Criminal Law/Crim Pro

Homicide has 2 Types

1. Murder
2. Manslaughter

Murder

The unlawful killing of another human with malice aforethought.

4 Ways to Commit Murder

(malice aforethought)

1. Intent to kill
2. Intent to inflict serious bodily harm
3. Felony murder
4. Depraved heart murder

Felony Murder

A killing caused during the attempt or commission of a felony.

• Intent required - the intent necessary to commit the underlying felony.

Dangerous Underlying Felonies

mnemonic - BARRK

Burglary
Arson
Rape
Robbery
Kidnapping

Limitations on liability for Felony Murder

• Defendant must be guilty of the underlying felony.

  • valid defenses to the underlying felony are also defenses to felony murder

• The underlying felony itself must be independent of a killing.

• Victim’s death must be a foreseeable result (proximate cause) of the felony

• Victim’s death must be caused before Defendant reaches a place of temporary safety.

• Defendant is not liable for the death of a co-felon killed by the police or the original victim in majority of states.

If the police kill the co-felon, or a potential victim kills the co-felon, YOU ARE NOT LIABLE for the loss of their life.

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If the police or a victim kills an innocent party on accident during a BARRK felony, there are 2 different approaches:

• 1) In jurisdictions which follow the proximate cause rule - you WILL BE GUILTY if an innocent party kills another innocent party by accident in the course of your BARRK felony because you set the killing into motion.

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• 2) In jurisdictions which follow the agency rule, you will not be guilty of felony murder because the police and bystanders were not agents of your felony or helping you in any way.

Depraved Heart Murder

A killing committed with reckless indifference to an unjustifiable risk of human life.

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E.g.:

• randomly firing a gun into a crowd or NEAR people or directly above someone’s head.

• Dropping a bowling ball off a highway overpass

• Selling anything with fentanyl

• Playing Russian roulette

Recklessness

Knew/should have known that a death could occur, and you acted anyway

• People present

2 Types of Manslaughter

1. Voluntary manslaughter
2. Involuntary manslaughter

Voluntary Manslaughter

A killing resulting from an adequate provocation (heat of passion) or imperfect self defense.

Voluntary Manslaughter - Heat of Passion

1. Provocation would cause sudden and intense passion in an ordinary person, causing him to lose self-control,

2. Defendant was provoked,

3. There was insufficient time for an ordinary person to cool off btwn provocation and killing,

4. Defendant did not cool off btwn provocation and killing.

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Adequate provocation is not a defense to murder.

• But it can be a mitigating factor that reduces a murder charge to voluntary manslaughter.

Voluntary Manslaughter - Imperfect self-defense

If Defendant murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either:

1. Defendant initiated the altercation that required self-defense, or

2. Defendant unreasonably believed deadly force was necessary.

Involuntary Manslaughter

A killing committed with criminal negligence or during the commission of an unlawful act not constituting felony murder.

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Criminal negligence - the conduct was grossly negligent.

• Meaning → Defendant fails to be aware of a substantial and unjustifiable risk, and this failure constitutes a gross deviation from the standard of care that a reasonable person would observe in the same situation.

  • Unawareness of a risk is not a defense when a reasonable person would have been aware.

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Commission of an unlawful act -

• Misdemeanors - a killing resulting from a misdemeanor will give rise to involuntary manslaughter if either:

  • a) act was inherently wrongful, or

  • b) death was foreseeable or natural consequence of the misdemeanor act.

• Felonies - any killing caused during the commission of a felony not giving rise to felony murder will be at least involuntary manslaughter.

Larceny

The taking and carrying away tangible personal property of another without consent AND with the intent to permanently dispossess the person of the property.

