Pg 4

Question 1

Are technicalities like the signature of the issuer or the date on a warrant essential?

Answer 1

Yes, and if they are not present, then the warrant is invalid

Question 2

If a warrant insufficiently describes the property to be seized or searched, does that invalidate the warrant?

Answer 2

No

Question 3

If a police officer used the wrong warrant form, but told the judge about it, and the judge promised to correct it but then didn’t, would it be objectively reasonable for the cop’s mistake that the warrant authorized the search?

Answer 3

Yes

Question 4

What happens when there is a private search before the police get involved, such as FedEx employees opening a damaged box and finding cocaine, then repackaging it and calling the police?

Answer 4

If cops re-open the package and test for drugs, that is not a significant expansion of a private search, so a warrant is not necessary because the police didn’t learn anything new

Question 5

How do you determine if the good faith exception applies to the exclusionary rule?

Answer 5

Do an objective assessment of the police officer’s actions in light of the facts and circumstances that were known to them, and do not consider intent

Question 6

If a police officer doesn’t think he has grounds for a warrant, but it ends up being that he does, is suppression necessary?

Answer 6

No

Question 7

Can police officers pull over people on the pretext of a traffic infraction in order to find drugs?

Answer 7

Yes, their subjective intent is irrelevant since there was probable cause. This is proper if a reasonable officer in the same circumstances would’ve stopped the car for suspected traffic violations

Question 8

If a court clerk made a clerical error with regard to a warrant and the police arrested someone, would the exclusionary rule apply?

Answer 8

No, because the police officer acted reasonably in relying on the computer record and the rule is not meant to deter court clerks since they have no stake in criminal prosecution. The same is true for police clerk errors

Question 9

In order for the exclusionary rule to apply, what is the key?

Answer 9

That there have been police misconduct. The rule is not meant to deter magistrates or clerks etc.

Question 10

If a police officer wrote the description of the place to be searched accidentally in the place on the warrant where you’re supposed to write the things to be seized, but no one noticed and the police collected the evidence, would the exclusionary rule apply?

Answer 10

Likely yes, because no reasonable cop could believe a warrant that plainly didn’t comply with the requirements to be valid

Question 11

What does it mean that state action is necessary for the exclusionary rule to apply?

Answer 11

Rule is meant to restrain government agencies, not private conduct. If no official is involved, there can be no exclusion. But the rule can apply when a private person acts as an instrument or agent of the government.

Question 12

What are things to consider if you’re trying to apply the exclusionary rule to a private person that was acting as an instrument or agent of the government?

Answer 12

Motive, compensation from the government, advice or participation of the government, joint endeavor, official’s tacit approval or ordering of the behavior, etc. If the person was sufficiently influenced or supported by the state, the rule applies to any evidence gotten by that private actor

Question 13

If a private person acted in direct contravention of police instructions, can the exclusionary rule apply?

Answer 13

No, because that was private behavior.

Question 14

If a private person finds something illegal such as child pornography and delivers it to the police, who then watch it, did a government search happen?

Answer 14

Yes, when they watched it because that exceeded the scope of the private search. If the private search resulted in plain-view and the cops just saw it was already exposed, then no.

Question 15

If a private party finds something illegal and then repackages it and gives it to police officers, is it OK for the officers to open it again?

Answer 15

Yes, as long as their search doesn’t reveal anything that wasn’t already learned in the private search, it is not considered to be a search.

Question 16

Why can courts usually admit things that are found by store detectives or private investigators?

Answer 16

Because they do not work for the government

Question 17

Can evidence that was suppressed at trial be considered at sentencing?

Answer 17

Yes, because the idea is that the judge needs unfettered access information.

Question 18

What is an exception to the rule that evidence that is suppressed at trial can be considered at sentencing?

Answer 18

If police create a dossier specifically for the sentencing judge, or they get enough evidence to convict and then seize more unlawfully in order to affect the sentence.

Question 19

What is the fruit of the poisonous tree doctrine?

Answer 19

Evidence [fruit] resulting from illegal searches, seizures, or constitutional violations [poisonous tree] is presumptively inadmissible because the poisons in the first violation affect the admissibility of the ultimate fruit, so if police violate the fourth, fifth, sixth, or get an involuntary confession [Miranda], they can’t use the immediate result of that violation for any other evidence gotten from it.

