MBE Criminal Procedure SLIDES

1/11/16
KAPLAN BAR REVIEW
Multistate Bar Exam
Criminal
Procedure
KAPLAN BAR REVIEW
Multistate Bar Exam Criminal Procedure
KAPLAN BAR REVIEW

Learning Objectives:
1. Apply an approach to criminal procedure that Identifies
the interests protected by the 4th, 5th and 6th
Amendments to the US Constitution, analyzes
government action for violation of constitutional rights,
accurately describes the action for redress and remedy,
and correctly predicts the outcome.
KAPLAN BAR REVIEW
2. Correctly apply the standards for probable cause,

reasonable suspicion, reasonable expectation of
privacy, totality of the circumstances, fruit of the
poisonous tree, and other constitutional tests to fact
patterns in criminal procedure.
3. Accurately differentiate arrests from stops and routine
preliminary or investigatory police encounters.
4. Demonstrate the ability to argue both sides of the

warrant standard, including exceptions to the warrant
requirement, such as consent, search incident to a
lawful arrest, plain view, hot pursuit, and the automobile
exception.
5. Explain how the remedy of the exclusionary rule is
applied, and use it to correctly determine questions of
admission of evidence in criminal cases.
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KAPLAN BAR REVIEW

6. State the correct basis for exclusion of testimonial
evidence, and correctly apply the Miranda rule and the
privilege against self-incrimination.
7. Determine when the right to counsel attaches, and
whether double jeopardy principles prevent re-trial of a
criminal defendant.
I. INTRODUCTION TO CRIMINAL PROCEDURE
A.Systems of Criminal Procedure

1.The Fourth, Fifth, and Sixth Amendments
a.The Fourth Amendment protects the people from
unreasonable searches and seizures, and requires
probable cause to support a warrant.
b.The Fifth Amendment prohibits coercion of
confessions, unreliable identifications, and provides a
privilege against compelled self-incrimination.
c. The Sixth Amendment provides a person formally

accused of a crime a right to assistance of counsel in all
critical stages of the adversarial process (trial,
preliminary hearing, police questioning, and physical
identification proceedings). The Sixth Amendment
includes the confrontation clause, which requires that
testimonial evidence be subjected to adversarial testing.
2. Federal and State System

a. Our focus is the United States Constitution. These rights
are incorporated to the states through the due process
clause of the 14th Amendment. They provide a baseline
of procedural protections that the state may not deprive.
However, states are always permitted to provide
additional procedural protections to suspect and
defendants.
EXAM TIP: a state statute that grants police authority to
engage in conduct that violates the federal constitutional
standard is invalid (like a statute authorizing no-knock
warrant execution for an entire category of crimes).
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B. Approach to a Criminal Procedure Question

1.Was there government action?
2.If so, did it trigger a constitutional right (for example,
was it a search or seizure, or was the suspect
subjected to custodial interrogation)?
3.If so, did the government violate the constitutional
right (for example, was the search or seizure
unreasonable, or did the police violate the Miranda
rule)?
4.If so, is YOUR defendant entitled to the remedy of
exclusion?
II. THE FOURTH AMENDMENT
B. Seizure. The Fourth Amendments

reasonableness requirement is triggered by any
government seizure of a person or property
1. Seizure of Persons
a.
A person is seized when, as the result of
government action a reasonable person in his
position would not feel free to leave or otherwise
terminate the police encounter.
(1) Not all police encounters are seizures. If a
reasonable person would feel free to leave or
terminate the encounter, there is no seizure, and
the Fourth Amendment is not triggered.
A. Government Action
1. The Fourth Amendment applies only to government,
not private, conduct.
a.
Silver Platter Doctrine: When a private party
acting on his own acquires evidence that the
government later seeks to introduce in a criminal
prosecution, it does not trigger the Fourth
Amendment.
b.
However, when a private party acts at the
direction of a government agent or pursuant to an
official policy, any search or seizure is subject to
Fourth Amendment scrutiny (must be reasonable).
(2) A seizure occurs when the police use physical

force to restrain a suspect, or when they make a
show of authority followed by submission. If a
suspect is located in a naturally confined location
(like a bus), the test is whether a reasonable person
would feel free to terminate the encounter with
police.
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b. Arrest is a maximum seizure, indicated by police

action that initiates the criminal prosecution process
(taking the suspect to jail).
EXAM TIP: All arrests are seizures, but not all seizures
are arrests. The difference is indicated by purpose
and duration.
(3) A Terry Stop is not the initiation of criminal action, it

is for the sole purpose of investigating a reasonable
suspicion crime is or has occurred.
(4) The permissible duration of a Terry Stop is the
time necessary to confirm or deny the suspicion:
(a) If confirmed, the suspicion blossoms into
probable cause, justifying arrest.
(b) If denied, the seizure must terminate.
c. Terry Stop. A euphemism for a non-arrest seizure.

Between a routine police encounter and arrest is a
Terry Stop:
(1) A Terry Stop is a brief investigatory seizure
because police require the suspect to interact with
them, therefore triggering the Fourth Amendment.
(2) The difference between a Terry Stop and an
Arrest is duration and purpose.
2. Seizure of Property. Property is seized when police

take some action that results in a meaningful
interference with a possessory interest.
a. If police take control of property, it is seized.
b. If police place something on the property (like a
beeper) that does not interfere with the owners use
of the property, it is not seized.
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C. Search. A search triggers the reasonableness

requirement of the Fourth Amendment, and is defined as
any government (1) Investigatory trespass against a
textual Fourth Amendment interest (person, home, papers,
or effects), OR (2) Intrusion into a reasonable expectation
of privacy (REP).
EXAM TIP: Looking for something is not always a search.
A search is defined by where the police look or how they
get to a certain place. Only when police engage in an
investigatory trespass against a Fourth Amendment
protection, OR look into or enter upon a REP, will it
qualify as a search for purposes of the Fourth Amendment.
EXAM TIP: Remember, just getting to a place may qualify

as a search, for example entering upon the curtilage of the
home to utilize a narcotics detection dog, entering into a
home to seize an item of contraband observed from the
street, or physically touching an automobile in order to
emplace a GPS tracking device.
Example: A police officer walks up on front porch of the
suspects home to look for evidence of drug possession
through the open window. This is a search, because it is a
trespass onto the curtilage with an investigatory motive.
However, had the officer observed the evidence through
the open window from the sidewalk, without any trespass, it
would not qualify as a search.
1. Investigatory trespass. Any government activity that

intrudes upon the targets person, home (to include
the curtilage), papers, or effects for the purpose of
finding or gathering evidence of a crime qualifies as a
search within the meaning of the Fourth Amendment
(Jones, Jardines):
a. For purposes of an investigatory trespass, the
home includes areas within the curtilage, but NOT
areas in open fields, even if the police trespass into
those areas.
b. The trespass qualifies as a Fourth Amendment
search only if the police do so with an investigatory
motive.
2. Reasonable Expectation of Privacy. A person may

assert his Fourth Amendment rights only when the
government intrudes on a reasonable expectation of
privacy, which requires that:
a.
The defendant manifests a subjective
expectation of privacy by making an effort to shield
the thing or the activity from the public, and
b.
The expectation is objectively reasonable
because it is an expectation society is willing to
recognize.
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EXAM TIP: A person does not have a REP in something

she knowingly exposes to the public. This is a useful test
for determining whether the police intruded upon a REP: if
the thing the police discover has been exposed to the
public, it was not within a REP and finding it did not involve
a search, unless police engaged in an investigatory
trespass to find it.
Example 1: A person in a closed telephone booth does

have an actual (subjective) and reasonable (objective)
expectation of privacy in the content of his conversation. By
closing the phone booth door, the person manifests an
effort to shield the sound of his voice from the public, and
because he has not exposed the content of his
conversation to the public, this expectation is one society
recognizes as objectively reasonable. Accordingly,
attachment of electronic eavesdropping devices on the
exterior of the phone booth constitutes an impermissible
search because it is a government intrusion on the REP
[Katz v. United States, 389 U.S. 347 (1967)].
Example 2: A police officer standing on the toilet in a

public bathroom stall in order to look over the divider to see
what a suspect is doing in the adjacent stall qualifies as a
search because the conduct intrudes upon a reasonable
expectation of privacy, even though the suspect has no
property interest in the bathroom stall.
c. There is no reasonable expectation of privacy when the

objects to be seized are held out to the public.
Example: In the telephone booth example above, had the
police used a lip reader to watch the persons lips through
the glass windows of the phone booth and writing down
what he said, this would not be a search because when the
person spoke in a glass phone booth he knowingly
exposed the movement of his lips to the public.
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d. Police use of animals trained to detect only contraband

does not qualify as a search (unless the police commit
an investigatory trespass to get the animal to the location
of detection).
Example: If police use a dog trained to detect the scent of

marijuana to sniff a briefcase in bus station, this is not a
search because what the dog smells has escaped from
inside the briefcase into the open air. However, if police use
a device that allows them to see through the exterior of
the briefcase, this is a search because the contents of the
briefcase were not exposed to the public.
Use of commonly available equipment to enhance the

animals natural senses of sight, hearing, or smell does not
transform their observations into a search so long as the
unenhanced observation would not have qualified as a
search.
e. A defendant does not have a reasonable expectation of

privacy in the following items because all of them have
been knowingly exposed to the public:
(1) handwriting exemplars [United States v. Mara, 410
U.S. 19 (1973)];
(2) voice exemplars [United States v. Dionisio, 410 U.S.
1 (1973)];
(3) bank records [United States v. Miller, 425 U.S. 435
(1976)];
(4) pen registers, which record telephone numbers
dialed [Smith v. Maryland, 442 U.S. 735 (1979)];
(5) header information on an email sent through an ISP
(but the contents of the email are within a REP);
(6) conversations the suspect believes are private the

police record with the consent of the other party to the
conversation (a false friend) [Hoffa v. United States, 385
U.S. 293 (1966)].
EXAM TIP: When a person exposes something to another
person, they assume the risk that the other person will
expose it to the police, and if this happens it is not a
search.
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(7) Open fields: unoccupied areas beyond the curtilage of

the home, even if police trespass into the open fields.
(8) Naked-eye observations of private property by air so
long as police comply with flight limitations [California v.
Ciralo, 476 U.S. 207 (1986)].
(9) Ariel photography of the large fenced in area around an
industrial complex.
(10) Discarded property, such as commingled garbage and
abandoned rental premises.
3. When the government uses a device that is not in

general public use enabling them to see through the
walls of a home, this is a search because it intrudes
upon a REP [Kyllo v. United States, 533 U.S. 27
(2001)].
D. Complying with the Fourth Amendment.