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Requirement

(1) Taking - obtaining control or possession

• if Def has possession at the time of taking, it’s not larceny (maybe embezzlement)

(2) Carrying away - the slightest movement will satisfy

(3) Without consent

• this element distinguishes larceny from larceny by trick

(4) Intent to permanently dispossess - must exist during taking

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• Larceny merges into robbery

• Finding a lost item - larceny can arise if the true owner is known or ascertainable and Defendant decides to keep the property (must be lost or misplaced; larceny cannot arise for abandoned property)

Burglary

Trespassory breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony therein.

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Elements

(1) Breaking - must be trespassory

• actual - opening or enlarging

• constructive - entry by threat, force, fraud or duress

  • fraud negates any consent victim may have given.

• breaking not required under many modern statutes

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(2) Entering - placing any portion of the body or the instrument used for the breaking inside the dwelling

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(3) Of another - ownership is irrelevant; occupancy will suffice

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(4) At nighttime - common law requirement

• not requirement under modern statutes

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(5) With the intent to commit a felony therein

• modern statutes include misdemeanor thefts

• felony need not be completed; def must merely intend to commit a crime at the time of the breaking and entering

• intent acquired after entering is insufficient

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Apply modern rules unless otherwise instructed

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Robbery

Wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent to permanently deprive.

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Robbery = assault or battery + larceny

• A small force or threat will suffice

  • threat of injury to victim, a member of her family or a person in her presence.

  • victim must be aware = must give up property because she feels threatened or harmed

  • threats of future harm are insufficient

Assault

There are two types in common law -

(1) Assault as a threat - general intent crime

• Intentional creation of victim’s reasonable apprehension of imminent bodily harm.

• Words alone are insufficient.

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(2) Assault as an attempted battery - specific intent

• specific intent crime because it involves attempt.

Battery

An unlawful application of force to the person of another resulting in bodily injury or offensive touching.

• ex: completed assault

• general intent crime

Larceny by Trick

Obtaining POSSESSION of another’s personal property using false statements of past or existing fact.

False Pretenses

Obtaining TITLE to another’s property using false statements of past or existing fact, with intent to defraud.

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Requirements

1. Obtaining title - obtaining ownership, not mere possession

2. By false statements - must be an intentional false statement

3. Of past or existing fact - misrepresentation regarding a future event is not sufficient

4. Intent to defraud - intent to steal

• Victim must be deceived or act in reliance on false statement

Embezzlement

Fraudulent conversion of another’s personal property by one in lawful possession.

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Requirement

1. Fraudulent conversion - Def uses another’s property beyond the scope of, or inconsistent with, Def’s possessory rights.

2. By one in lawful possession - Def must have lawful possession AT THE TIME of conversion.

Embezzlement - special issues refuting embezzlement

Intent to Restore - if Defendant takes property with the intent to restore the exact property, no embezzlement has occurred.

• must be the exact same property; not even different.

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Claim of Right - like larceny, embezzlement will not arise if the misappropriation is made under a claim of right to the property (ie, Def believes the property belongs to him)

Examples of Embezzlement

1. Bank teller taking cash → A Bank teller is authorized to handle cash deposits. Over a few weeks, she starts taking $100 from customer’s deposits and pocketing it.

2. Car Valet joyride → A valet is given a car to park. Instead, he drives it around for personal errands for several hours before returning it undamaged.

   1. IF he only moved for a few feet, it may not rise to conversion.

3. Warehouse clerk sells inventory → A warehouse clerk, authorized to move and track items, secretly removes company laptops and sells them on eBay.

Not Embezzlement

1. Janitor steals from a desk drawer → a janitor, who is only authorized to clean, finds an envelope of cash in a desk and pockets it.

   1. This is larceny, not embezzlement, because he did not have lawful possession of the money - only access to the area.

Extortion

Obtaining property through threats of future harm or exposing information.

• Does not require a taking from the victim’s person or presence

Receiving Stolen Property

Receiving possession and control of personal property known to have been illegally obtained, with the intent to permanently deprive the owner of her interest in it.

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Elements:

(1) Receipt of possession and control

• physical possession not required - Def can have possession or control by designating the property’s location or arranging to sell it for the original thief.

