Criminal Pro

Question 1

Definition of the Exclusionary Rule

Answer 1

(i) Unconstitutionally obtained evidence is inadmissible at trial, AND
(ii) All fruits from the poisonous tree must also be excluded UNLESS
(iii) The costs of excluding the evidences outweighs the deterrent effect of police misconduct.

Question 2

When do you apply the exclusionary rule?

Answer 2

Someone who has been the victim of an illegal search or a coerced confession can (among other remedies) have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution.

Question 3

When does the exclusionary rule not apply ? i.e., situations where unconstitutionally obtained evidence can come in to a subsequent criminal prosecution?

Answer 3

(1) grand jury proceedings (unless the evidence was obtained in violation of the federal wiretapping statute)
(2) civil proceedings
(3) parole revocation proceedings
(4) good faith reliance on the law (defective search warrant or clerical errors–police arresting someone erroneously but in good faith thinking they were acting pursuant to a valid arrest warrant, search warrant, or law
(5) violations of the knock and announce rule in the execution of search warrants
(6) rule doesn’t apply to the use of the excluded evidence for impeachment purposes

Question 4

Fruits from the poisonous tree doctrine

Answer 4

Evidence obtained from exploitation of the unconstitutionally evidence. Under the exclusionary rule, unconstitutionally obtained evidence is inadmissible at trial, and all “Fruits of the Poisonous Tree” must also be excluded UNLESS the costs of excluding the evidences outweighs the deterrent effect of police misconduct. The FPT Doctrine will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived from police illegality.

Question 5

Exceptions to the Fruit of the Poisonous Tree Doctrine

Answer 5

Situations where FPT will NOT be excluded

(1) The FPT doctrine does NOT apply to statements obtained in violation of Miranda requirements UNLESS the police act in bad faith in obtaining such information.
(2) Violations of the knock and announce rule

Question 6

How can the gov’t break the chain between an original, unlawful police action and some supposedly derive piece of evidence that is fruit of the poisonous tree?

Answer 6

Mnemonic: 3 In’s (3 ways to get evidence “in” after unlawfully obtaining it)

(i) Independent Source - Government could show that it had an Independent Source for that evidence, independent of that original police illegality.
(ii) Inevitable Discovery - Police would have inevitably discovered the evidence anyway
(iii) Intervening Acts of Freewill on the part of the D
- Watch out for voluntary confessions

Question 7

Does the exclusionary rule overturn convictions in which improperly obtained evidence was admitted at trial?

Answer 7

A conviction will NOT necessarily be overturned b/c improperly obtained evidence was admitted at trial. On appeal, a court will apply the harmless error test. Under the harmless error test, a conviction will be UPHELD if the conviction would have resulted despite the improper evidence.
- If illegal evidence is admitted, a resulting conviction should be overturned unless the government can show beyond reasonable doubt that the error was harmless.

In habeas proceeding where the Petitioner claims constitutional error, Petitioner should be released if he can show that the error had a substantial and injurious effect or influence in determining the jury’s verdict. If the judge is in grave doubt as to the harm the petition must be granted.
NOTE: the harmless error standard NEVER applies to the denial of the right to counsel at trial – i.e. this error is never harmless.

Question 8

For enforcement of the exclusionary rule, who bears the burden to show that the evidence should be admitted at trial?

Answer 8

Government bears the burden of establishing admissibility by a preponderance of the evidence

Question 9

For enforcement of the exclusionary rule, who makes the decision as to whether the evidence should be let in at trial?

Answer 9

D is entitled to have the admissibility of evidence or confession decided as a matter of law by the judge outside the hearing of the jury

Question 10

For enforcement of the exclusionary rule, what are defendant’s rights regarding the admissibility of the evidence or confession?

Answer 10

D has a right to testify at a suppression hearing w/o his testimony being admitted against him at trial on the issue of guilt
D is entitled to have the admissibility of evidence or confession decided as a matter of law by the judge outside the hearing of the jury

Question 11

What does the fourth amendment protect?

Answer 11

THE 4TH AMENDMENT PROTECTS CITIZENS FROM UNREASONABLE SEARCHES & SEIZURES.

Question 12

A seizure occurs when…

Answer 12

under the totality of the circumstances, a reasonable person would feel that he was not free to decline the officer’s request.

Question 13

An arrest occurs when…

Answer 13

police take a person into custody, against their will for purposes of criminal prosecution or interrogation.

Question 14

Standards for Arrests:

Answer 14

an arrest must be based on probable cause (trustworthy facts or knowledge sufficient for a reasonable person to believe that defendant did the crime. Arrest warrants are generally not required before arresting someone in a public place However, a non-emergency arrest of an individual in his home does require an arrest warrant.

Question 15

When is an arrest warrant generally not required?

Answer 15

Arrest warrants are generally not required before arresting someone in a public place

Question 16

When are arrest warrants generally required?

Answer 16

However, a non-emergency arrest of an individual in his home does require an arrest warrant

Question 17

Station House Detention

Answer 17

The police need PROBABLE CAUSE to arrest a person & compel them to come to the police station either for finger printing or interrogation.
NOTE: the police do NOT need probable cause when they ask you to come to the station and you consent. But if you say no, then they do.