1. A search or seizure: must be reasonable in order to
comply with the Fourth Amendment.
a.If police obtain a warrant to conduct the search or
seizure, it creates a presumption of reasonableness.
To challenge the search or seizure, the defendant
bears the burden of rebutting this presumption by
proving:
(1)The warrant: was not based on valid probable
cause, or
(2)The magistrate: was not neutral and detached, or
(3)The warrant failed to describe with particularity
the thing to be seized or the place to be searched.
EXAM TIP: Even if a warrant is determined invalid, the

evidence may still be admissible pursuant to the good faith
exception to the exclusionary rule. Exclusion requires the
additional determination that police acted unreasonably
when they relied on the warrant.
b. Because a search or seizure without a warrant is
presumptively unreasonable, the government bears the
burden of proving the search or seizure fell within an
established exception to the warrant requirement.
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2. The Procedural Component: Warrants based on

Police Action.
a.A valid warrant to search or seize must be
issued by a neutral and detached magistrate,
based on probable cause, and describe with
particularity the thing to be seized or the place
to be searched.
(1)The information (affidavit) presented to the
magistrate must provide relevant facts that
lead to the conclusion that it is more
probable than not (a fair probability) that a
person committed a crime or evidence will
be found in a particular location.
EXAMPLE: It is unreasonable to require the removal of a

bullet from an individual suspected of robbery when the
bullet is deeply embedded in the body, removal would
damage the body, and the removal would require general
anesthesia.
(2) The information presented to the magistrate must

not be stale.
b. Warrant Execution: In rare cases, the method of warrant
execution may render the police action unreasonable, it if
shocks the conscience.
c. Knock and Announce Rule.

(1) Police must normally: knock and announce
their identity before entering a home to execute a
warrant.
(2) Knock and announce is not required if: police
have reasonable suspicion to believe that doing so
will endanger officers or lead to the destruction of
evidence or flight of the suspect
(3) The violation of the knock and announce rule
violates the Fourth Amendment, but does not
trigger the exclusionary rule.
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EXAM TIP: Any search or seizure without a warrant is

presumptively unreasonable, but will be deemed
reasonable if it falls within an established exception to the
warrant and/or probable cause requirement.
(1) First ask whether there was a search or seizure, if so

(2) Ask whether there was a valid warrant:
(a) If so, look for facts that indicate the warrant was
defective and the police acted in bad faith when they
relied on it;
(b) If not, then consider whether an exception
applies
(3) Does the search or seizure fall into one of the
established exceptions covered below:
(a) If so, the search or seizure is reasonable;
(b) If not, the search or seizure is unreasonable.
3. The Substantive Component of Reasonableness: In

many cases, the reasonableness of a search or seizure
will require police to establish individualized suspicion
that amounts to either Probable Cause and Reasonable
Suspicion.
EXAM TIPS:
Probable cause is always required to engage in a full-scale
intrusion: a search to find evidence or an arrest.
The lower standard of Reasonable Suspicion will justify
lower level intrusions: a brief investigatory seizure or a
protective cursory search.
a. Probable Cause is fair probability defined as

facts and circumstances that would warrant a
reasonable person to conclude that the individual in
question has committed a crime (for an arrest) or that
specific items related to criminal activity can be found at
a particular location (for a search).
(1)Probable cause is an objective standard
that focuses on facts and circumstances.
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EXAM TIP: Even if the police officer acts based on an

improper motive, for example she arrests someone not
because she is interested in the actual offense, but
because she just wants the opportunity to search for
something she has a hunch she might find, the
reasonableness will be assessed objectively: so long as
PC to supported the arrest, it will be considered
reasonable. [Whren v. U.S., 517 U.S. 806, 813 (1996)].
b. Probable cause is often established based on police

observation, eyewitness accounts, forensic evidence
and tests, or a suspects admissions or conduct.
(2) Probable cause is always required to engage in a fullscale intrusiona full blown evidentiary search or an
arrest.
c. Probable cause may also be based on a tip from a

confidential or anonymous informant.
(1) The totality of the circumstances test is used to
assess the reliability of an informants tip to establish
probable cause [Illinois v. Gates, 462 U.S. 213 (1983)].
The factors considered are:
(a) Veracity of the informant (does he have a positive
track record);
(b) Basis of knowledge (how does the informant know
the activities of the suspect);
(c) Police investigation that corroborates the facts in
the and validates the accuracy of the informants
predictions;
(2) An informant generally need not reveal his or her

identity. However, if the informant does identify himself, it
bolsters the reliability of the tip because it subjects the
informant to possible penalty for providing false information.
(3) In order to establish probable cause, the totality of these
circumstances (factors) must indicate that the informant
provided: predictive information indicating the informant
had insider knowledge of the suspect's criminal activities:
this is what ultimately renders the tip reliable.
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EXAM TIP: Corroborating a prediction that any neighbor or

enemy could make to the police (like the car someone
drives, the route they take to work, or the time they
normally leave every day) does not indicate the informant
really knows anything about the suspects criminal
activities, and therefore normally will not establish probable
cause.
d. Reasonable Suspicion is defined as a belief based

upon articulable information more than a mere hunch used
by a reasonable person or police officer that the suspect
has or is about to engage in illegal or criminal activity.
(1) Reasonable suspicion is a level of certainty that will
justify: only a brief investigatory seizure (a Terry
stop) or a cursory protective search (A Terry frisk).
EXAM TIP: Reasonable Suspicion will never justify an
arrest or a full-blown evidentiary search.
(a) A police officers subjective suspicion (or instinct, or

hunch): is not objectively verifiable, and therefore
never sufficient to qualify as reasonable suspicion.
(b) Thus, to transform subjective unreasonable
suspicion to reasonable suspicion, the officer must
have some verifiable objective fact to support her
suspicion he must have something more than a
feeling.
EXAM TIP: Reasonable suspicion is best remembered

as the addition of an objective fact to the police officers
subjective instinct based suspicion that corroborates
that suspicion. Doing so permits a reviewing court to
assess whether the police officer has a particularized
and objective basis for suspecting legal wrongdoing.
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E. Applying the Fourth Amendment to Seizures.

1. Arrests.
a. Probable cause is: always required for an arrest.
b. Probable cause to arrest may be obtained by a
variety of methods, including: reliance on an
informants tip that establishes PC.
c. There is no requirement to obtain a warrant to arrest a

suspect in public so long as: police have probable cause to
arrest the suspect.
EXAM TIP: a suspect is like any other piece of evidence
the police seize. If the suspect is in public and police need
not intrude upon a REP to arrest the suspect, then like
evidence in plain view, police need not obtain a warrant to
arrest (seize) the suspect.
d. An arrest warrant is required before police can arrest an
individual in his own home, absent exigent circumstances
or consent.
e. Exigent circumstances that will allow a warrantless entry

into the suspects home to execute an arrest requires the
following:
(1) An arrest attempt outside the home is: thwarted
because the suspect retreats into the home;
(2) There is: insufficient time to secure a warrant because
the delay would allow the suspect to evade arrest or
destroy evidence; or
(3) The arresting officer is: in hot pursuit and has
probable cause to effect a valid arrest of the suspect;
(4) The offense is more serious than a minor
misdemeanor.
(5) The officer did not: unlawfully create the exigency.
EXAMPLE: While on a routine patrol, Officer Jones

observes an individual he who matches the description of a
suspect who just robbed a cab driver at gunpoint. As Jones
approaches the suspect, the suspect bolts, ignoring Jones
verbal demands to stop running. The suspect runs into his
house and slams the door behind him. Jones may enter the
home to arrest the suspect without obtaining a warrant.
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1.Terry Stops.
a.Reasonable suspicion that a crime is in
progress or has just been committed by the
suspect justifies a: brief investigatory
seizure of the suspect (a Terry Stop) to
confirm or rule out the suspicion.
b. Reasonable suspicion that crime is about to or has just

occurred may be established by:
(1) Police observations or eyewitness reports.
(2) Headlong flight from police in a high crime
neighborhood.
(3) An informants tip coupled with police investigation
that corroborates the accuracy of the informants
predictions.
(a) Unlike the test for probable cause, which requires the tip
to provide predictive inside information, reasonable
suspicion is established by: verifying the informants
predictions, even if they do not indicate insider
access.
EXAMPLE: Police receive an anonymous tip that an

African American teenager about six feet tall is at a bus
stop wearing a red plaid shirt, and that he has an illegal
pistol under his shirt in his belt. Even if police corroborate
that a teenager matching this description is located at the
bus stop provided in the tip, there is no reasonable
suspicion because there is nothing predictive about the
information corroborated. If, however, the tip indicates that,
in ten minutes the same individual will arrive at the bus
stop, and police wait there and observe his arrival,
corroboration of this information does establish reasonable
suspicion, although not probable cause.
(b) But a tip that provides nothing more than existing

information, even if corroborated by police investigation,
does not establish even reasonable suspicion.
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c. stop as long as the request has an immediate relation to

the purpose of the stop.
d. The permissible scope of a Terry Stop is the time
required: acting in due diligence, to confirm or deny the
suspicion.
e. The fact that an officer may have also had some

improper subjective basis for the stop will not result in a
finding that the stop was illegal: as long as the stop was
supported by an objectively reasonable belief that the
suspect was engaged or about to engage in criminal
activity.
EXAM TIP: Remember, reasonable suspicion for a

Terry Stop can blossom into probable cause. If during
the investigatory stop the police officer obtains
additional information rising to the level of probable
cause, the Terry Stop may be escalated to an arrest
and the suspect may be searched incident to that arrest.
3. Seizures of Property.
a. A warrant based on probable cause is
presumptively, but not always, required to justify the
seizure of property.
b. No warrant is required if the property is: in the
officers plain view.
c. Plain view requires:

(1) The police are: in a lawful vantage point to observe the
item (in other words, they dont have to conduct a
search to observe it);
(2) The incriminating nature of the item is: immediately
apparent (in other words, what the officer observes
immediately establishes probable cause to seize); and
(3) The officer has: lawful access to the point of seizure (in
other words, the officer may reach the item to seize it
without committing a search).
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d. There is no inadvertence requirement. Even if he police

suspect they might find an item while executing a search
warrant that they did not list in the warrant, if it comes into
plain view the seizure is reasonable.
EXAMPLE: Police obtain a warrant to search suspects

home. The items to be seized listed in the warrant include
stolen coins and stamps. The officer or requested the
warrant also anticipates the suspect has weapons used in a
robbery in his home. During the search for the coins and
stamps, the Uzi machine gun comes into plain view. The
officer may seize the machine gun even though it was not
listed in the warrant, and even though he anticipated he
would find it. Because he was acting within the scope of the
warrant, and had probable cause to believe the machine
gun was contraband, the plain view doctrine permits the
seizure.
e. The Plain View doctrine is: an exception to the warrant

requirement for a seizure; it does not justify a warrantless
search for contraband.
EXAMPLE: A police officer is searching an apartment for an individual

who shot a bullet through the floor into the apartment below. While in
the apartment, the officer observes a stereo receiver that seems to
high end to be in such a run down apartment. The officer has a hunch
the receiver is stolen, so he lifts the receiver to write down the serial
number from the bottom. He calls in the number and it turns out the
receiver was reported stolen. The officer then seizes the receiver.
Because the officer had to move the receiver to establish probable
cause it was stolen, and because moving the receiver went beyond the
scope of searching the apartment for a person, the requirements of
plain view were not met and the seizure was tainted by the predicate
unreasonable search. Had the serial number been on top of the
receiver observable without expanding the scope of the search for the
person, the requirements would have been satisfied and the seizure
would have been reasonable.
EXAM TIP: If the officer must conduct a search in order to

observe the item, it was not in plain view!
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F. Applying the Fourth Amendment to Searches.

1. Searches pursuant to a warrant. A search warrant
confers upon police only the authority to search
named places or persons.
a. The scope of the search is limited to the
premises described in the warrant.
b. Nonetheless, contraband: not named in the
warrant may be lawfully seized under the
plain view doctrine so long as the police
search within the scope of the warrant.
c. A location owned by non-suspects: may be searched

upon obtaining a warrant.
d. A search warrant for a premises carries with it the
right to detain occupants during the search, but not
the right to search those persons.
2. Warrantless Searches: Exceptions to the Warrant

Requirement. A warrantless search is unreasonable
unless it falls within one of the following established
exceptions.
a. Searches Incident to a Lawful Arrest (SITLA). A
warrantless search of the arrestee and: the area
within his immediate control (wingspan or lunging
distance) is automatically permitted.
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(1) SITLA is triggered by a lawful arrest, which means an

arrest based on PC.
(a) A subjective ulterior motive by the arresting officer is
irrelevant. So long as: the officer had PC that the
suspect committed an offense, SITLA is triggered.
EXAM TIP: Remember, an officer may have PC but

may also make a reasonable mistake. If an officer
conducts an arrest based on PC and discovers
evidence during the SITLA, and it later turns out she
arrested the wrong suspect, the search is reasonable so
long as the mistake was objectively reasonable.
(b) There is no authority to conduct a search incident to

citation, even if the offense is one that permitted the
officer to arrest the suspect.
(2) A search incident to a lawful arrest must be

contemporaneous to the arrest, and may even precede it.
(3) Although the rationale for the SITLA is protection of the
arresting police officers and preservation of evidence: there
is no requirement to individually justify each SITLA.
(4) SITLA is: automatic!!!
(5) If a suspect is arrested in a home: the scope of SITLA is

limited to the area within his lunging distance, and does not
include the authority to search the entire house.
(a) However, if police have a reasonable suspicion
that others in the home may put them at risk,
they may conduct a cursory protective sweep of
other parts of the home to rule out the risk.
(b) This Terry sweep of the home is limited to ruling
out the risk to the officers: the scope is limited to
places where a person may be hiding.
EXAMPLE: A driver was ordered out of his vehicle and a

full search was held lawful, even though the arrest was only
for a traffic violation [Pennsylvania v. Mimms, 434 U.S. 106
(1977)].
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(6) When an arrest is affected while the defendant is in a car
or has immediately exited the car, a special rule applies to the
scope of the SITLA [Arizona v. Gant]:
(a) Like any other arrest: the police may automatically
search the person of the arrestee;
(b) If the arrestee has genuine access to the interior of
the car after being placed under arrest: the SITLA
extends to the interior of the car and all containers within
the interior.
(c) If as the result of being placed under arrest the
arrestee does not have genuine access to the interior of
the car: a search of the interior is permitted only when
police have a reasonable belief evidence related to the
crime of arrest is in the car.
Officer Smith is executing an arrest warrant for Jerry. He

knocks on Jerrys door and is let in. He pats Jerry down
and searches the closet and dresser in the room. Jones
does not believe anyone else is in the home. He then goes
up the stairs and searches all the rooms on the second and
third floors. On the third floor, he finds a stockpile of
automatic weapons and explosives. Is this an illegal
search?

EXAMPLE: Police have probable cause to arrest suspect for the
offense of driving on a suspended license. Police wait for him to arrive
at his home. When he arrives, police confront him as he is getting out
of his car and place him under arrest. Suspect is placed in handcuffs
and police search his person and find a vial of heroin in his pocket.
Suspect is then placed in the back of a police cruiser. Police then
search the interior of his car and find an unregistered pistol in the glove
box. The heroin will be admissible because the search of the suspects
person was within the proper scope of the SITLA; the pistol will be
inadmissible because the suspect was secured and did not have
access to the car at the time of the search, and there is no reasonable
basis to believe evidence related to the crime of driving on a
suspended license will be found in the car.

b. Automobile Exception to the Warrant Requirement
(1) Police may search an automobile or any other selfpropelled conveyance (motor home, boat, or airplane)
without a warrant: so long as they have probable cause.
(a) This exception is justified by: the inherent mobility of
the conveyance and the reduced expectation of privacy
resulting from pervasive government regulation.
(b) The warrant exception applies to: all containers within
the vehicle.
(c) This means that if police have probable cause to
search inside a closed container: once that container is
placed in a vehicle or located in a vehicle, it may be
opened and searched without a warrant.
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(2) Once police have probable cause to search the moving or

temporarily stopped vehicle they may: seize the vehicle, bring it to
the police impound lot, and search it later.
(a)This is the case even if there is: sufficient time to
obtain a warrant between seizure of the vehicle and
search.
(3) The permissible scope of the search is dictated by the probable
cause, which prohibits police from automatically searching the entire
vehicle.
EXAMPLE: Police have probable cause to believe suspect is
transporting a stolen 50 flat panel television in the trunk of his
car. Police may stop the car and search for the television
without a warrant. However, they may only search in parts of
the car where suspect could store the television.
(4) Immobile vehicles. If a vehicle is incapable of locomotion, or is parked

in an area indicating it is not being used as a conveyance: the automobile
exception is inapplicable. However, this a very narrow limitation being
parked in a parking lot in a place where automobiles normally stop
temporarily does not trigger this limitation.
(5) Any automobile stop, for example to issue a citation, may lead to
probable cause there is contraband in the vehicle. If probable cause arises
after the initial stop: a warrantless search will then be justified.
c. The Special Needs Doctrine

(1) Police are permitted to use checkpoints to conduct brief seizures and/
or limited searches no individualized suspicion or warrant in response
to a public safety danger that cannot be addressed by complying with
the normal individualized suspicion/warrant requirements.
(2) The primary purpose of a special needs search or seizure: must be
to protect the public from an immediate danger.
(a) If the primary purpose is: general crime control or discovery of
evidence, this exception is inapplicable.
(b) Common special needs checkpoint searches include sobriety
checkpoints, search for recently escaped prison inmates,
counter-terrorism checkpoints, and checkpoints to
search for suspects of a recent crime.
EXAMPLE: Police set up a checkpoint to search vehicles for evidence of illegal
drugs. The checkpoint violates the Fourth Amendment because its primary
purpose is indistinguishable from the general interest in crime control and
because the checkpoint is not based on individualized suspicion of wrongdoing.
EXAMPLE: Officer Jones pulls suspect over for speeding. As he is writing

the citation, he asks suspect, do you have anything in the car I should
know about? Suspect responds, just a little weed in the glove
compartment. Officer Jones may now search the glove compartment for
marijuana, and any contraband he observes while doing so is subject to a
plain view seizure.
(3) A special needs search or seizure must be:

(a)based on a fixed formula that: deprives
individual officers of the discretion to select the
subjects.
(b)narrowly tailored in scope: to address the
specific threat.
EXAMPLE: In response to heightened intelligence
reports of possible terrorist subway bombings, police
may establish checkpoints to randomly search bags
of subway passenger. Police may only look in bags
capable of concealing a bomb.
(c) conducted in a location and a manner that
minimizes citizen anxiety.
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(4) Police may seize any contraband that comes into

plain view while searching within the scope of the
special needs inspection: even if the contraband is
unrelated to the public safety concern.
(5) Police officers may not: randomly stop a vehicle to
check the license and registration without a
reasonable suspicion of wrongdoing.
EXAM TIP: Because a special needs stop is a seizure, if it
is unreasonable (not based on a valid special needs
justification), any evidence it leads to will be tainted by the
stop. However, if it is reasonable, any subsequent search
or seizure will be unaffected by the stop, even if the
evidence is unrelated to the special need.
(6) The Border Exception:

(a) Customs officials may, with no suspicion or cause, as
an incident of national sovereignty:
(i) Stop vehicles at permanent checkpoints located
at or near the border;
(ii) Conduct routine searches of people and property
EXAM TIP: All international ports of entry, to include airports,
qualify as the border for purpose of this exception.
(b) Reasonable Suspicion is required for a non-routine
border search, which means a search that is: unusually
intrusive, such as a body cavity search or search of
property that results in permanent destruction.
HYPOTHETICAL
Angela is stopped at a sobriety checkpoint. Officer
Jones stands near the drivers side window and asks
Angela for her license and if she has been drinking.
While Angela is answering, through the passenger
window Jones sees the end of a bong sticking out of a
bag. Officer Smith then has Angela step away from the
car. He takes the bag from the car, seizes the bong, and
searches the contents of the bag. Inside the bag he
finds felony amounts of marijuana. Is the seizure of the
bong and the marijuana reasonable?
Consent
(1) Consent is an exception to both the warrant and probable cause
requirements. If an individual waives her right to privacy by
consenting to a search: the search is reasonable, even if the police
officer asked for consent based on a pure hunch.
(a) Any evidence observed in plain view within the proper scope of
a consent search: may be seized pursuant to the plain view
doctrine.
(2) Consent must be: voluntary, which is assessed based on the totality
of the circumstances.
(a) Consent is invalid if it is obtained by asserting a fake warrant,
fraudulently, under duress, or pursuant to an unlawful police
threat (a threat to do something that the officer has no authority
to do).
(b) However, the police are not required to inform a suspect of the
right to decline to give consent.
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(3) In certain situations, valid consent is implied by

virtue of engaging in specific behavior, such as
traveling by airplane or engaging in a regulated
business.
(4) Normally, the scope of consent is implied by the
request and/or the item the officer indicates he is
looking for.
EXAMPLE: Aida Fellon, eager to show that she did
not have anything to hide and to get the police off of
her back, invites them to check the car expecting the
police to only look in the passenger compartment. The
police were justified in arresting her when they found
heroin around the transmission because she gave the
police permission to check the car and never limited
the scope of the search.
(5) An individual has an absolute right to refuse to grant

consent, to withdraw consent once granted, or to limit
the scope of consent. However, an individual must:
clearly express any limitations on the scope of
consent prior to the officer finding the evidence.
EXAM TIP: Remember, if consent is obtained
following an unlawful seizure, the unlawful seizure is a
poison tree that taints the consent and any evidence it
leads to.
(6) Third-Party Consent

(a)Any person who has joint control or use of shared
premises may consent to a valid search, and any
evidence seized in plain view may be used
against the other occupants [Frazier v. Cupp, 394
U.S. 731 (1969)].
(b)Such consent applies to common areas, but not
to private, reserved areas where the defendant
has exclusive control [United States v. Matlock,
415 U.S. 164 (1974)].
(c) Police reliance on third party consent is reasonable so

long as the person granting consent has actual authority
over the place searched, or a reasonable officer would
believe the person had such authority.
EXAMPLE: Police respond to a report of domestic battery. They arrive at the
home of the victims mother, where the victim is located. The victim says
her boyfriend beat her, and that he is in their shared apartment. The police
ask the victim if she has the key, and she provides it to them and grants
them consent to search the apartment. Police enter the apartment, arrest
the boyfriend, and seize cocaine they observe in plain view on the coffee
table. It turns out the victim moved out about a month earlier and did not
have actual authority to grant consent. The search is nonetheless
reasonable so long as a reasonable officer would have concluded she did
have authority to grant consent at the time she granted it. [Illinois v.
Rodriguez, 477 U.S. 177 (1990)].
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EXAMPLE: A landlord may not consent to the search

of a tenants apartment [Chapman v. United States,
365 U.S. 610 (1961)].
EXAMPLE: A motel owner may not consent to the
search of a guests room [Stoner v. California, 376
U.S. 483 (1964)].
EXAMPLE: An employer may not consent to the
search of an employees private storage area.
(d) Police may not reasonably rely on third party consent
when the other resident is present and objecting. However,
if the suspect is not present and does not object, the cotenants consent is valid against him [Georgia v. Randolph,
547 U.S. 103 (2006)].
HYPOTHETICAL
Officer Jones pulls over Carmella for speeding. Carmellas friend
Adriana is also in the car. Jones has a hunch their might be drugs in
the car, and asks Carmella if she has any drugs in the car. She says
no. He then says, then I assume you wouldnt mind letting me take
a look in the trunk? Carmella agrees, and opens the trunk. In the
trunk Jones sees a backpack, and asks Carmella if it is hers. She
says no, that it belongs to Adriana. Jones then asks Adriana if he
can take a quick look inside, and Adriana hesitates. Jones then
says, if you dont let me look Ill just keep you both here until I can
get a drug dog on scene, and if the dog alerts on the bag or
anywhere else in the car I am going to search it. At that point,
Adriana says, I guess I have no choice go ahead and look.
Jones opens the backpack and finds marijuana inside. Is the
marijuana admissible?
e. Hot Pursuit. A warrantless search for a suspect is lawful

when: police are in actual hot pursuit of the suspect to
apprehend him.
(1)Police may enter and search a private dwelling: while
in hot pursuit of the fleeing suspect. Police may enter
the private dwelling of the suspect or of another
person.
(2)Police may execute a warrantless arrest the suspect
in the premises and: seize any contraband they
observe in plain view pursuant to a hot pursuit entry of
a premises.
HYPOTHETICAL
Two police officers are pursuing a purse-snatcher on foot
and follow the thief right into the home of Pierre, a person
with no connection to the purse thefts in any way. While
attempting to wrestle the purse-snatcher to the floor in the
living room, the officers observe about twenty small plastic
bags with white powder inside on a coffee table and seize
them. After they arrest the purse-snatcher, police search
his pockets and seize a vial of cocaine. Are the warrantless
seizures reasonable?
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f. Exigent Circumstances
(1)Closely related to Hot Pursuit is Exigent
Circumstances: Police may search without a warrant
when the situation indicates waiting to obtain a
warrant will result in imminent:
(a)destruction of evidence, or
(b)escape of the accused, or
(c)risk to the police or others in the area
(especially in the home).
(2)When police are in hot pursuit of a fleeing suspect, it
creates an exigency that justifies a warrantless home
entry.
EXAMPLE: During a Terry stop, a police officer sees a

drug suspect place a pill in his mouth. The officer may grab
the suspect on the throat in order to force the suspect to
spit out the pill.
(b)The procedure for seizing the evidence is: reasonable and does not shock
the conscience.
(4) Exigency justifies: a warrantless crime scene search to

seek other victims or a remaining killer or violent felon,
(5) Although, this exception does not authorize: a general
search at the crime scene unrelated to this purpose.
EXAMPLE: The blood-alcohol level of a drunk-driving suspect will diminish

over time. An individual suspected of murder by strangulation may have
evidence under his fingernails that he may easily remove. Both types of
evidence are easily destroyed or likely to disappear and thus may be obtained
from the suspects body by reasonable means, such as withdrawing blood by a
trained medical specialist, or scraping under the nails with a nail file. If the
method used was the only viable means to protect the evidence, it is more
likely to be considered reasonable.
(3) Exigency justifies a warrantless search and

seizure of evidence in or on a suspects body
provided that:
(a)There is probable cause to believe that: the
nature of the evidence renders it easily
destroyed or likely to disappear before a
warrant can be obtained; and
EXAMPLE: Pummeling a suspects stomach with nightsticks to induce vomiting

before having the suspects stomach pumped at the ER to retrieve illegal drugs
swallowed is not considered a reasonable procedure for obtaining evanescent
evidence. Such techniques shock the conscience and violate due process
[Rochin v. California., 342 U.S. 165 (1952)].
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g. The Terry Search (Frisk)

(1)A Terry Frisk is a cursory protective search for
weapons or some other instrumentality that creates
an imminent danger to the officer of others in close
proximity.
(2)A Terry Frisk is justified only by: reasonable
suspicion the suspect is armed and dangerous, and
is not automatically reasonable just because police
conduct a Terry stop.
EXAM TIP: A Terry Stop is justified by Reasonable
Suspicion crime is afoot; a Terry Frisk is justified only
when the reasonable suspicion also indicates the
suspect is armed and dangerous.
(3)The exclusive justification for a Terry Frisk is: protective, not to search
for evidence.
(4)As a result, the scope of a Terry frisk is strictly limited to a cursory
inspection of the suspects outer clothing to confirm or deny that the
suspect is armed.
(a) If the frisk/pat down results in the officer feeling something he
knows immediately is a weapon or any other contraband: the
officer may seize the weapon without a warrant pursuant to the
plain touch variant of the plain view doctrine.
(b) However, because the exclusive purpose of a Terry frisk
is to protect from danger caused by weapons and not to
search for evidence, if the officer feels something he knows is
not a weapon but merely suspects is contraband and has to
manipulate the item to establish probable cause to seize: this
manipulation exceeds the scope of the Terry frisk and the
seizure is therefore unreasonable.
(5)The protective rationale for a Terry Frisk has been

extended to:
(a)A brief cursory look in areas within an automobile
where police have reasonable suspicion a person
stopped will have immediate access to a weapon:
after getting back in the car (for example, after being
issued a traffic citation).
(b)A cursory sweep of the interior of a home when
police enter the home to serve a warrant based on
reasonable suspicion that: others may be present
and endanger the officers.
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HYPOTHETICAL
A police officer sees Christopher pacing in front of a jewelry
store and going back and forth to consult with some friends
a block away about four times. Based on his years of
experience, the officer suspects the group is planning to
rob the store. May the officer lawfully approach Christopher
to ask a few questions? If Christopher tries to walk away,
may the officer stop and question Christopher? May he frisk
Christopher?
HYPOTHETICAL
Late one night, Officer Matthews, while on solo patrol, pulls
Roger over for speeding. Matthews asks Roger to exit the
car, takes his license, and calls in his name. Matthews
learns that Roger has a prior record for possession of an
illegal pistol. Matthews returns to Roger and gives him the
ticket and says, do you have any weapons in the car?
Roger hesitates a moment and then says, nope. Before
Matthews lets Roger back in the car he leans in and takes
a quick look with his flashlight under the front seats, on the
floorboards of the front, and between the two seats.
Between the seats he sees a plastic bag with green leaf
inside. Matthews seizes the bag, and later testing confirms
it contains marijuana. Will the marijuana be admissible?
h. Administrative Searches. Administrative searches are an

exception to the normal probable cause and warrant
requirement because they are conducted for a non-criminal
purpose: and are therefore justified on a lower standard of
cause.
(1)Agency Inspections
(a)An administrative search is really best
understood as an agency compliance inspection
whereby compliance with administrative
regulations or health and safety codes is verified.
(b)Because the primary purpose of these searches/
inspections is not discovery of evidence of crime:
they are normally justified by reasonable
suspicion.
(c)Normally, agency inspectors will also be required to

obtain an administrative warrant to search private homes
or businesses, with some exception
1) Airport Screenings. To protect airline passengers
from weapons and explosives, warrantless
administrative searches are permitted at airports. A
passenger may avoid being searched by declining to
board the plane.
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2) Border Searches
a) Customs and immigration officers may conduct routine
searches of people and property crossing the borders into
the United States with no particularized or individual
suspicion.
EXAM TIP: A border search may occur at any border crossing, to include
international airport ports of entry, and fixed border inspection stations
established several miles inside the United States on highways.
i) Vehicles at a border crossing: may be stopped without cause for
questioning.
ii) Reasonable suspicion is required: to fully search the vehicle.
iii) Where a suspect refuses to submit to an X-ray by customs
agents at the border, and reasonable justification for detention
initially exists, the detention may continue until a bowel
movement occurs.