(2) Of stolen personal property

• property must have been stolen when Def receives it

(3) Known to have been illegally obtained by another

• D must know or have reason to know property is stolen

(4) With intent to permanently deprive the owner of his interest

NO COPS INVOLVED

Forgery

Creating or altering a written document with purported legal significance to be false, with the intent to defraud.

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Elements

(1) Creating or altering

• eg: drafting, adding, or deleting from a document’s contents.

• includes offering a forged document as genuine even if Defendant did not create the forged document.

(2) A document with purported legal significance

• eg: check or contract; not a painting

(3) To be false

• modifying the document into something it’s not; changing its legal significance, not just changing it to be inaccurate.

(4) With intent to defraud

• specific intent crime

• actually defrauding somebody is not required; the mere intent to defraud is sufficient.

Accomplice Liability

To be liable as an accomplice, one must:

1. Aid, counsel, or encourage principal before or during the crime,

2. With intent (a) to assist the principal AND (b) that the principal commit the crime.

Accomplice Liability - Scope of Liability

Accomplice is guilty for the crimes he committed or counseled, and any other probable or foreseeable crimes committed.

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• If the crime isn't completed, ONLY guilty of accomplice liability.

• The principal does not even have to know the accomplice is helping for the accomplice to be liable.

• Passively filming or standing around and silently approving it is not enough, you need to do something active.

Accomplice Liability - Defenses and Exceptions

Accomplice liability does not apply where:

• Withdrawal - accomplice can avoid liability by withdrawing from a crime before the principal commits it; accomplice must:

  • 1. Repudiate prior aid or encouragement;

  • 2. Do all that is possible to counteract the prior aid; and

  • 3. Do so before the chain of events is in motion and unstoppable.

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• Member of a protected class - those protected by a criminal statute are not liable as accomplices.

  • Eg: in a statutory rape case, the underage participate is not an accomplice (even if they encouraged or consented the act) bc the law is designed to protect minors.

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• Parties not provided for in the statute

Accessory BEFORE the Fact

NOT present at scene of crime.

But the person assisted, helped or instructed the principal to commit the crime beforehand.

• The accessory before the fact is guilty to the same extent as the perpetrator.

Accessory AFTER the Fact

Different than accomplice liability

Involves helping a known felon escape arrest, trial or conviction.

• Gives rise to a separate lesser charge of obstruction of justice

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1. Felony completed
2. Knowledge of completed crime
3. Aid to avoid arrest/conviction

General Intent Crime Definition

1. NO specific intent required
2. The ACT itself is enough

Arson

The malicious burning of the dwelling house of another.

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Elements

(1) Malicious - with intent or extreme recklessness

(2) Burning - requires some damage to structure caused by fire

• damage from smoke, water or explosions is not sufficient at common law

(3) Dwelling house - structure where someone lives

• common law requirement

• on mbe - it can be non-residential structure

(4) Of another - another person’s house

• at common law, there can be no arson if you own the dwelling but do not reside there

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Damages required

• must be charring or something more

• discoloration, blackening or lesser damage is not enough

Rape

Common Law - Unlawful sexual intercourse of a woman by a man other than her husband, without effective consent.

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Modern Statutes

• referred to as “sexual assault”

• the slightest penetration is sufficient to complete crime

• marital status insignificant

• Lack of Consent - consent will not be found if:

  • a) penetration is accomplished by force or threat of immediate bodily harm,

  • b) victim is incapable of consenting due to lack of capacity, or

  • c) victim is fraudulently caused to believe the act is not intercourse.

False Imprisonment

Unlawful confinement of a person without their consent.

• Consent cannot be obtained through coercion, threat, or deception.

• Can become kidnapping if the victim is moved and/or concealed.