Question 18

What is an investigatory Detention?

Answer 18

aka Terry Stops:
To briefly detain a person the Police must:
1. Have a Reasonable suspicion
2. Supported by articulable facts
3. Have a reasonable suspicion to frisk for weapons
4. Act in a diligent & reasonable manner
5. Reasonable suspicion depends on totality of the circumstances

Question 19

Terry Stop Requirements:

Answer 19

The police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make such a stop, the police must have a reasonable suspicion supported by articulable facts of criminal activity.

NOTE: a hunch of criminal activity is never enough, even if the hunch ends up being correct

Whether the police have reasonable suspicion depends on the totality of the circumstances

Question 20

Whether the police have reasonable suspicion depends on …

Answer 20

the totality of the circumstances…

Question 21

What are the requirements for the police to stop a car?

Answer 21

The police may stop a car if they have at least a reasonable suspicion that the law has been violated. Exception–check point road blocks. Automobile stop constitutes a seizure of the driver and any passengers. Thus, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop.

Question 22

Check-Point Road Blocks:

Answer 22

An exception to the automobile stop rule that police must have at least a reasonable suspicion that the law has been violated. To be valid the roadblock must:

(i) Stop cars on a neutral, articulable standard AND
(ii) Designed to serve a purpose closely related to a particular problem pertaining to cars and their mobility (e.g. DUIs). Exception applies to check points for DUI’s or border crossings.
- BUT NOTE: Exception never applies to a roadblock to search car for drugs b/c the purpose of such a checkpoint is only to look for evidence of ordinary criminal wrongdoing.

Question 23

An automobile stop constitutes a search, arrest, or a seizure?

Answer 23

Automobile stop constitutes a seizure of the driver and any passengers. Thus, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop

Question 24

After lawfully stopping a car, what can the police proceed to do?

Answer 24

In the interest of safety, after lawfully stopping a car the police may:

(i) order everyone to get out of the car and
(ii) frisk and search passengers compartments even after ordering them out IF Officer reasonably beliefs there’s weapons

Question 25

What is the rule regarding pretextual stops?

Answer 25

Pretextual Stops: If police have probable cause to believe driver violated a traffic law they can stop the car, even if their ulterior motive is to investigate a crime that they don’t have cause to stop the car for.

Question 26

Rule regarding police dogs and traffic stops?

Answer 26

During routine traffic stops, a sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.

a. Moreover, in 2013 the Supreme Court held that during such a traffic stop, a dog “alert” to the presence of drugs can form the basis for probable cause for a search.
b. BUT NOTE: In 2013, the Supreme Court also held that the police (w/o probable cause) cannot use a drug sniffing dog directly outside the home of a suspected drug dealer.

Question 27

The police can detain a suspect and prevent him from going into his house unaccompanied if…

Answer 27

the police have probable cause to believe the suspect is hiding drugs in his house and they want to prevent him from destroying the drugs while they get a warrant.

Question 28

Can the police detain occupants of the premises during their search?

Answer 28

If the police have a valid warrant to search a premises they can detain the occupants of the premises during the search

Question 29

Does the 4th amendment protect seizure of a person by subpoena for grant jury purposes?

Answer 29

Seizure of a person by subpoena for grand jury appearance is NOT within the 4th amendment protections.

Question 30

T/F

There is a 4th amendment seizure when police use deadly force to apprehend a suspect.

Answer 30

True: There is a 4th amendment seizure when police use deadly force to apprehend a suspect. Officer cannot use deadly force unless it’s reasonable to do so under the circumstances

Question 31

What are the requirements to be valid under the 4th amendment for search and seizures?

Answer 31

To be valid under the 4th amendment evidentiary search and seizures must be reasonable. Searches conducted pursuant to a warrant are generally required (absent the 6 exceptions)

Question 32

A valid warrant requires that…

Answer 32

A valid warrant requires that it is issued by a neutral and detached magistrate on a showing of probable cause and be reasonably precise as to the place to be search and the items to be seized.

(i) A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed.
(ii) A warrant must describe with reasonable precision the place to be search and the items to be seized if it does not, the warrant is unconstitutional even if the underlying affidavit gives such detail.

Question 33

Generally, police must have a warrant to conduct a search unless …

Answer 33

Generally, police must have a warrant to conduct a search unless one of following six exceptions apply:

(i) Search incident to arrest
(ii) Automobile search
(iii) Plain view
(iv) Consent
(v) Stop and frisk
(vi) Hot pursuit, evanescent evidence, and special needs searches (emergency aid)

Question 34

Who can issue a warrant? What is the standard to do so?

Answer 34

A valid warrant requires that it is issued by a NEUTRAL and DETACHED magistrate on a showing of probable cause and be reasonably precise as to the place to be search and the items to be seized. A warrant will be issued ONLY IF THERE IS PROBABLE CAUSE to believe that seizable evidence will be found on the person or premises at the time the warrant is executed.

Question 35

What does the warrant consist of?

Answer 35

A warrant must describe with reasonable precision the place to be search and the items to be seized if it does not, the warrant is unconstitutional even if the underlying affidavit gives such detail.

Question 36

Execution of a warrant?

