasonably believe that the consenter had authority to consent to the search, the police search is valid.
Can consent be coerced/induced?
Factors? (3)
No. Consent must be voluntary and affirmative (generally, silence is not constued as consent).

Key factors in considering whether consent is voluntary are:
1. The number of police officers present;
2. Whether the consenter was under arrest and handcuffed;
3. The consenter's past experience w/ law enforcement.
What is required to extract evidence from a body cavity?
Consent or a warrant is required. The court, based on probable cause, may order only minor surgery involving no risks and only minor pain.
Is the consent arising from an illegal arrest valid?
No, unless the people demonstrate that the consent was sufficiently attenuated (a sufficient lapse of time) from the illegal arrest.
What does 4A provide? 2
1) prohibits unreasonable searches and seizures and
2) guarantees that no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized.
Through what Amendment is 4A applicable to states? How does NY interpret it.
Through the 14th Amendment. NY courts interpret the language to afford more generous protection to criminal suspects.
What does 4A not prohibit? 2
1) a warrant for reasonable searches and seizures, and
2) private reasonable or unreasonable searches or seizures.
What must gov't do to obtain a valid search/arrest warrant? 2
1) Demonstrate Probable Cause PC
2) Gov't showing must be sufficiently particular as to the place and/or person to be searched or seized.
What must magistrate find before issuing a warrant?
That the gov't has demonstrated by oath or affirmation a substantial basis for probable cause.
What must gov't show to magistrate? 2
1. In an arrest warrant, it is more probable than not that a crime has been committed, and the person to be arrested committed that crime, or
2. For a search warrant, that it's more probable than not that evidence of a crime or contraband presently is located in a certain place. These 'more probable than not' showings properly may be based on hearsay.
What does a warrant require as SPECIFICITY and PARTICULARITY?
1) A search or arrest warrant must be particular as to be place to be searched and persons or things to be seized and
2) Must be sufficiently specific so as to leave nothing to the discretion of the searcher, e.g., a warrant to search a suspect's home for ‘contraband' w/o more is too broad.
What if a warrant contains specific as well as overly broad aspects?
The court may sever it.
What sanctions for defective/missing warrants? 2
Absent an exception, the suspect may be entitled to
1) suppression of the illegally obtained evidence (the exclusionary evidence rule) or
2) money damages in tort (§ 1983 civil rights claim).
Is there REP in telephone conversations, emails, and faxes?
Yes. The police may not record or listen to conversations by means of an instrument, device or equipment (bug or wiretap) w/o
1. A court order (warrant); or
2. The consent of 1 party to the conversation.
What does NY require for wiretap warrant apps?
for eavesdropping warrant applications CPL (NY) requires A 'particular description of the nature and location of the communication facilities,' and a limited and definite time duration not to exceed 30 days w/o an application for an extension. CPL says nothing about telephone number.
What if if the 4A is violated by a wiretap, and incriminating evidence is obtained against a 3rd person who is not a party to the conversation?
The 3rd person has no REP and therefore no standing to challenge the 4A search.
What are the civil/criminal rules on eavesdropping in NY?
Eavesdropping evidence unlawfully obtained by anyone is not admissible against 'an aggrieved person' in a NY civil or criminal case. Unlawful eavesdropping is also a crime in NY.
What's the REP for phone calls/convos in prison?
SC 2006 - D incarcerated, made phone calls from prison. All calls taped; made incriminating statements. Special facts – when you are admitted to prison, you are notified that your conversations may be taped. In phone room – signs saying we'll tape your conversations. He mightn't have given express consent, but he was on notice that his calls might be taped.
What must suspect be able to demonstrate to assert his 4A privilege?
A reasonable expectation of privacy in the area searched or thing to be seized. Absent this showing, D lacks standing to challenge the search/seizure, or to suppress the incriminating evidence obtained as a result.
Does a car thief have REP in a stolen car?
How about if the car is in his garage?
If the thief locks the stolen car in his garage at home, then he has REP in that car and garage and would have standing to challenge the illegal search.
Does a person have REP when moving about in public?
No. But if you go into a place where police would've needed a warrant to enter, then you may be able to show REP.
What about overnight guests and family.
An invited overnight guest or a family has an expectation of privacy in a dwelling and standing to contest its search. This is based more on their status than whether they wound up staying there on a given night.
Is a search or seizure w/o warrant per se unreasonable?
Yes, except for BACH'S PIES.
BORDER searches
CONSENT to search
HOT PURSUIT searches
SCHOOL searches
PLAIN VIEW searches
searches INCIDENT to lawful arrest
EMERGENCY searches
What sanction for failure to obtain a warrant or fit a search or seizure w/in the BACH's PIES exceptions?
Will result in the suppression of evidence under the exclusionary rule designed by SC to deter 4A police misconduct.
May a warrantless search may be made of persons and property entering the US? 2
Yes. The elements of a border search are
1. It must be conducted at the border or its functional equivalent and
2.'Reasonable certainty' that the border has been crossed.
How do border searches escalate in their intrusiveness? (2),[1]
1- Initially warrantless border searches of a person are limited to some form of inspection or frisk of the person and his luggage.
2 - Anything more intrusive than a frisk requires an articulable level of suspicion.
3 - [Privacy concerns of dignity simply don't apply to vehicles.]
May police question and detain a traveler entering the country whose profile appears to fit the profile of a drug trafficker w/o a warrant and w/o administering Miranda warnings?
What does a crime generally consist of?
Both an illegal criminal act (actus reus) and a particular mental state (mens rea). To sustain an indictment, the people must establish by the preponderance of the evidence to convict beyond a reasonable doubt.
Is criminal liability imposed for a failure to act?
"Generally, no. Exceptions:
1) Where a statute imposes a duty to act