Question 20

How does the exclusionary rule relate to fruit of the poisonous tree?

Answer 20

When the government engages in unconstitutional behaviour during a search or seizure [poisonous tree], direct evidence [fruit] of that illegality is inadmissible.

Question 21

Can the government use information that they got from an unlawful search in order to subpoena from the victims the very documents that were illegally viewed?

Answer 21

No, because of the fruit of the poisonous tree doctrine. This means that any knowledge gained from the government’s own wrong cannot be used against the defendant

Question 22

Does the fruit of the poisonous tree doctrine only exclude direct evidence from the illegality?

Answer 22

No, it also excludes secondary or derivative evidence

Question 23

What is the question to ask if you are trying to apply the fruit of the poisonous tree doctrine?

Answer 23

Whether, granting establishment of the primary illegality, the evidence came by exploitation of that illegality, or some other distinguishable way that would purge the primary taint

Question 24

What are the two different types of fruit of the poisonous tree?

Answer 24

– direct or primary evidence

– secondary or derivative evidence

Question 25

What is involved in direct or primary evidence with relation to fruit of the poisonous tree doctrine?

Answer 25

What is gleaned from unconstitutional behavior. Direct relationship to the prior arrest, search, interrogation, lineup, or other identification procedures

Question 26

What is involved in secondary or derivative evidence with relation to fruit of the poisonous tree doctrine?

Answer 26

What is gleaned from direct evidence. It must be determined if this evidence is tainted and therefore fruit of the poisonous tree.

Ie: confession after illegal arrest, evidence found after illegal confession, or in court identification after illegal pretrial identification

Question 27

What is the poisonous tree with relation to the fruit of the poisonous tree doctrine?

Answer 27

It is the initial illegal conduct. This could be the search, arrest, interrogation, or identification

Question 28

Is all evidence considered to be fruit of the poisonous tree just because it wouldn’t have come to light “but for“ the illegal actions of the police officers?

Answer 28

No. I.e.: a confession is not tainted by the defendant’s illegal arrest if he gave it after being released and then voluntarily returned to the station, even though it wouldn’t have ever been gotten “but for“ the illegal arrest

Question 29

If a police officer illegally arrested a D for dealing drugs and during the SITLA found a paper with customer’s names on it, and some of the customers are contacted and they agree to testify against the defendant:
- what is the poisonous tree?
– what is direct evidence of the tree?
– what is the secondary or derivative evidence?

Answer 29

– poisonous tree: illegal arrest
– direct evidence: paper with names
– secondary evidence: testimony of customers (gleaned from direct evidence)

Question 30

What are the three elements that are required in order for an in court identification of a person to be made?

Answer 30

– V must be present to testify about what happened and to identify the culprit
– V needs knowledge and the ability to reconstruct the crime
– D must be physically present so that the victim can watch him and compare his appearance to the offender’s

Question 31

What is a deliberate two-stage interrogation?

Answer 31

When police question first and get a warrant later. This involves police questioning the defendant and intentionally withholding Miranda warnings, then the defendant makes an incriminating statement, then the police give the Miranda, and have the defendant repeat the incriminating statement for the record. This is forbidden

Question 32

If a defendant makes an incriminating statement without a Miranda warning and then later makes it again after being warned, but the police weren’t initially seeking that statement, what is the four factor approach that goes into it?

Answer 32

• ask if pre-warning questions or answers were complete and detailed? If the questioning wasn’t express and the defendant didn’t provide a lot of detail, that falls in the favour of the government
  – the degree that the pre and post warning statements overlapped
  – the timing and setting of two rounds of questions
  – the continuity of the two rounds of questioning

Question 33

If a defendant makes an incriminating statement without a Miranda warning and then later makes a second confession with the same incriminating statement after being warned, what is important in order for the second confession to be valid?

Answer 33

It must have been made knowingly and voluntarily.

Question 34

What is the difference between a legal two step approach to confession and an illegal one?

Answer 34

• legal: the second confession was not gotten deliberately. This usually involves different police on different days in different locations questioning the suspect. If the first confession was due to a good faith mistake and a significant lapse of time happened between the first and second confessions, that’s probably OK
• illegal: you have to ask if the second statement was voluntarily made, considering the surrounding circumstances and the entire course of police conduct toward the suspect.