Answer 36

Only the police may execute a warrant (exception for 3rd parties involved in execution)
Must be executed w/o unreasonable delay
Police MUST knock and announce unless dangerous or futile

Question 37

Scope of a search under a warrant

Answer 37

Scope of the search is limited to what is reasonably necessary to discover the items described in the warrant

Question 38

What can be seized under a warrant?

Answer 38

Police can seize any contraband/fruits/instrumentalities of crime discovered, whether or not specified in the warrant
Remember: violations of knock and announce will not result in the suppression of evidence – exclusionary rule does not apply here

Question 39

Warrant to search for contraband authorizes police to detain occupants of the premises during a search BUT:

Answer 39

(i) It does not authorize police to search persons found on the premise who were not named in the warrant
(ii) It does not authorize police to follow, stop, detain and search persons who left the premises shortly before the warrant was executed.

Question 40

What is the steps in answering a search/seizure question?

Answer 40

(1) Was there conduct by a government agent to trigger rights granted under the 4th amendment?
(2) Was there a Reasonable Expectation of Privacy in the area searched & things seized so that individual can object to the search/seizer by government? - This is a Standing Issue to Object to the search and seizure.
(3) Did The Police Have A Valid Search Warrant?
(4) If the warrant is not valid, does an officer’s good faith defense save the defective search warrant?
(5) If a warrant is invalid & cannot be saved by the good faith defense or if the police never had any warrant at all, then you move to this last step, the exceptions.

Question 41

What is Evanescent Evidence?

Answer 41

Evanescent Evidence: evidence that might disappear quickly if the police took the time to get a warrant.
EX: A police officer can scrape under a suspect’s fingernails w/o getting a warrant b/c if you took the time to get a warrant the D might go wash his hands.
But Note: In 2013, the Supreme Court held that officers need to get a warrant before taking a blood sample for a DUI arrest if it’s practical to do so.

Question 42

Was there conduct by a government agent to trigger rights granted under the 4th amendment?

Answer 42

(1) The publicly paid police on or off duty.
OR
(2) Any private individual acting at the direction of the public police. (Ex: police ask your roommate if your roommate can search your room for drugs)
(i) Privately paid police actions do NOT constitute governmental conduct UNLESS they are deputized w/ the power to arrest you
(ii) Examples of privately paid police:
- Store Security Guards;
- Subdivision Police;
- Campus Police.

Question 43

Was there a Reasonable Expectation of Privacy in the area searched & things seized so that individual can object to the search/seizer by government?

Answer 43

This is a Standing Issue to Object to the search and seizure.
Automatic Categories of Standing: 3O’s -owner, occupying, overnight guest!
(i) If you own the premises searched you ALWAYS have standing to object to the search of the place you own.
(ii) You live on the premises searched, whether you have ownership interest or not.
- Example: Grandchild living at grandparents’ home.
(iii) Overnight Guests have standing to object to the legality of the search of the place they are staying.

“Sometimes” Category of standing (important): If you own the property seized you have standing only if you have a reasonable expectation of privacy in the item or area searched

Question 44

When is there never standing & an individual cannot object to search and seizer?

Answer 44

The “No Standing” Categories. You have NO expectation of privacy, & therefore no standing for anything that you hold out to the public everyday
(i) The following is a list of things held out to the public, the seizure of which implicates no right of privacy:
- The sound of your voice
- The style of your handwriting
- The paint on the outside of your car.
- Account records held by a bank
- Anything that can be seen across the open fields
- Anything that can be seen from flying over in the public airspace
- The odors emanating from your luggage or car
- Garbage set out on the curb for collection
- Monitoring the location of your car on a public street or in your driveway.
BUT NOTE: In 2012, the Supreme Court held that installation of a GPS device on a suspect’s car constitutes a search w/in the Fourth Amendment. Thus need probable cause & a warrant

Question 45

Homer & his girlfriend Marge are walking down the street when Homer sees police officers walking toward them. In a somewhat nonchalant manner, Homer takes drugs out of his pocket & stuffs them into Marge’s purse. Homer is arrested, & he later admits that the drugs were his. Does Homer have standing to object to the search of Marge’s purse?

Answer 45

Answer: Homer does not have standing to object to the search of Marge’s purse. At issue is whether an individual has reasonable expectation of privacy so as to justify an object to the search of another’s property. Although it is possible for Homer to have a reasonable expectation of privacy to Marge’s purse, the facts do not indicate facts necessary to show such (i.e. every day he went into Marge’s purse 15X, etc.) Under these facts, however, Homer does not have reasonable expectation of privacy in Marge’s purse.

Question 46

Did The Police Have A Valid Search Warrant? What are the requirements for a facially valid search warrant?

Answer 46

There are two core requirements for a facially valid search warrant: probable cause & particularity

(i) Probable Cause Standard: A fair probability that contraband or evidence of a crime will be found in the area searched.
(ii) Particularity: The warrant must state w/ particularity (reasonable precision) the place to be searched & the things to be seized

Question 47

Warrants & the Use of Informants

Answer 47

(i) If an officer’s affidavit OR probable cause is based on informant information, its sufficiency is determined by the totality of the circumstances
(ii) An informant’s credibility & basis of knowledge are all relevant factors in making this determination.
(iii) A valid warrant can be based in part on an informant’s tip even though that informant is anonymous
- BUT NOTE: a valid warrant Cannot be solely based on anonymous tip; needs more

Question 48

When is the “no knock” entry permitted in the execution of search warrants?