2. Standing.
a. The defendant asserting the Fourth Amendment
remedy of exclusion must show that the unreasonable
search or seizure intruded on his personal
constitutional rights.
b. A defendant may not: vicariously assert someone
elses constitutional rights.
c. Introduction of evidence against a defendant:
(1) does not by itself give the defendant standing to
suppress: even if the evidence was obtained as the
result of a Fourth Amendment violation.
(2) Defendant must first show that the Fourth
Amendment violation was directed against: his Fourth
Amendment protection, not someone elses.

G.Fourth Amendment Remedies: Standing and the
Exclusionary Rule. Just because a search or seizure violates
the Fourth Amendment does not automatically mean the
defendant will be entitled to the remedy of exclusion of the
evidence. Exclusion requires that the violation: was directed
against the defendants Fourth Amendment protection, not
someone elses.
1. In order to claim the remedy of exclusion, three requirements
must be satisfied:
a. The unreasonable search or seizure must trigger the
remedy of exclusion;
b. The defendant claiming the remedy (seeking exclusion)
must have standing;
c. The facts do not support applying an exception to the
exclusionary rule.

EXAM TIP Unless the government illegality intruded upon the
defendants Fourth Amendment protection (was an
unreasonable search of his REP or seizure of his property),
the defendant cannot prohibit the introduction of the
evidence, even if the police obtained it by violating someone
elses Fourth Amendment protections.
EXAMPLE: A criminal defendant does not have standing to
dispute the unreasonable search of a friends backpack that
leads to the seizure of evidence that incriminates him, even if
he gave it to his friend to carry. This is because the
unreasonable search was not directed against the
defendants constitutional protected REP, and once the
police were inside the bag the evidence was seized lawfully
pursuant to the plain view doctrine.
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d. The following rules are used to assess standing:

(1)A defendant has standing if: he has ownership or a
possessory interest in the place searched or the item
seized.
(2)The owner of a car, or the person in possession of
the car (like someone who rents a car) has standing
to: seek exclusion of evidence obtained as the result
of an unreasonable search of the car.
(a)Passengers in the car do not have standing to
complain about the search of the car.
(b)However, when an automobile is seized, all occupants in

the automobile are seized, even if they are just
passengers with no ownership or possessory interest in
the car.
1) An unreasonable seizure of a car equals: an
unreasonable seizure of all passengers.
2) If a passenger has been seized unreasonably, this
unlawful seizure is a poison tree, which may require
the exclusion of evidence the seizure leads to.
(3)Guests in someone elses residence:

(a) A defendant who is an overnight guest in anothers
home: has standing to challenge the search of
the home.
(b) Short-term commercial visitors, or non-overnight
social guests: do not have standing to complain about a
search of the hosts home.
3. Exclusionary Rule
a. A defendant who has Fourth Amendment standing may:
invoke the exclusionary rule to prohibit the government
from introducing evidence obtained as a direct or
derivative result of the unreasonable search or seizure.
b. Fruit of the Poisonous Tree Doctrine. Any evidence
derived from the initial illegality, including oral statements
and physical objects: falls within the scope of the
exclusionary rule as tainted fruit of the poisonous tree.
EXAM TIP: Always ask if there is a but for connection
between the evidence the prosecution seeks to admit and
a violation of the defendants constitutional rights. If so,
the evidence falls within the fruit of the poisonous tree
doctrine.
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HYPOTHETICAL
Police pull over a car without any lawful justification.
The officer runs the drivers license and then arrests the
drive for an outstanding warrant, conducts a SITLA of
the driver and finds cocaine in her pocket. The officer
then asks the passenger for consent to search his
backpack, which he grants. Inside the backpack the
officer finds marijuana and seizes it. Both the driver and
passenger are brought trial, and both move to suppress
the drugs seized by the officer. Will the evidence be
excluded?

c. A Miranda violation does not qualify as a poison tree and cannot
be invoked as the basis to exclude evidence derived from the
inadmissible statement. The only consequence of a Miranda violation is
inadmissibility of the confession in the prosecution case-in-chief).
EXAMPLE: Criminal defendant is arrested lawfully but not read her
Miranda warnings. After being subjected to custodial interrogation, she
confesses to being a runner for a drug ring and tells the police where
the drugs are manufactured and stored. Police use the confession to
obtain a search warrant and find and seize the drugs. Her confession is
inadmissible in the prosecution case-in-chief because police violated
the Miranda rule, but the drugs seized are admissible even though
there is a but for link between the Miranda violation and the drugs,
because the Miranda violation is not a poison tree [US v. Patane].
d. Exceptions to Fruit of the Poisonous Tree exclusion.

Evidence with a but for link to a constitutional violation
(poison tree) may still be admitted if the government can
prove applicability of one of three exceptions:
(1)Independent source. If the evidence is obtained
from a lawful independent source it is: admissible,
even if police acted illegally to confirm the location of
the evidence.
(a) In other words exclusion is not justified when
there is no but for link between the police
violation and the seizure of the evidence.
EXAMPLE: Police surveillance establishes sufficient information to

establish probable cause defendant is storing large amounts of marijuana
in a warehouse. The lead detective sends one officer to the court-house to
present the information to a magistrate and request a search warrant. The
officer does so, and the magistrate issues the search warrant. Before the
officer returns with the warrant, the lead detective unlawfully enters the
warehouse just to confirm that what they think they are going to find is
actually there. He observes large amounts of marijuana. He then departs
the warehouse and awaits the officer with the warrant. When the officer
arrives with the warrant, they once again enter the warehouse and seize
the marijuana. This evidence is admissible. Although the police committed
an unreasonable search of the warehouse (a poison tree), that search in no
way impacted the information submitted to obtain the warrant. Therefore,
although there was an unlawful search (a poison tree) there is no but for
connection between the tree and the fruit (the marijuana) because the
unlawful search did not lead to the evidence. It is therefore admissible.
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(2)Inevitable discovery. Evidence that is obtained through a poison tree
(a but for connection to a violation of the defendants constitutional
protection) will still be admissible if: the police establish they would have
inevitably discovered the evidence through an different and independent
source.
EXAMPLE: Defendant leads Detective Leaming to the body of his
murder victim after Leaming elicits a confession from the defendant
in violation of the defendants Sixth Amendment right to counsel.
This violation is a poison tree, and but for this constitutional
violation, Leaming would not have found the body. However,
because at the time Leaming finds the body other police were
systematically searching in the same area, the Court concluded they
would have inevitably found the body in virtually the same
condition independent of the constitutional violation. Therefore
the body was admissible.
(a)Inevitable discovery is really another way of saying

almost independent source.
(b)Because police obtain the evidence as the result of a
but for link to a poison tree: it is essential that the
government prove independent source discovery was
truly inevitable.
EXAM TIP: Look to see if the gears of independent
discovery had already been set in motion.
EXAMPLE: Defendant is arrested for driving under the

influence. He voluntarily gets out of his car and, after failing
the field sobriety test, is handcuffed and placed in a police
car. His car is then locked and left by the side of the road
until the police are able to come back to tow the car back to
the police station for an inventory search. But, before the
tow truck comes to collect the car, the police officers search
the entire car, including the trunk and glove compartments,
without a warrant and find in the trunk evidence of a
gambling ring being run by the defendant. This evidence
would most likely not be suppressed under the doctrine of
inevitable discovery.
(3)Attenuation. Evidence with a but for link to a poison

tree may be so distant from the initial illegality that: the
taint of the poison is purged, and therefore the
evidence is inadmissible.
(a)This exception turns on a combination of the
flagrancy of the constitutional violation (the more
flagrant, the more potent the poison) and the distance
between the violation and the evidence.
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(b)This exception will often be asserted when police obtain

a voluntary confession following an unlawful arrest.
1)If the confession follows immediately after the
arrest: the exception will rarely apply.
2)Factors supporting attenuation include:
a)different location,
b)passage of time,
c)different officers, and
d)a valid Miranda waiver.
EXAM TIP: It is easier to attenuate the taint of an arrest

that is unlawful because the police failed to obtain a
required warrant even though they had probable cause
(like an in home arrest without a warrant) than an arrest
where the police did not even have probable cause.
This is because the poison from the first violation is
less potent than the poison from the second violation.
e. Other Limitations to the Exclusionary Rule