Kidnapping

The unlawful confinement of a person that involves either:

1. Some movement of the victim, or

2. Concealment of the victim in an unknown, hidden, or secret location.

Inchoate Crimes

Inchoate crimes are crimes that are committed before (or are a substantial step towards) the main offense.

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CAtS

1. Conspiracy
2. Attempt
3. Solicitation

Conspiracy - Common Law

An agreement between two or more people to commit a crime or unlawful objective.

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Elements

1. An agreement between two or more people,

2. Intent to enter into agreement,

3. Intent to commit the target crime or pursue the unlawful objective,

4. An overt act in furtherance of the target crime (not a requirement at common law)

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• Common Law (default) - two or more ppl must have criminal intent.

  • Cops cannot be involved.

• MPC - allows only one party

Conspiracy - Merger

• Does NOT merge into the completed crime

• Guilty of BOTH conspiracy & underlying crime

Conspiracy - Withdrawal

Common Law - Cannot withdraw from conspiracy because it’s completed upon agreement.

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MPC - Allows withdrawal if the withdrawing party thwarts the conspiracy (eg: by stopping it or notifying the police).

• You can withdraw from the whole conspiracy before the preparation act takes place. However, the preparation act does not have to be big or dramatic.

  • It can be a mild little preparation act like making a phone call.

  • So almost nobody in real life withdraws from the conspiracy itself under this standard.

Co-Conspirator Liability

Every member of the conspiracy is liable for the acts of other members so long as they are:

1. foreseeable, and

2. in furtherance of the conspiracy.

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Subsequent Crimes

One can withdraw from co-conspirator’s subsequent crimes, including the target offense of the conspiracy.

• Withdrawing party must make an affirmative act that notifies his co-conspirators he is withdrawing.

• Must be timely - withdrawal must give enough time for co-conspirators to abandon plans for the target offense.

Attempt

An act, done with specific intent to commit a crime, that constitutes an overt or substantial step towards committing the crime but falls short of completing the crime.

• Overt Act - beyond mere preparation; Defendant must take a substantial step

  • Common Law - an act that’s dangerously close to success.

Attempt - Withdrawal

CANNOT withdraw or “abandon” a completed attempt.

Attempt - Transferred Intent examples

Ex - If Goat shoots at Rainbow Brown, intending to kill him, but only grazes Rainbow and the bullet flies past him and hits Kevin Tipcorn.

• Goat can be charged with attempted murder of Rainbow and murder of Kevin.

• Even tho Goat did not intend to kill Kevin, the intent from the attempted murder can be transferred to the murder itself.

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Ex 2 - Kevin Tipcorn is trying to poison his friend Kyle. Kevin puts poison into Kyle’s drink, and hide it in his friend’s fridge. Then he feels bad about it and takes it out and places it next to the trash. Chad, Kyle’s friend, sees it and drinks it in one huge gulp and dies.

• Kevin can be charged with attempted murder on Kyle, for taking a substantial step of trying to poison him.

• CANNOT be charged with attempted murder of Chad - because he never intended to kill Chad, only Kyle.

Attempt - Defenses

• Legal impossibility is a defense

• Factual impossibility is not a defense

• Abandonment is not a defense (majority rule)

Solicitation

Inciting, urging or asking another to commit a crime with the intent that they commit the crime.

Solicitation - Merges with the target offense

Solicitation is complete when Defendant asks solicitee to commit the felony.

• If solicitee agrees, it gives rise to conspiracy and the solicitation merges with the conspiracy.

Insanity

(capacity defenses)

Legal insanity is a defense to all crimes, regardless of the intent requirement.

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• Must prove by Clear and convincing evidence

• There are 4 tests:

  • M’Naghten

  • Irresistible Impulse

  • MPC

  • Durham

M’Naghten Test

(insanity defenses)

Defendant does not know right from wrong.

• Due to mental illness, at the time of the offense Defendant lacked the ability to know the wrongfulness of his conduct or understand the nature and quality of his act.