Answer 48

“No Knock” entry permitted in the execution of search warrants if exigent circumstances exist:

(i) An officer need not “knock & announce” if K/A would be dangerous, futile, or inhibit the investigation.
(ii) Biggest fear of inhibiting the investigation: Destruction of Evidence

Question 49

Step 4: GOOD FAITH DEFENSE? If the warrant is not valid, does an officer’s good faith defense save the defective search warrant?

Answer 49

General Rule: An officer’s good faith reliance on a search warrant overcomes defects w/ the probable cause or particularity requirements.

Question 50

Exceptions To A Good Faith Reliance On A Defective Search Warrant

Answer 50

Exceptions To A Good Faith Reliance On A Defective Search Warrant (4):

(i) The affidavit underlying that warrant is so lacking in probably cause that no reasonable police officer would have relied on it;
(ii) The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it;
(iii) The police officer or prosecutor lied to or mislead the magistrate when seeking the warrant; or
(iv) If the magistrate is biased & therefore has wholly abandoned his neutrality.

Question 51

An affidavit in support of a warrant states that the officers “have it on good information & do believe that there are drugs at Lindsay’s house,” but states nothing else. Is this affidavit legally sufficient to establish probable cause?

Answer 51

Answer: No, the affidavit is not legally sufficient to establish probable cause. In this case, the facts fail to show anything about why the police think this and where they received this information. Thus, so lacking in probable cause so it would not be a good faith defense.

Question 52

EXCEPTIONS TO THE WARRANT REQUIREMENT
If a warrant is invalid & cannot be saved by the good faith defense or if the police never had any warrant at all, then you move to this last step, the exceptions.

Answer 52

Exceptions to the Warrant Requirement, i.e. when is a warrant not necessary:
(i) SEARCH INCIDENT TO ARREST
(ii) AUTOMOBILE EXCEPTION
(iii) PLAIN VIEW
(iv) STOP & FRISK
(v) CONSENT
(vi) HOT PURSUIT, EVANESCENT EVIDENCE, AND SPECIAL NEEDS SEARCHES (EMERGENCY AID)
“Searching in an automobile permits shady cop habits”

Question 53

Search Incident to Arrest

Answer 53

The arrest must be lawful (constitutional) [Unlawful Arrest = Unlawful Search]
The arrest & search must be contemporaneous in time & place.
Geographic Scope Limitation: What can be searched? The person & the areas w/in the person’s wingspan.
(iv) Police may make a protective sweep of the area if they believe accomplices may be present
(v) Automobiles for Search Incident to Arrest (Gant Rule):
- The police may search the interior (not the trunk) of the auto incident to arrest ONLY IF:
› The arrestee is unsecured & still may gain access to the interior of the vehicle; OR
› The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle
- Exception to the Gant Rule - Community Caretaker: Most states recognize the community caretaker exception to this rule, which justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public. Also known as the emergency aid exception
› The community caretaker exception is its own separate and distinct exception to the warrant requirement but it’s being applied a lot more to automobiles since Gant.
(vi) Search incident to arrest - incarceration or impoundment
- At the police station, the police may make an inventory search of the arrestee’s belongings and impounded vehicle (if impounded)
- If officers make an arrest supported by probable cause to hold for a serious offense, at the station, police may take and analyze a check swab of the arrestee’s DNA (this is reasonable under the 4th)

Question 54

The Automobile Exception

Answer 54

In order for the police to search anything or anybody & fall under the automobile exception they must have probable cause. IF – BUT ONLY IF – before searching anything or anybody the police have probable cause then they can search the entire car. This includes the entire interior compartment, & the trunk.
- Moreover, if there is probable cause, the police may open (w/o a warrant) any package, luggage or other container, which could reasonably contain the item they had probable cause to look for whether that package, luggage or other container is owned by the passenger or the driver.
The probable cause necessary to justify the warrantless search of an auto under the automobile exception CAN arise after the car is stopped. BUT the probable cause must arise before anything or anybody is searched.
(iv) If a warrantless search of a vehicle is valid the police may tow the vehicle to the station and search it late
- NOTE: if the police have probable cause to believe that an automobile itself is contraband they may seize it from a public place w/o a warrant.
(v) NOTE: Police have fairly broad authority to search a vehicle depending on what they are looking for. If there probable cause to search a vehicle, the police can search the entire car and anything in it that might contain evidence. Thus, if they’re looking for drugs, they can look in almost anything in the car. But if they’re looking for undocumented aliens, they cannot look inside a small suitcase.

Question 55

The plain view warrant exception

Answer 55

To constitute a valid plain view seizure:

(i) The Officer must be legitimately present at the location where he does the viewing (discovers) of the item seized.
(ii) It must be immediately apparent that the item is contraband or a fruit of a crime.

Question 56

Consent

Answer 56

For consent to be valid as an exception to the warrant requirement, the consent must be voluntary

• Police saying they have a warrant negates consent thus it never constitutes valid consent.
  (ii) Knowledge of the right to withhold consent is not a prerequisite to establishing voluntary consent.