(1)Impeachment: The exclusionary rule does not apply to the use of
tainted evidence: to impeach the defendants testimony.
EXAM TIP: A defendant cant hide behind the exclusionary rule to lie.
(2)Good Faith Exception: Because the exclusive objective of the
exclusionary rule is to deter police misconduct, when police act in good
faith reliance on a warrant that is subsequently ruled invalid, the
evidence seized will not be subject to exclusion.
EXAM TIP: Warrants are usually issued by magistrates based on their
conclusion the evidence presented is sufficient to establish probable cause.
Motions to exclude that evidence are presented to the trial court, which then
reviews the warrant application in order to determine whether the magistrate
made a proper determination of probable cause. Sometimes the trial court
determines the magistrate made a mistake in issuing the warrant because of a
lack of probable cause. However, so long as a reasonable officer would have
still relied on the warrant, exclusion will have no deterrent value on future police
conduct and is therefore not appropriate.
(a)Limitations to the good-faith exception. Because the

rationale of the good faith exception is prohibit admission
of evidence obtained as the result of unreasonable
police conduct, the good faith exception is inapplicable
where: a reasonable officer would know not to rely on
the warrant ruled invalid by the trial court.
(b)This exception to the exception" will apply:
1)Where the police: lie or mislead the magistrate (a lie
by one officer is imputed to all officers).
2)Where the warrant is: so facially defective that no
reasonable officer would rely on it.
3)Where a reasonable officer would know that the
magistrate is not neutral and detached.
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(c) The Supreme Court has extended the good faith

exception to:
1) an arrest in reliance on a warrant that should have
been purged from the system by the police: No
exclusion even when there is police error so long as
the error is isolated negligence attenuated from the
point of arrest.
2)A search conducted in reliance on a judicial precedent
that is changed prior to the case coming to trial.
III. STATEMENTS AND CONFESSIONS
HYPOTHETICAL
Officer Jones wants a warrant to search Franks
apartment. He submits an affidavit to the magistrate
indicating a confidential information provided reliable
information that Frank is growing marijuana in his
basement. Jones falsely indicates that the CI has provided
reliable tips on 8 of the prior 9 occasions. In fact four of
those prior tips have proven to be erroneous. The
magistrate issues the warrant, and Officer Jones gives it to
the drug suppression team. That team, unaware of the
misrepresentation, executes the warrant and discovers
marijuana and other evidence. Will the marijuana other
evidence be admissible?
FOUR BASES TO EXCLUDE STATEMENTS AND CONFESSIONS

APPROACH
1.Voluntariness ApproachStatements
obtained by actual coercion are involuntary
and inadmissible for any purpose.
CONSTITUTIONAL BASIS/TRIGGER/TEST
2.Right to Counsel ApproachThe

deliberate elicitation of a statement from a
defendant (someone who has been formally
charged) is inadmissible unless counsel was
present or police obtain a knowing and
voluntary waiver.
Due Process Clause of 5th and 14th Amendments

Triggered by government conduct that overbears
the free will of the suspect
Totality of the circumstances
6th Amendment Right to Counsel
Triggered by direct or surreptitious police
questioning of a defendant who without the lawyer
present or a waiver
Was counsel present? If not, did defendant waive?
3.Miranda RuleStatements obtained as the

result of custodial interrogation are
inadmissible in the prosecution case-in-chief
in the absence of Miranda warnings and valid
waiver.
5th Amendment Privilege Against SelfIncrimination

Triggered by Custody + Interrogation
Did suspect make a knowing and voluntary
waiver? If not, statements violate Miranda.
4.Fruits of Illegal ConductStatements that

comply with the 3 tests above may still be
tainted if they are the but for consequences

of a predicate constitutional violation like an
unreasonable search or seizure.
Fruit of the Poisonous Tree Doctrine

Triggered by a but for link between a constitutional
violation and police obtaining the statement
Is the statement a product of the prior violation? If
so, can the government prove it is sufficiently
attenuated from the poison tree?
A.Actual Coercion: the Due Process Voluntariness

Standard.
1. A statement procured by actual coercion: police conduct
that overbears the free will of the suspect is inadmissible:
for any purpose.
a. Voluntariness standard is assessed based on the:
totality of the circumstances.
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b. Factors of coercion include:
(1) The defendants age, health, education, intelligence, gender,
cultural background;
(2) Location, duration, physical conditions of interrogation;
(3) Number and demeanor of police officers, suspects
experience with the criminal justice system;
(4) Deception and trickery.
EXAM TIP: Police deception and trickery during interrogation is just
one of the factors to assess pursuant to the totality of the
circumstances test, and rarely in and of itself renders a statement
involuntary.
EXAMPLE: An eleven-year-old confesses to a crime when confronted
by a number of burly policemen. There is a legitimate question as
to whether this confession is truly voluntary. This would unlikely
raise a voluntariness concern for an adult suspect.
2. Obtaining Statements in violation of the Sixth

Amendment right to counsel:
a. The initiation of formal adversarial process (formal
charge, indictment, arraignment, or preliminary
hearing) triggers the Sixth Amendment right to the
assistance of counsel during all critical stages of the
adversarial process.
(1)A critical stage includes: deliberate elicitation of
statements, physical lineup, preliminary hearing,
and trial.

c. Coercion can take the form of physical abuse, psychological
pressure, or threats of future harm for failing to answer questions.
EXAMPLE: Suspect is an inmate in prison, and is befriended by a
fellow inmate who tells him he is connected to the Mafia. The new
friend tells him he will ensure he is protected from other prisoners
who know he is suspected of molesting and murdering a young child.
But in exchange, the friend says, you first have to tell me if you did
it. Suspect confesses to the crime. The inmate friend is in fact a
snitch on the FBI payroll who passes the information to the FBI. This
confession is involuntary because it was coerced by threat of future
harm if the suspect did not provide the confession.
d. Remember, no impeachment exception for an actually coerced
statement, and no requirement to be in custody when the
statement is made.
EXAM TIP: it is useful to distinguish a suspect from a

defendant. A suspect is an individual suspected by the
police of having committed a crime. A suspect becomes
a defendant at the initiation of the formal adversarial
process when he is formally charged and the
prosecutor is now involved in the case. A suspect has
no Sixth Amendment protection; a defendant does,
but only for the crime he is a defendant for. In other
words, the Sixth Amendment is offense specific.
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(2) In Massiah, the Supreme Court held that the

deliberate elicitation of a pretrial statement from a
defendant is a critical stage triggering the right to
assistance of counsel [Massiah v. United States, 377
U.S. 201 (1964)].
(3) Deliberate elicitation is: express or implied
questioning.
b. Therefore, any statements obtained by the police from a
defendant related to the crime he is formally charged with is
inadmissible unless:
(1)His lawyer was present, or
(2)He executed a knowing and voluntary waiver
[Montejo v. LA].

EXAMPLE: Defendant is indicted and arraigned for the murder
of a child. While driving defendant from one city to another,
Detective Leaming says to him, I know you want the victims
family to be able to give their child a Christian burial. I am not
asking you for an answer; I just want you to think about that as
the snow starts to fall. About 30 minutes later, Defendant tells
Leaming where the body is and leads him there. This
confession is inadmissible. Leamings statement, although not a
direct question, was an implied question. Because the
indictment and arraignment both initiate formal adversarial
process, Defendant was protected by the Sixth Amendment
Right to Counsel. Because counsel was not present and
Leaming never obtained a waiver, use of the confession violates
the Sixth Amendment.
c. A violation of the Sixth Amendment does not require

defendant know he is being questioned by a government
agent: and therefore surreptitious questioning or
questioning by a snitch trigger the Massiah rule.
e. The Sixth Amendment right to counsel is offense-specific

(1) It only shields the defendant from questioning on the
offense he has been charged with.
(2) Police may continue to question: on other offenses,
even if those that are factually related to the charged
offense.
EXAMPLE: Police were allowed to question a defendant
without counsel about the murders of a homeowner and
his daughter, even after the defendant had been indicted
on burglary charges (and represented by counsel on these
charges) relating to the victims home [Texas v. Cobb, 532
U.S. 162 (2001)].
d. Government agents are permitted to approach the

defendant to elicit a waiver of his Sixth Amendment
assistance of counsel during questioning, and the waiver is
effective: so long as the defendant knew the right he was
giving up and did so without any government coercion.
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EXAM TIP: Remember, just because questioning does not

implicate the Sixth Amendment right, it may still implicate
Miranda or the Due Process voluntariness rule. Analyze
each of these protections independently.
EXAM TIP: The PASI applies only to testimonial

evidence, and does not permit a witness to refuse
to provide other evidence even if it is clearly
incriminating (blood, hair, DNA, fingerprints,
participation in a lineup, handwriting samples,
etc.).

3. The 5th Amendment Privilege Against Self-Incrimination
(PASI)
a. The Fifth Amendment states that no person shall be
compelled in a criminal case to be a witness against
himself.
b. This means any person called to testify in any proceeding
(trial, grand jury, preliminary hearing, administrative
hearing, legislative hearing, court-martial, etc.) has an
absolute privilege to refuse to testify when:
(1) He has a real and substantial fear that his testimony
will result in self-incrimination or contribute to his criminal
conviction in the United States.
(2) He asserts the privilege by refusing to testify.

c. Proof of waiver is normally established by the mere act of answering
police or government questions. A warning and express waiver is
required: only when the suspect is in custody pursuant to the Miranda rule.
d. The government can eliminate the risk of self-incrimination by granting
immunity. There are two types of immunity:
(1) Use/Testimonial Immunity: prohibits the use of the witnesss
testimony or any evidence derived from that testimony against the
witness.
(a)This type of immunity full supplants the PASI, and permits the
government to have the court force the witness to testify;
(b)Use/testimonial immunity does not bar subsequent prosecution
of the witness so long as the evidence has no connection to the
testimony.
(2) Transactional immunity: is extremely broad and prohibits any future
prosecution of the witness for the transaction that is the subject of the
testimony.
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4. The Miranda Rule

a.Because subjecting a suspect to custodial
interrogation produces inherent coercion, the
prosecution may not use statements obtained as the
result of questioning while in custody in the case-inchief unless: the police neutralize this special type of
inherent coercion by complying with the Miranda
warning and waiver requirement.
EXAM TIP: A valid Miranda waiver restores confidence that
a suspects statements made during custodial interrogation
are in fact the product of free will and therefore not the
product of inherent coercion because it neutralizes the
corrosive effect of custodial interrogation.