Irresistible Impulse

(insanity defenses)

Defendant acted due to an irresistible impulse.

• Due to a mental illness, Defendant was unable to control his actions or conform his conduct to the law.

MPC

(insanity defenses)

Combination of M’Naghten and Irresistible Impulse

• As a result of mental illness, Defendant lacked the capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

Durham

(insanity defenses)

But for his mental illness, Defendant would not have acted.

• Defendant’s conduct was the product of mental illness

Infancy, Diminished Capacity, and Mental Deficiency at Trial

(capacity defenses)

Infancy - a defense to criminal liability for minors

• under 7 yrs old - no criminal liability

• 7-14 yrs old - rebuttable presumption against criminal liability.

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Diminished Capacity

• available if Defendant can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime.

• Limited to specific intent crimes

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Due Process - Due Process Clause forbids Defendant from being tried, convicted or sentenced if, as a result of his mental illness, Defendant is unable to either:

1. understand the nature of the proceeding, or

2. Assist his lawyer in the preparation of his defense.

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Capital Punishment - Defendant cannot be executed if he is incapable of understanding the nature and purpose of the punishment at the time of execution.

Voluntary Intoxication

(capacity defenses)

Defendant chose to consume alcohol.

Defense to specific intent crimes only.

• Alcoholics and addicts are voluntarily intoxicated

• Not available if Def becomes intoxicated in order to commit the crime.

Involuntary Intoxication

(capacity defenses)

Arises when Defendant was given an intoxicant without her knowledge or forced to consume an intoxicant.

Defense to all crimes.

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Requirements - an intoxication is taken involuntarily if taken:

1. Without knowledge of its nature,

2. Under direct duress imposed by another person, or

3. Pursuant to medical advice without notice of its intoxicating effect.

General Intent Crimes

mnemonic - BRKFst

Battery

Rape

Kidnapping

False Imprisonment

Malice Crimes

1. Common law murder (w/ malice aforethought)

2. Arson

Strict Liability

1. Statutory rape

2. Regulatory crimes

3. Administrative crimes

4. Morality crimes

Mistake of Law

(misc. defenses)

• Almost never a defense

• Lacking awareness or knowledge that an act constitutes a crime, even if reasonable, is not a defense to that crime.

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Exception - very rare, but happens where either:

• a) reasonable reliance on an invalid statute, or

• b) mistake or ignorance negates an element of a crime requiring knowledge of the law.

Mistake of Fact

(misc. defenses)

Available as a defense only if it negates a requisite intent element (mens rea) for the crime.

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1. specific intent → any mistake of fact is a defense

2. malice and general intent → only a reasonable mistake of fact is a defense

3. strict liability → mistake of fact never a defense

Entrapment

(misc. defenses)

Available defense to criminal liability if a law enforcement agent has induced Defendant to commit a crime.

Requirement

1. Law enforcement creates criminal activity

2. Defendant was not predisposed to commit the crime.

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• Law enforcement providing an opportunity for a person to commit a crime is not, by itself, entrapment.

  • Eg - undercover officer buying drugs from a dealer; officer merely provided opportunity for Defendant to make a sale.

• Unlikely to be a correct answer - second element hard to prove.

Predisposition

Defendant has no prior experience or knowledge concerning the crime

Duress

(misc. defenses)

A valid defense to a crime Defendant committed under reasonable belief that the crime was necessary to prevent death or serious bodily harm to Defendant or a member of Defendant’s family.

Exception

• Duress is not a defense to any intentional homicide crimes.

Necessity

(misc. defenses)

A valid defense if Defendant believed his conduct was reasonably necessary to avoid an imminent and greater injury to society.

• objective standard (D’s commission of crime must be reasonably necessary; good faith alone is insufficient)

Exception

• Necessity is not available if either:

  • a) crime committed results in the death of another, or

  • b) Defendant caused the events giving rise to the necessity.