Question 57

Third party consent rule

Answer 57

Third Party Consent Rule: where 2+ people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present & one person consents to the search & the other does not consent, then the one who does NOT controls

Question 58

D is lawfully arrested in Philadelphia at noon & the police later search him in Pittsburgh at 5pm. Is this a valid search incident to arrest?

Answer 58

No, this is not a valid search incident to arrest because the arrest and search are neither contemporaneous in time nor place which is required of a search incident to arrest.

Question 59

State v. Gant: The police arrested D for driving on a suspended license shortly after he stepped out of his car. D was then handcuffed & placed in a squad car. The police then searched the passenger compartment of D’s car & found cocaine in a jacket in the car. Is this a valid search incident to arrest?

Answer 59

Answer: Under the old law, this would be a valid search incident to arrest. However, the Supreme Court overturned that precedent and held that this is no longer a valid search incident to arrest because the arrestee was secured and there was no way to find evidence for which a person was arrested, (i.e. offense of suspended license), in the car. Therefore this is not a valid search incident to arrest.

Question 60

While on patrol in her squad car, Officer LaGuerta sees a car swerving across the center lane & driving erratically. The Officer stops the car, & approaches the driver side window. The man in the car & the car itself reek of alcohol, & the man’s speech is slurred. After administering a sobriety test (which the driver failed), the driver is arrested, handcuffed & placed in the back of the locked squad car. Officer LaGuerta then searches the man’s car & finds drugs & an illegal handgun. Will these items be admissible at the man’s trial? • (1) Does it matter that what was found during the search (the drugs & the illegal handgun) was different than what gave rise for the officer to search (the alcohol)? • (2) What if the car didn’t reek of alcohol & was a straight DUI arrest? Would the officer have grounds under prong #2 of Gant to search the interior of the vehicle?

Answer 60

Answer: These items will likely be admissible at the man’s trial. Under these facts, there was a lawful search incident to arrest. While it is true that the arrestee was secured, the car itself reeked of alcohol and D is being arrested for a DUI offense. Therefore, it’s probable reasonable for the officer to believe that there is evidence of the offense for which D is being arrested for (the DUI). Thus, it is likely valid under Element/Prong #2 of Gant. (see supra Gant Test)

(1) No, so long as the search itself is valid, any contraband found will be admissible. Remember for all Searches: So long as the search itself is valid ANY contraband found will be admissible. THE ANALYSIS/FOCUS IS ON THE SEARCH (not what was found)
(2) Yes and No, but unsettled issue if these are the facts provided in a hypo on the exam. Thus, it is still in dispute and unlikely to be on exam. If it is, then argue both ways & circuit split. Very unlikely to be on the exam.

Question 61

Officers get a call about a blue pickup truck in the park and the passenger is shooting at signs in the park. The officers go to the park and see a blue pickup truck that is parked but there was no one in the truck. The windows of the truck are rolled down half way. The officers look in the truck and sees what they think is gun holster but they aren’t sure b/c there’s a newspaper on top of it. The officer (who has no warrant) reaches in to the truck through the window and pull back the newspaper and it was in fact a gun holster with a gun in it.

Answer 61

9th circuit held the search valid under the community caretaker exception b/c a kid playing in the park could have done the same thing the officer did and gotten a hold of the gun.

Question 62

While on patrol in their squad car, Officers Ponch & John observe a car speed past them going well over the posted speed limit. Ponch approaches the driver side window & asks for the driver’s license & registration. While pulling out his license, a bag of crack cocaine & a pipe falls out of the man’s pocket, which Ponch observes. Ponch asks the driver to step out the car & then informs the driver that he is under arrest. While reading the driver his Miranda rights & attempting to handcuff him, the man breaks free & runs off. Officer Ponch chases after him. Officer John, now w/ bad knees, does not join the chase, but instead searches the driver’s car. Officer John finds recently stolen jewelry under the passenger seat. Is this a valid search incident to arrest?

Answer 62

Answer: Under these facts, it is clearly a valid incident to arrest. Grant prong #1: arrestee is clearly unsecured. When a cop says your’re under arrest, your under arrest so running off means the arrestee is unsecured. The facts possibly satisfy prong #2. Would there be evidence of the offense for which the person is arrested for (cocaine)? This brings us back to the unsettled part of the law so its unlikely to see this on the exam. However, it is unsecured arrestee therefore, it is a valid incident to arrest.

Question 63

The DC police have over 30 reports that drugs are being sold out of the back of a car. The police know everything about the car, the make, the model, the license number but they know nothing about the drug seller. A DC police officer, aware of the 30 reports, sees the car go by driving at a lawful speed. The officer stops the car, but he does not arrest the driver. He orders the driver out of the car & searches the car. The officer finds a box under the passenger seat, opens the box & finds drugs. Will the drugs be admissible?

Answer 63

Answer: Although there is no warrant under these facts, there is an automobile exception and because there is probable cause due to the 30+ police reports, etc. it is a valid search and the drugs will be admissible. Also, note that the results would have been the same here if the officer searched the trunk b/c with the automobile exception police can get into the trunk.