d.The Miranda warning and waiver requirement is triggered by: custody +
interrogation:
(1)Custody is formal arrest, or a situation where a reasonable
person in the suspects position would believe: their freedom has
been deprived to a degree analogous with formal arrest
(functional equivalent).
(a)Custody requires an objective indication that: police are
initiating criminal process, for example being taken to the
station for booking.
(b)The subjective intentions of the officer are not controlling
custody is assessed objectively from the perspective of the
suspect.
(c)A Terry Stop is not custody because it is defined as: a brief
investigatory seizure.
(d)Therefore, police may: question an individual subjected to a
Terry Stop without implicating the Miranda rule.
b.In order to establish valid waiver: the police must

advise the suspect of the rights he is giving up by
agreeing to answer questions.
c.These rights are:
(1)the right to remain silent;
(2)that anything said can be used against him
in court;
(3)the right to the presence of an attorney;
and
(4)if he cannot afford an attorney, one will be
provided for him
EXAM TIP: Not all seizures are custody, but all custody is
a seizure. The line between a non-custody seizure and a
seizure that is custody is normally identified by objective
indications that the seizure is not brief, but instead the
suspect is likely going to end up at the station for booking.
But remember, an encounter can escalate from a noncustody seizure into a seizure that is custody (which
happens whenever the suspect is arrested). At this point,
the Miranda rule comes into effect.
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(2)Interrogation is direct questioning (anything ending with a

question mark): or words or actions a reasonable officer would
anticipate were likely to result in eliciting an incriminating response
(functional equivalent).
(a)Interrogation focuses on the reasonable officer, unlike custody,
which focuses on the reasonable suspect.
EXAM TIP: If the police are aware of a particular vulnerability of the
suspect and exploit that vulnerability, that fact is imputed to the
reasonable officer used to assess whether the statements or conduct
used by the actual police qualify as questioning.
e. Limitations of and Exceptions to the Miranda Rule

(1)A Miranda violation does not result in the
exclusion of other evidence derived from the
inadmissible statement, because a Miranda
violation does not trigger the fruit of the poisonous
tree doctrine.
(b)Spontaneous or volunteered statements do not implicate the

Miranda rule, even if they are made by a suspect while in
custody, because: they are not the product of questioning.
HYPOTHETICAL
The police go to the home of Joe and Linda after getting a
domestic disturbance complaint. When they arrive, they
find Joe and Linda outside. Linda tells police Joe
threatened to shoot her with his pistol. They place Joe
under arrest and walk him to the police cruiser. While he is
sitting in the back, a rookie officer says, why dont you just
tell us where you hid that pistol to make this easier on
yourself. Joe responds, I just want to get this over with;
the pistol is hidden under my car. Police recover the
pistol. Is Joes confession admissible? How about the
pistol?
(2)Public safety: When the primary purpose of the police

questioning is to protect police or the public from an
imminent danger of serious harm: the suspects
answers are admissible even without a Miranda
waiver.
(3)Statements obtained from the defendant in violation
of Miranda rights are admissible: to impeach the
defendants testimony at trial.
EXAM TIP: A defendant cannot hide behind a Miranda
violation to lie under oath.
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f. Waiver of Miranda Rights

(1)In order to neutralize the inherent coercion of custodial
interrogation, the prosecution must prove: the suspect
executed a knowing and voluntary waiver of Miranda
rights.
a)
The waiver must indicate the suspect
understood the rights, and engaged in a course of
conduct indicating a voluntary waiver:
1)This is normally established by having the suspect
state orally or in writing she understands the rights
and is willing to answer questions without a lawyer;
2)The waiver need not be in writing, but the
prosecution must prove the suspect acknowledged
her understanding of the rights.
(b)The defendant need not be warned of: possible charges

facing him.
(c)Waiver may never be presumed from: a defendants
silence.
1) However, because silence does not invoke the
Miranda right, police are permitted to repeatedly ask
a silent suspect for a waiver.
(d)A valid Miranda waiver is strong evidence that the
subsequent confession is actually voluntary, although it
is possible to comply with Miranda and still violate the
due process voluntariness test.
HYPOTHETICAL
John is suspected by police of murdering a child. Based
on a warrant for his arrest, John is apprehended and
brought to the police station of interrogation. Detective
Smith advises John of his Miranda rights, and John signs
a waiver form indicating he is willing to speak with the
police. John denies the murder over a three hour
interrogation. Frustrated, Detective Smith loses his temper
and slams John against the wall violently enough to knock
John to his knees and cut the back of his head. Smith
says, I know you killed that little girl. If you dont admit it, I
am going to beat you to a pulp! John then confesses. Is
the confession admissible?
g. Special Rules During Interrogations

(1)Miranda warnings need not be repeated: because of
a short (as opposed to significant) break in
interrogation or because a new police agent begins
questioning.
(2)If a suspect makes an unequivocal request for an
attorney: or that she wishes to remain silent, all
interrogation must stop.
(3)These requests can be made: at any point during the
course of interrogation.
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(4)The effect of invocation on police ability to re-initiate

questioning by approaching the suspect and requesting
a new Miranda waiver will turn on the Miranda right the
suspect invoked:
(a)Invoking the right to silence if a suspect invokes the
right to silence by cutting off questioning, police must
scrupulously honor this invocation. To resume
questioning:
1)Police must allow for: a significant period of
time to elapse, and
2)Obtain: a new Miranda waiver.
EXAM TIP: There is not set amount of time police must

wait before re-initiating questioning with a suspect who
invokes the right to silence. Factors that indicate they
scrupulously honored the invocation include passage of
a significant amount of time, different location, different
officers, different subject matter.
(b)Invoking the Miranda right to counsel. If a suspect

invokes the Miranda right to counsel, questioning must
cease immediately, and may not be re-initiated unless:
1)An attorney is present during the interrogation/reinitiation process, or
2)Defendant re-initiates the contact with police, and
executes a fresh Miranda waiver, or
3)Two weeks after the suspect is returned to his
normal environment police may re-initiate
questioning, but must first obtain a fresh Miranda
waiver.
(c)A Miranda invocation of either right is not offense

specific. That means that these re-initiation rules apply:
to any offense police seek to question about, even if it is
a different officer, from a different jurisdiction.
EXAM TIP: This is a critical distinction between the
Miranda right to counsel and the Sixth Amendment right to
counsel. Because it is non-offense specific, the Miranda
right is more protective.
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(5)Effect of a Miranda violation on subsequent confessions.
(a)Because a Miranda violation does not trigger the fruit of the
poisonous tree doctrine, a statement made in violation of Miranda:
normally does not taint a subsequent statement made after a valid
Miranda waiver, even if it repeats the same confession.
(b)However, police may not employ a question first, warn later tactic
to deliberately bypass the effect of Miranda warnings.
1) if the police deliberately elicit a confession from a suspect
during custodial interrogation without obtaining a valid Miranda
waiver, and then elicit a Miranda waiver in the middle of
questioning or immediately following questioning and have the
suspect repeat the confession: the waiver will be considered
invalid and the both confessions will be inadmissible in the
prosecution case in chief.

(1) Attenuation is the most common exception asserted to use a
statement resulting from a but for link to a constitutional violation
(poison tree). Effective attenuation will depend on how potent the
poison was: the more flagrant the constitutional violation, the harder
it is to attenuate.
(a)If an arrest is unreasonable because police failed to obtain a
required warrant, but nonetheless had probable cause, that
will normally be dissipated by a valid Miranda waiver: so long
as the statement is not elicited immediately after the arrest.
(b)If an arrest is unreasonable because police did not even
have probable cause, the taint is much more difficult to
dissipate, and will normally require: more than just a Miranda
waiver for the government to prevail on an attenuation
argument.
5. Fruit of the Poisonous Tree and Confessions.

a. If a but for connection exists between a prior
constitutional violation (normally an unreasonable
arrest) and a suspects statement, the statement
may be inadmissible fruit of a poisonous tree
unless the government can prove an exception,
even if it complies with the rules above.
EXAMPLE: Police have probable cause to arrest Joe, and

enter his house without a warrant to take him into custody.
Two hours later at the police station, a detective who was
not at the scene of arrest obtains a Miranda waiver from
Joe. Joe confesses to the crime during interrogation. This
Miranda waiver will likely be sufficient to prove the taint of
the warrantless arrest was dissipated or purged. Although
police did not have a warrant, they did have probable
cause and did not elicit the confession immediately after
the arrest.
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EXAMPLE: Police have a hunch Joe is a terrorist planning

a suicide bombing at a local shopping mall. Police see Joe
walking down the street, arrest him, and bring him to the
police station. Two hours later at the police station, a
detective who was not at the scene of arrest obtains a
Miranda waiver from Joe. Joe confesses to the bomb plot
during interrogation. This Miranda waiver will likely be
insufficient to prove the taint of the unlawful arrest was
dissipated or purged. Although a few hours passed and a
different officer conducted the interrogation, the arrest
without probable cause creates a more powerful taint and
requires more for dissipation.
IV. IDENTIFICATIONS
A. Identifications of a Defendant
1. The Due Process Standard: Applies to ALL types
of identifications, at ALL stages of the investigatory
and prosecutorial process.
a. If a defendant can prove that an identification
procedure used by the government was so
unnecessarily suggestive that it created an
irreparable risk of mistaken identification: the
procedure violates due process and the
identification may not be used at trial.
IV. IDENTIFICATIONS
IV. IDENTIFICATIONS
(1)the focal point of this due process test is reliability, which

requires defendant to prove both:
(a)That the procedures used were: unnecessarily suggestive,
and
(b)That the suggestiveness: produced an unreliable
identification.
EXAMPLE: A witness gives a description of a mugger. Police
show her a single photo. This procedure is unnecessarily
suggestive because the police could have easily shown her a
photo array. This alone is insufficient to violate due process. The
defendant must show that this unnecessarily suggestive method
produced an unreliable identification, which will turn on a totality
analysis of a number of factors.
b. The following factors are considered to assess whether

an unnecessarily suggestive procedure results in an
unreliable identification:
(1)The opportunity to view the criminal at the scene;
(2)The witnesss degree of attention;
(3)The accuracy of the witnesss description;
(4)The degree of certainty of the witness; and
(5)The time interval between the crime and the
identification (the longer the interval, the less
reliable).
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IV. IDENTIFICATIONS
IV. IDENTIFICATIONS
c. Use of inherently suggestive procedures because doing so is necessary

under the circumstances does not violate due process.
2. Violation of the Right to Counsel as a Basis to Exclude an