Consent

(misc. defenses)

Consent of victim is generally not a defense, but may be available if it negates an element of the offense.

• Never available for certain offenses

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Requirements - must be established that:

1. Consent was voluntarily and freely given,

2. Party was legally capable of consenting, and

3. No fraud was involved in obtaining consent.

Self-Defense

(justification defenses)

Non-deadly force - may be used if Defendant:

1. No fault (D is not at fault; not initial aggressor);

2. Reasonable belief of unlawful force (D reasonably believes it necessary to protect himself from imminent unlawful force)

• No duty to retreat

• Amount of force must be proportionate

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Deadly force - may be used if Defendant:

1. No fault;

2. Confronted with unlawful force; and

3. Reasonable belief of death or great bodily harm

• under majority rule, no duty to retreat

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Self-defense by an initial aggressor - available if either:

1. Initial aggressor effectively withdraws before the need for self-defense arises and communicates his desire to do so, or

2. Victim of the initial aggression suddenly escalates a minor dispute into a deadly altercation.

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Defense of others - same rues apply as for self-defense

Defendant can defend another if Def reasonably believes the person he is protecting could have legally defended himself.

Police use of force to effectuate arrest:

(justification defenses)

Non-Deadly Force - permissible to reasonably effectuate arrest.

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Deadly Force - permissible to:

1. Prevent the escape of fleeing felon; and

2. Fleeing felon poses a threat of death or serious bodily harm.

Citizen use of force to effectuate arrest:

(justification defenses)

Non-Deadly Force - permissible if:

1. Crime was actually committed; and

2. Reasonable belief the person to be arrested committed it.

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Deadly Force - permissible only if the person to be arrested was actually guilty of the offense for which the arrest was made and the deadly force was used to:

1. Prevent the escape of the fleeing felon; and

2. Fleeing felon poses a threat of death or serious bodily harm.

Crime Prevention - using force to prevent a crime from occurring

(justification defenses)

Non-Deadly Force - permissible to prevent a serious breach of the peace.

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Deadly Force -

Common Law - permissible to prevent commission of felony

Modern - permissible to:

1. Terminate or prevent a dangerous felony, and

2. Felony threatens a serious risk to human life.

Defense of Property - Defense of Dwelling

(justification defenses)

Non-Deadly Force - allowed to prevent or terminate an unlawful entry or attack on one’s dwelling

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Deadly Force - may be used if one reasonably believes:

• a) force is necessary to prevent attack on oneself or others by a person who made or attempted violent entry, or

• b) force is necessary to prevent entry by a person who intends to commit a felony in the dwelling.

Defense of Property (non-dwelling)

(justification defenses)

Deadly force not allowed !!!

Non-deadly force may be used if reasonably necessary to defend against unlawful interference with possessions or trespass on property.

The need to use force must reasonably appear imminent.

Recovery of Property

(justification defenses)

Force is not allowed to regain property wrongfully taken unless one is in immediate pursuit of the taker.

• Ex - D steals A’s purse; A can only use reasonable force to recover purse if she is immediately pursuing D.

Jurisdiction

You can be punished by both the state and federal government for the same act and this will not trigger double jeopardy

CRIMINAL PROCEDURE

CRIMINAL PROCEDURE

Arrests

(4th Amendment)

An arrest occurs when police take an individual into custody for purposes of criminal prosecution or interrogation.

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Probable cause is always required for any valid arrest.

• probable cause = trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is planning to commit a crime.

Arrests - Warrants

(4th Amendment)

Warrants are rarely required for arrests

• police generally do not need a warrant before arresting a person in a public place.

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Exception

• Non-emergency home arrests require a warrant and reasonable belief suspect is at home.

  • search warrant is required for police to execute an arrest of a suspect in a third party’s home.

Detention to obtain a search warrant

(4th Amendment)

• Requires probable cause.

• If police have probable cause to believe a suspect has contraband hidden in her home, they may prevent her from entering her home for a reasonable time while they obtain a search warrant.