Question 64

The DC police have over 30 reports that drugs are being sold out of the back of a car. The police know everything about the car, the make, the model, the license number but they know nothing about the drug seller. A DC police officer, aware of the 30 reports, sees the car go by driving at a lawful speed. The officer stops the car, but he does not arrest the driver. He orders the driver out of the car & searches the car. The officer finds a box under the passenger seat, opens the box & finds drugs. Will the drugs be admissible? Same facts as Hypo #8, but instead of drugs, the police have probable cause (from multiple reports) that stolen TVs are being sold out of the back of a van. Again, the officer stops the van, searches it, & finds a small six inch by six inch box under the passenger seat. If the officer opens the box & finds drugs, will the drugs be admissible?

Answer 64

Answer: No. Even though probable cause, a 6” x 6” box could not possibly or reasonable contain item you had probable cause to search. Therefore, the drugs are not admissible.

Question 65

• Hypo #10: A Denver police officer pulls over a car to give a speeding ticket. The car was stopped when the police officer noticed that the car, driver, & passenger fit a description just broadcast of people involved in the theft of auto parts. And then the police officer looks in the back seat & sees lug nuts, wrenches, & other things that suggest the theft of auto parts. The officers seize the auto parts & then search the trunk (w/o permission) & find drugs. Before trial, defense counsel moves to suppress all evidence. The judge should rule that:
o A. Both the auto parts & the drugs are admissible.
o B. Neither the auto parts nor the drugs are admissible.
o C. Only the auto parts are admissible.
o D. Only the drugs are admissible.

Answer 65

Answer: What is the best answer? A
Why? Because the officer had probable cause under automobile exception. Once the officer had P.C under the auto exception he can search the entire car, including the trunk. Here the P.C it did arise after the car was stop, but it arose before anything or anyone was searched. But note, it is not a search if an officer validity pulls over a car and see something in plain view. That’s why in this case the P.C arose after the car was stopped but before anyone or anything was searched.

Question 66

A police officer for no reason runs through the front door of your apartment & then sees the big pile of marijuana in plain view. Is this a valid exception to the warrant requirement?

Answer 66

Answer: No, the pot is in plain view, but officer was not legitimately present when he did the viewing.
Also watch out for: “and then the officer saw a paper sack” in plain view and then the officer opens the sack and finds all kinds of evidence of a crime. Is this a valid plain view exception? No b/c it’s not imminently apparent that the paper sack is contraband or fruits of a crime.

Question 67

The police come to your house & say, “we have a warrant. Do you mind if we look around?” You respond by saying, “Okay, go ahead.” Drugs are found in your house & you are arrested, but the warrant subsequently turns out to be invalid. Is the evidence still admissible b/c you consented to the search?

Answer 67

Answer: No, police saying they have a warrant negates consent thus it never constitutes valid consent.

Question 68

Stop and Frisk Terry Stop–Definition

Answer 68

Definition: a Terry Stop is a brief detention for the purpose of investigating suspicious conduct. Police may stop a person w/o probable cause for arrest if he has a reasonable suspicion supported by articulable facts.

Question 69

Legal Standard for a Terry Stop

Answer 69

Legal Standard for a Stop: Reasonable Suspicion

- Reasonable Suspicion Standard is less than the Probable Cause Standard.

Question 70

When is a Terry Frisk justified, what is the scope of such a frisk?

Answer 70

A frisk will be justified only if the officer reasonably thinks that the suspect has a weapon.
Scope of the frisk: Generally limited to a pat down of the outer clothing & body to check for weapons.
- Admissibility of evidence: During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its plain feel, is a weapon or contraband, and these items are admissible as evidence. However, an officer cannot manipulate the contours.

Question 71

Automobile Stops: If a vehicle is properly stopped for a traffic violation & the officer reasonably believes that a driver or passenger may be armed & dangerous, the office may:

Answer 71

(1) Conduct a frisk of the suspected person; AND

(2) Search the vehicle so long as limited to areas where a weapon may be placed

Question 72

While on patrol in a high crime area, police officers notice a man standing on the corner wearing a red bandana & red shoes (typical colors of the Bloods street gang). The officers pull over & observe the man for fifteen minutes & the man never moves from the street corner. Suspecting him of being a drug dealer, the police approach him & say they would like to ask him a few questions. The man says he needs to leave the area & refuses. If the police persist, is this a valid Terry stop?

Answer 72

Answer: If the police persist, this is not a valid terry stop. The issue is whether the circumstances give rise to reasonable suspicion for a terry stop. Although the Supreme Court, in dicta, stated that such facts are getting close to enough for reasonable suspicion to arise, under these circumstances it is not enough.

Question 73

NY police officers observe two teenage boys pushing a baby carriage down the street at midnight, & they notice that where the baby was supposed to be, there was a computer terminal. When the boys see the officers, they quickly turn in the opposite direction & speed up their pace. Can the police lawfully stop the boys?

Answer 73

Answer: Yes, these facts provide enough for reasonable suspicion.

Question 74

Officers stop a man on reasonable suspicion, pat him down & feel something in his pocket which has the same shape as a gun, & in fact it turns out that the object is a gun. Is the gun admissible?