2) Where D's wrongful conduct created the danger
3) Where a special dependent relationship exists
4) Where a duty to act arises from a K
When is a person criminally culpable as an accomplice?
When she had a legal duty to act, oppose, prevent or lessen the harm caused by the criminal conduct of another and her inactivity was coupled with a culpability state of mind (reckless, negligent, or intentional). We need a duty to act, and we also need some mental element of culpability.
What are the five main mental elements (mens rea)?
1) Criminal negligence
2) Recklessness
3) Intent
4) Malice
5) Knowing
What is criminal negligence?
When a D objectively fails to perceive a substantial risk of harm and that failure amounts to a gross deviation from the conduct of RPP.
What is recklessness?
When D perceives a substantial and unjust. risk but consciously disregards it and his conduct constitutes a gross deviation from the behavior expected from RPP.
What is Intent?
(purposely) Exists when D consciously desires to bring about a result or is aware that his conduct is 'substantially certain' to bring it about.
What does specific intent require?
specific intent requires more than the mere intentional commission of an act, it requires both a prohibited act plus proof of an intent to cause some specified results or further consequences. It involves general intent, which is the desire to commit a prohibited act coupled w/ D's subjective purpose of bringing about an additional prohibited consequence or result.
What is an example of specific intent?
The crime of larceny is not just the taking of a property of another (general intent). It also requires proof of the additional specific intent to permanently deprive the owner of the property.
What is malice?
exists when D acts either intentionally or recklessly, but it does not refer to criminal negligence.
What is Knowingly?
exists when D acts with an awareness that certain facts or circumstances existed, e.g., the crime of perjury is to knowingly make a false statement under oath.
Do recklessness and negligence involve intent?
do not involve intent and are inferred from an objective assessment of the D's conduct in view of the surrounding circumstances.
Can a D be found guilty of an intent crime for engaging in reckless or negligent conduct?
By engaging in reckless or negligent conduct, a D may not be found guilty for the crime of intent, because the crime requires the element of specific intent.
When does the need to prove specific attempt arise in a fact pattern?
the need to prove specific intent arises whenever the def. of the crime requires the mens rea of intentionally , knowingly, purposely, or with specific intent.
Does Knowingly involve a culpable state of mind?
knowingly does not necessarily involve a culpable state of mind, but only requires that the accused have knowledge of existing facts.
When can mistake as a matter of fact be a D?
if it negates a CRIM K mental state required to establish a particular crime. Because of the D's mistake the D doesn't have the mental state required by the penal law.
What do you need to make D liable in most CL crimes?
1. Specific intent.
2. Malice.
3. Recklessness on D's part.
If mental state is Specific Intent:
1. Q will tell you.
2. Mental state must be established, depraved indifference won't work.
3. If D made mistake, it doesn't matter whether it was reasonable or not, D not guilty.
4. Voluntary intox is a recognized D, but D has to be so drunk that he doesn't know what's going on (like insane).
If mental state is Malice:
Fact pattern will be murder or arson, or malice by statute.
1. Mental state can be established either by that D intended, or D had depraved indifference state of mind.
2. If mistake defense, mistake must be reasonable.
3. Voluntary intoxication not a defense.
If mentals state is Reckless:
Q will tell you (battery), or by statute.
2. Mental state will be established either by showing D acted intentionally or was reckless.
3. If D made mistake, must be reasonable to be defense.
4. VI no defense.
Search Seizure rules:
1. D has a right to be free from unreasonable SS in all areas where D has REP. Home, car, business, personal effects. Person has no REP in somebody else's home, car, open field, garbage at curtilage, etc.
2. If D no REP, can't complain about search now matter how unreasonable. If D had REP, can complain about unreasonable searches, but not reasonable ones.
3. MBE search reasonable if police have warrant based on PC, or a warrant exception applies.
4. MBE - 7 exceptions to warrant req:
+ Consent
+ Automobile search (eliminates warrant req, but not PC req)
+ Plain view
+ Stop and frisk - lesser intrusion doesnt' amount to full scale search, but still require SS (Terry).
+ True emergency - HP, evanescent evidence, public safety.
+ Administrative inventory search.
5. When police make valid arrest of car's driver, can search area of car w/in driver's immediate control-> Entire passenger compartment OK.
6. Police can't search trunk ILA of driver. Need other exception (automobile, PC, consent)
7. If police conducting legitimate search, can seize any illegal items found.
8. If search unreasonable, and there is REP, no warrant, and no warrant exception applies, usual remedy is to suppress evidence seized. Except:
+ Good faith belief that warrant was valid.
+ Evidence used at a proceeding other than trial on merits (like GJ)
+ Evidence used to impeach D who has testified to show D not telling truth.
Confession problems:
Fact pattern - P trying to intro confession, D trying to exclude.
1. Always start with the proposition that D's confession will be admissible against D.
+ Ev: it's a party admission offered by opponent relevant to the case.
2. To keep out, D must establish a constitutional violation that has as a remedy suppression of confession:
+ Confession was involuntary
+ Miranda not complied with
+ D formally charged (on MBE indicted) and confession occurs w/o counsel present.
3. If no violation, confession is admissible.
4. If you find a violation, confession is excluded.
Double jeopardy:
If each of 2 crimes requires proof of fact that other doesn't, not considered same offense for purposes of double jeopardy. On MBE, if 2 crimes not same, D can usually be charged on both.
What are the elements of the crime of issuing a bad check?
1) drawer puts a check into circulation

2) knowing that there are insufficient funds to cover it,

3) with the bleief that payment will be refused by the drawee, and

4) payment is in fact refused by the drawee.

Note: knowledge and intent of the drawer are presumed if:

1) no account exists with the drawee or

2) he has insufficient funds in the bank at the time of issuance and presentation of the check.