  • Purpose must be to prevent destruction of evidence.

Detention of occupants of a premises

(4th Amendment)

If police have a valid warrant to search premises, they may detain occupants for duration of the proper search.

Automobile Stop

(4th Amendment)

• Reasonable suspicion required.

• To stop or pull over a vehicle, police must have reasonable suspicion that a law has been violated.

• Pretextual stops - ulterior motive for a stop is OK if police have probable cause of a traffic violation.

Accompanying searches

(4th Amendment)

Police may search:

• Passengers and passenger compartment (but not trunk) if officer reasonably believes weapons may be present.

  • police can order people out of the car.

• Entire car may be searched if probable cause arises pursuant to the automobile search exception.

• Automobile may also be search incident to a lawful arrest.

Government searches and seizures of evidence must be reasonable under the 4th Amendment, which requires a valid search warrant unless an exception applies.

(4th Amendment)

Determining the reasonableness of a search or seizure:

(1) Is there a government conduct constituting a search or seizure?

• 4th Amendment only applies to govt conduct (direct or authorized); does not protect against private conduct.

(2) Does Defendant have standing?

• Def must have a reasonable expectation of privacy in the thing or place to be searched.

(3) Is there a valid search warrant?

(4) If there is no valid search warrant, was there a valid exception to the search warrant?

Exceptions to the search warrant requirement

(4th Amendment)

1. Search incident to arrest

2. Plain view search

3. Automobile search

4. Valid consent to search

5. Exigent circumstances

6. Stop and frisk

Reasonable Expectation of Privacy

(4th Amendment)

4th Amendment only applies if a person has a reasonable expectation of privacy regarding the thing or place searched and/or the items seized.

• Standing to challenge a govt. search requires a REOP

• REOP is determined by a totality of the circumstances

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No REOP for inherently public things

• Eg: handwriting, voice, location, odors, public records, things viewable from public space, bank account records, smell of luggage.

• Areas outside the curtilage are unprotected by the 4th Amendment.

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Automatic standing - REOP always exists if Def either:

a) owns, has a right to possess, or lives in the premises to be searched, or

b) is an overnight guest of the premises to be searched

Open Fields Doctrine

Open areas with NO expectation of privacy
NOT a search

Requirements for a Valid Search Warrant

(4th Amendment)

Unless an exception applies, govt. must have a properly executed warrant to conduct a search.

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Requirements

(1) Based on probable cause

• usually a police affidavit demonstrating probable cause that the search or seizure will produce evidence.

• Affidavits - must contain facts showing probable cause.

  • may include info from anonymous sources

  • if (1) there was a false statement, (2) affiant intentionally or recklessly included a false statement, and (3) false statement was material to finding probable cause → warrant is invalid.

(2) Precise on its face

• warrant must describe, with reasonable precision, the place to be search and/or items to be seized.

(3) Issued by a neutral and detached magistrate

Requirements for a Valid Search Warrant - Good faith exception

(4th Amendment)

Exclusionary rule does not apply if police act in good faith on an invalid search warrant.

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Exceptions to good-faith reliance - police cannot rely on a defective warrant obtained in good faith if:

• a) affidavit completely lacks probable cause (ie: no reasonable police officer would have relied on it),

• b) warrant is defective on its face,

• c) police or govt. official lied or misled magistrate, or

• d) magistrate has “wholly abandoned her judicial role”

Execution of Search Warrants

(4th Amendment)

Timing

Search warrant must executed without unreasonable delay after it is issued.

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Knock and Announcement

Police must knock and announce their purpose, then wait a reasonable time for admittance before entering on their own accord.

• Exception - knock and announce is not required if officers have reasonable suspicion that announcing their presence would be dangerous, futile, or would inhibit the investigation.

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Scope of Search

Limited to what is reasonably necessary to discover items described in the warrant.

• Police can detain people found on the searched premises.