Answer 74

Answer: Yes, the rule is so long as stopping is reasonable, and there is a reasonable belief the man may be armed and dangerous, the evidence found from the terry frisk is admissible.

Question 75

Officers stop a man on reasonable suspicion, pat him down & feel something in his pocket. The officers reach inside & pull out evidence of a previous crime reported in the neighborhood - but not a weapon. Is the evidence admissible?

Answer 75

Answer: Depends because the rule is that if an officer reasonably believes by the plain feel that something is a weapon/contraband, the evidence is admissible. However, an officer cannot manipulate the contours.

Question 76

Evanescent Evidence, Hot Pursuit, & Special Needs Searches:

Answer 76

• Police in hot pursuit of a fleeing felon may make a warrantless search and seizure + pursue a suspect into a private dwelling. Any evidence police see in plain view will be admissible if their truly in hot pursue.
• Police may seize w/o a warrant evidence likely to disappear before a warrant can be obtained
• Police may enter premises w/o a warrant for emergencies affecting health/safety

Question 77

What if during an investigatory stop, probable cause arises for a crime?

Answer 77

If cause arises during an investigatory stop, the detention can become an arrest & the officer could then conduct a full search incident to that arrest

Question 78

For a search incident to arrest, (exception to the warrant requirement) what can be searched?

Answer 78

Geographic Scope Limitation: What can be searched? The person & the areas w/in the person’s wingspan.

Question 79

Rules for hot pursuit?

Answer 79

• Rule Of Thumb: If the police are not w/in 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception.
• If the police are truly in hot pursuit they can enter anyone’s home w/o a warrant, & any evidence they see in plain view will be admissible.

Question 80

What is an inventory search?

Answer 80

Before incarceration of an arrestee, the police may search:

• (1) The arrestee’s personal belongings, &/or
• (2) The arrestee’s entire vehicle including any closed containers

Question 81

When does a warrant need be issued for wiretapping and eavesdropping?

Answer 81

All wiretapping & eavesdropping requires a warrant
A valid warrant authoring a wiretap may be issued if
(i) There’s Probable cause
(ii) Suspects involved are named
(iii) Warrant describes w/ particularity the conversations that can be overheard
(iv) Wiretap limited to a short period of time
(v) Wiretap is terminated when desired info is obtained
(vi) Return to the court showing what conversations were intercepted

Exceptions (eavesdropping only): a. “Unreliable ear” & “Uninvited Ear” – no warrant necessary

Question 82

To have an admission/confession be admissible under the 5th amendment privilege, what is required?

Answer 82

For an admission or confession to be admissible under the 5th amendment privilege against self-incrimination a person in custody must be informed in substance of the miranda warning.

Question 83

When Miranda warnings are required, the suspect must be given the following information:

Answer 83

Miranda warning. When Miranda warnings are required, the suspect must be given the following information:
(i) You have a right to remain silent
(ii) Anything you say can be used against you in court;
(iii) You have the right to an attorney; AND
(iv) If you can’t afford an attorney, one will be appointed for you if you so desire.
NOTE: The warnings need not be verbatim so long as the substance of the warnings is conveyed.

Question 84

What consequences of the failure to give miranda warning

Answer 84

Failure to give the warning violates a D’s 5th amendment right to be free from compelled self – incrimination NOT the D’s 6th amendment right to counsel

Question 85

When is a miranda warning required?

Answer 85

Anyone in the custody of the government and accused of a crime must be given Miranda warning PRIOR to interrogation by the police.
Trigger for required Miranda Warnings: Custodial Interrogation. In any Miranda based question there are two parts to the analysis: Custody (custodial) AND Interrogation. Each part has a separate and distinct analysis because each part has its own rule

Question 86

What is the Analysis for questions regarding miranda rights?

Answer 86

Custodial Interrogation:
In any Miranda based question there are two parts to the analysis: Custody (custodial) AND Interrogation. Each part has a separate and distinct analysis because each part has its own rule

Question 87

How to determine if custody exsists (miranda rights)

Answer 87

(i) Legal Standard for Custody - The Freedom of Movement Test
- TEST: An individual is in custody if, at the time of the interrogation, a reasonable person would not feel free to leave
- This is an objective standard
- The freedom of movement test also applies when you are in a police car or in jail, but you could also be in your home or in a hospital bed.
- Note:
› Probation Interviews ≠ “custodial”
› Routine Traffic Stops ≠ “custodial”
(ii) In making this determination, a court will determine whether the situation presents the same inherently coercive pressures as a station house questioning.
- The more the setting resembles a traditional arrest (i.e. the more constrained the suspect feels) the more likely the court will consider it to be custody

Question 88

Interrogation pertaining to miranda doctrine: Define interrogation.

Answer 88

Under the Fifth Amendment Miranda doctrine, interrogation is defined as any words or conduct by the police where they knew or should have known that they might illicit an incriminating response from the suspect. Interrogation is more than asking Q’s
- Two way this concept can show up on an essay/MBE question:
› (1) The facts will likely have the police ask the D three questions; “Hey how’s the weather,” “do you like sushi,” and “where did you hid the bodies?”
› On an essay your answer should specifically point out what triggered the interrogation element of Miranda.
› Example Answer - Here, the question “where did you hid the dead bodies” is what triggered the interrogation element of Miranda because that is a question by the police where they knew or should have known would likely elicit an incriminating response from the D.
› (2) The facts have someone give an incriminating response but no interrogation is in play. Facts will say –there’s a police officer walking down the street and he stops a person to ask for directions to the nearest donut shop and the person responds to the officer by saying “I’m just selling pot to pay for law school”
› Under these facts the by responding with “I’m just selling pot to pay for law school” the person gave a incriminating response. However, there is no interrogation in play that would trigger Miranda b/c the question “where the donut shop” is not one where the police knew or should have known would elicit an incriminating response from the person.

Question 89

After receiving Miranda Warnings, a defendant can do what?

Answer 89

After receiving Miranda Warnings a D has four options:

(i) Do nothing
(ii) Waive his Miranda rights
(iii) Invoke the right to remain silent
(iv) Invoke the right to consult with an attorney

Question 90

Cop comes to knock at door & individual opens the door & after seeing the cop, states, “I know you are here to talk about the stolen car in the back, but…” Although the cops were not there to talk about the car, but to raise money; now the cops can inquire about the car, must they give miranda rights?

Answer 90

Miranda warnings are not required prior to the admissibility of what’s known as a spontaneous statement
Although the cops were not there to talk about the car, but to raise money; now the cops can inquire about the car since the statement was a spontaneous one & D cannot state that his Miranda warnings were not provided by the cop as a defense.

Question 91

If D does not respond at all to Miranda Warnings …

Answer 91

If D does not respond at all to Miranda Warnings

(i) The court will not presume a wavier
(ii) The court will not presume D invoked his right to remain silent or consult an attorney
- Thus, The Police may continue to question the D

Question 92

How do you waive miranda rights? What is the standard?

Answer 92

a. To be valid the government must show by a preponderance of the evidence that the Miranda waiver was knowing & voluntary.
b. Courts will employ a totality of the circumstances test in making this determination

Question 93

Invoking your Miranda Rights

Answer 93

Invoking the Right to Remain Silent

(i) Invoking the right to silence must be explicit, unambiguous and unequivocal
(ii) Police may reinitiate questioning after D has invoked the right to silence if:
- They wait a significant amount of time
- D is re-mirandized; AND
- The questions are limited to a crime that was not the subject of the earlier questioning.

Invoking the Right to Counsel under the 5th amendment
(i) The request for counsel can be invoked only by an unambiguous request
(ii) If the accused invokes his right to counsel, all questions must cease until D is given an attorney UNLESS:
- D then waives his right to counsel (by reinitiating questioning) OR
- Is released from the custodial interrogation and 14 days have passed since the release.
› i.e. if there is a break in “custody” (e.g., being released into the general prison population), the police can come back & ask D to waive his Miranda rights after 14 days.

Question 94

Invoking your right to counsel

Answer 94

Invoking the Right to Counsel under the 5th amendment
(i) The request for counsel can be invoked only by an unambiguous request
(ii) If the accused invokes his right to counsel, all questions must cease until D is given an attorney UNLESS:
- D then waives his right to counsel (by reinitiating questioning) OR
- Is released from the custodial interrogation and 14 days have passed since the release.
› i.e. if there is a break in “custody” (e.g., being released into the general prison population), the police can come back & ask D to waive his Miranda rights after 14 days.

Question 95

Invoking your right to remain silent

Answer 95

Invoking the Right to Remain Silent

(i) Invoking the right to silence must be explicit, unambiguous and unequivocal
(ii) Police may reinitiate questioning after D has invoked the right to silence if:
- They wait a significant amount of time
- D is re-mirandized; AND
- The questions are limited to a crime that was not the subject of the earlier questioning.

Question 96

What, if any, are the effects of a miranda violation for the defendant?

Answer 96

a. Generally, evidence obtained in violation of Miranda is inadmissible at trial under the exclusionary rule
b. Statement/confession obtained in violation of Miranda may be used to impeach the D’s trial testimony but may not be used as evidence of guilt.
c. Subsequent confession will be inadmissible if the question first warn later nature of the questioning was intentional.

8. Public safety exception - S.C has allowed interrogations w/o Miranda warnings where it was reasonably prompted by a concern for public safety (e.g. to locate a hidden gun that could have caused injury to innocent persons)

Question 97

The 5th amendment (opposed to 6th amendment)

Answer 97

1. The Court-created 5th Amendment right to counsel arises when a suspect invokes his Miranda rights & requests an attorney
2. The Fifth Amendment Right to counsel is NOT offense specific & thus applies to the entire process of custodial police interrogation

Question 98

The sixth amendment apposed to fifth amendment

Answer 98

3. Conversely, the Sixth Amendment Right to Counsel IS offense specific, meaning counsel would only need to be present if the D were being asked questions about the specific case for which the D has retained counsel
4. But Note: In 2009 the Supreme Court held that when a D has not specifically requested counsel, & has merely been given appointed counsel (e.g., at a preliminary hearing), the police can come back & ask D to waive his Sixth Amendment right to counsel & talk to them about the crime for which he was charged (the crime for which he has that attorney) as long as its appointed counsel.