  • But police cannot search detained persons unless they are specifically named in the warrant or a valid warrantless search exception exists.

Illegal Search

Will NOT automatically dismiss indictment

Co-Occupant Consent

Two Situations:

1. When co-occupants with access to the WHOLE PLACE ARE NOT present, one occupant can allow a search of the whole space;

2. When co-occupants with access to the WHOLE PLACE ARE present and objecting, one objection can stop the whole search (Georgia v. Randolph)

Roommates

• Roommates do not have access to the WHOLE place.

• Limited access RESTRICTS consent to a search.

• You cannot authorize consent to search your ROOMMATE’S room, because you don’t have access to that.

Search Incident to Lawful Arrest

(valid warrantless searches)

Police may search a lawfully arrested person and his immediate surrounding area without a warrant.

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Requirements

1. Arrest must be lawful

2. Search must be contemporaneous with the arrest

3. Search must be limited to area within suspect’s reach of movement.

• can search open and closed spaces.

Protective Sweep

(valid warrantless searches)

Police may sweep an area for officer safety or with reasonable belief that accomplices may be present.

• Have to look in places where people would hide.

Inventory Search

(valid warrantless searches)

Police may search arrestee’s belongings or seized property when jailing an arrested suspect.

Automobiles

(SIA - valid warrantless searches)

After arresting occupant, police may search the vehicle’s interior, including glove box, if at the time of the search:

a) arrestee is unsecured and may access the vehicle interior, or

b) they reasonably believe evidence of the crime for which the arrest was made may be found in vehicle.

• police cannot search trunk without probable cause or consent

• Breathanalyzer - a warrantless breathalyzer test is valid following a lawful arrest based on probable cause of drunk driving.

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Limitation: cellphones - police may not search digital information on a phone seized during an arrest without a warrant.

Automobile Search Exception

(valid warrantless searches)

If probable cause exists, police may search an entire vehicle (including the trunk), and containers or compartments inside that may contain the evidence they are searching for.

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Requirements:

1. Police must have probable cause to search the vehicle, and

2. Probable cause must arise before the search begins.

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Scope of permissible search

• Police can search entire vehicle and all containers within the vehicle that might contain the object for which they are searching.

  • Eg: police may open packages or luggage that might contain evidence relating to the reason they searched the vehicle.

• Police may search passengers and their belongings.

Plain View Searches

(valid warrantless searches)

Police may search from any place where they are legitimately present when viewing.

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Seizure based on plain view

Police may seize evidence in plain view without a warrant if:

1. Police are legitimately on the premises from which they viewed the evidence to be seized;

2. Criminal activity or contraband is immediately apparent; and

3. Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime.

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Scope of plain view searches

Includes anything viewable from land or public property, even if only viewable through binoculars.

• Plain smell

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Limitations

Police cannot use technology not generally available to the public to view evidence that may constitute a plain view search (eg: infrared scanners that can view through walls)

• Note - use of drones for plain view searches is unsettled law and thus unlikely to appear on the MBE.

Consent to Search

(valid warrantless searches)

with valid consent, police may search anything.

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Requirements

(1) Voluntarily and intelligently made,

• police cannot falsely claim legal cause to search,

• police have no obligation to inform suspects that they have a right to refuse consent

(2) Person giving consent has authority to consent.

• authority to consent must be reasonably apparent

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Scope of Consent - can be limited by consenting party

• violation of scope renders the entire search non-consenting.

Consent to Search - Third Party Consent

(valid warrantless searches)

Allowed if there is authority to consent.

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• Where multiple people have property rights, any single one can consent to the search of any area where the have authority to consent.

• A resident’s right to consent trumps a non-resident.

  • Eg: if both a tenant and landlord are present, the tenant’s refusal trumps the landlord’s consent.

• Scope of consent is dictated by the person present with highest authority to consent.

• Refusal trumps consent - no consent if two people with equal right to possession disagree on consent.