Eyewitness ID: (1) Applies ONLY to corporeal identifications
(human), and (2) ONLY after the initiation of formal
adversarial process (when the suspect becomes the
defendant).
a. Because the Supreme Court has held an out of court
corporeal identification procedure is a critical stage in
the adversarial process: defendant may not be subjected
to such a procedure without counsel present or a
knowing and voluntary waiver.
EXAM TIP: It does not matter why the defense lawyer is not
present at the out of court identification. Even if police act in total
good faith, and the lawyer is absent because of his how
negligence, conducting the lineup without his presence violates
the Sixth Amendment.
EXAMPLE: Police are investigating a brutal murder of one homeowner and the
attempted murder of his wife. The wife is in the hospital close to death. Police
arrest a suspect who matches the description of the assailant. They bring the
suspect to the victims hospital room in handcuffs to give her an opportunity to
identify him, which she does. Because only one suspect was presented to the
victim in handcuffs and in police custody, this procedure was highly suggestive.
However, because the victim was the only witness who could positively identify
the assailant, and because it was highly possible she might die, use of this
necessarily suggestive procedure did not violate due process.
d. When an out-of-court identification is excluded because it violates due
process a subsequent in-court identification by the same witness will almost
always be excluded as fruit of the poisonous tree.
IV. IDENTIFICATIONS
b. If police conduct a corporeal lineup in violation of the

Sixth Amendment right to counsel:
(1)The results of the lineup (the identification) are per se
inadmissible at trial.
(2)The witness will be prohibited from making a
subsequent in court identification of the defendant
unless the prosecution can prove: by clear and
convincing evidence that the in court identification is
independent from the out of court identification.
IV. IDENTIFICATIONS
EXAM TIP: The more inherently suggestive the out of

court identification, the more difficult it is to prove by clear
and convincing evidence it did not taint the subsequent in
court identification. Look to the same reliability factors for
due process to assess whether the in court identification is
independent from the out of court identification.
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IV. IDENTIFICATIONS
HYPOTHETICAL
Carlos is arraigned on a charge of robbery and placed in a lineup.
Two witnesses described the suspected robber as a 5-foot
Hispanic male with black hair and tan, and Carlos was the only
Hispanic in the lineup while four others were tanned males of
northern European descent with black hair, and all are 57 6.
One witness only had a brief look at the suspect at night, and did
not otherwise know him. The other said he recognized the robber
as an old high school friend named Carlos. Carlos lawyer is late
for the lineup and the police go ahead without her because they
dont want to inconvenience the witnesses. Both pick Carlos from
the lineup. Will they be able to testify that they identified Carlos in
the lineup when called as witnesses at trial? What about making an
in court identification of Carlos?
V. PRE-TRIAL PROCEDURES: CHRONOLOGY
b.Miranda warnings need not be given to potential

defendants (targets) testifying at a grand jury
proceeding because they are not in custody.
(1)
However, the target of the
investigation and all other witness may assert
the privilege against self-incrimination.
A.Grand Jury Indictment

1.The indictment is a written accusation stating
charges against the defendant issued by a grand jury
after it reviews the prosecutions evidence.
a.A grand jury is not an adversarial hearing, it is an
investigatory tool. Therefore:
(1)The target of the investigation has no right
to be present, and no right to assistance of
counsel if called to testify.
(2)The prosecution presents evidence to the
Grand Jury with no confrontation process.
(3)The prosecution has: no obligation to present
clearly exculpatory evidence to a grand jury.
B.Bail Hearing. The defendant is entitled to: an

individualized hearing to determine whether bail should
be granted or denied.
1.The purpose of bail is to secure the presence of
the accused at trial.
2.There is no constitutional right to bail. If bail will be
ineffective to secure the accused at trial, it may be
denied.
3.If bail is appropriate, it may not be excessive.
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VI. PRE-TRIAL RIGHTS
C. Plea Bargaining
1. A plea of guilty is the strongest form of proof known to the law. A
defendant may be convicted on his plea only.
a. The court must determine that the plea is voluntary and
intelligent. To be intelligent, the accused must be informed of
the general nature of the offense he is pleading guilty to.
b. Because a plea of guilty waives the right to trial by jury, the
right to confrontation and compulsory process, the privilege
against self-incrimination, and the presumption of innocence,
the court must determine that the waiver of these fundamental
constitutional trial rights is intelligent and voluntary [McCarthy v.
United States, 394 U.S. 459 (1969)].
2. A defendant may plead guilty without admitting guilt, called an Alford
plea. In such cases, other evidence (like police reports) must be
admitted to the record to support the courts finding of guilt.
A. The Right to a Speedy Trial

1. A right to a speedy trial is guaranteed by: the Sixth Amendment.
2. While most state statutes also include a speedy trial right: the
only remedy for a violation of the constitutional right to
speedy trial is dismissal with prejudice.
3. The speedy trial clock begins running: once a defendant is
accused by a formal charging instrument or is arrested and
held to answer for a crime.
a.Pre-arrest/pre-charge delays are not considered in speedy
trial analysis and there is no requirement to charge a
defendant immediately after report of a crime, although if pretrial delays are totally unjustified and result in prejudice they
may violate due process.
4. The primary interests served by the speedy trial rule are

accuracy and prevention of excessive pre-trial stigma.
The test for violation considers the following factors
[Barker v. Wingo, 407 U.S. 514 (1972)]:
a.Length of the delay:
(1)Normally a delay of: more than one year
normally triggers an inquiry;
(2)Defense requested delays, including
motions, are excluded from the duration
calculation.
b. Reason for the delay:

(1)A good reason is one that the prosecution has
no control over.
(2)A bad reason is one that the prosecution could
have avoided by due diligence;
c. Demand for speedy trial:
(1)While this is not essential, failing to do so
normally indicates: the defendant did not
consider the delay prejudicial;
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d.Prejudice to the defendant:

(1)The unreasonable delay normally must result in:
prejudice to justify dismissal.
(2)There are three types of prejudice, listed from
least to most significant:
(a)Anxiety;
(b)Oppressive pretrial incarceration;
(c)Degradation of evidence compromising the
accuracy of the trial.
5. Discovery
a. It violates due process for the prosecution to fail to
disclose to the defense evidence that is both
favorable and material:
(1)Favorable the disclosure trigger:
(a)If defense makes a discovery request, any
evidence that would tend to help the
defense is favorable;
(b)If defense fails to make a discovery
request, only evidence that is clearly
exculpatory is favorable.
(2)Material the remedy standard: if the prosecution fails to

disclose favorable evidence, a defendant is entitled to a
new trial (or sentencing) if that evidence was also
material.
(a)Material means: that evidence would have created a
reasonable probability of a different outcome.
(b)In other words, had it been disclosed: it would have
created reasonable doubt.
b. The prosecution is not required to disclose this

information to a criminal defendant prior to plea
bargaining or entering into a plea agreement with him.
c. Destruction of evidence held by the government violates
due process only where: the defendant can show bad
faith. Negligence or recklessness in handling the
evidence is insufficient.
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VII. GUARANTEES OF A FAIR TRIAL
A.The Right to Counsel at Trial

1. The right to counsel attaches to all critical stages of
the proceedings that affect the defendants right to a
fair trial (trial, preliminary hearing, corporeal
identifications, police questioning).
2. Absent waiver, a defendant may not be imprisoned for

any offense, whether classified as petty, misdemeanor,
or felony unless: he was represented by counsel.
a.This means the government must provide counsel to
indigent defendants whose cases meet this definition.
b.Note that the trigger for providing free counsel is
actual result: any trial that results in any confinement
triggered the requirement to provide defendant with
counsel.
VI. GUARANTEES OF A FAIR TRIAL
3. The right to counsel means the right to effective counsel.

Because courts presume that legal counsel is effective, it
is very difficult to prevail on an ineffective assistance of
counsel claim.
a. A defendant seeking a new trial based on a claim of

Ineffective Assistance of Counsel must prove both:
(1)That counsel was ineffective:
(a)Her performance: fell below a minimum standard of
lawyer conduct.
(b) For example sleeping in trial, failing to file a discovery
request, failing offer vital and clearly exculpatory
evidence; and
(2)Had the lawyer been effective: it would have created a
reasonable probability that the outcome would have been
different.
(3)In other words: based on the totality of the evidence,
effective representation would have created reasonable
doubt.
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EXAMPLE: Assistance of counsel is effective even when

the lawyer fails to present mitigating evidence, fails to
mount a case for life imprisonment, and waives final
argument during the sentencing phase of a death penalty
proceeding [Bell v. Cone, 535 U.S. 685 (2002)].
B.Jury Trial
1. The right to a jury trial attaches in any criminal
proceeding where the defendant faces a potential
sentence of: longer than six months.
a. Note that unlike the right to counsel, the right to a
jury is triggered by potential result: if the defendant
faces conviction of any single charge with a
minimum sentence of more than six months, she
is entitled to a jury trial.
2. Makeup of the Jury

a. The Jury Pool:
(1)The defendant has a right to a jury selected from
a fair cross-section of the community, which
means a jury pool that reflects: a fair cross section
of the ethnic and gender demographic of the
community.
(2)If the defendant can show that a distinct group
was systematically excluded from the jury pool,
he is entitled to a new trial.
b. The Petit (actual trial) Jury:

(1)There is no requirement to provide a fair cross
section of the community on the actual trial jury.
(2)However, the use of peremptory challenges to
exclude prospective jurors based on minority race or
gender: violates the Equal Protection Clause.
(a)Therefore, a party making a peremptory challenge
of a prospective minority juror will be required to
offer a race or gender neutral basis for the
challenge, and if that basis is unpersuasive: the
challenge will be denied.
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C.Confrontation
1. The Sixth Amendment provides defendant with: a
right to confront witnesses and evidence presented
against them.
2. The right to confrontation is triggered only by:
testimonial evidence: statements made in a context
where the witness would expect the statement to be
used in a criminal trial.
a. If the witness is telling the police or a 911 operator what

is happening in order to help them respond to an
ongoing emergency: it is not testimonial;
b. If the witness is telling the police or a 911 operator what
has happened as part of their investigation: it is
testimonial.
3. Confrontation is satisfied by subjecting the witness to

adversarial testing, which means: the witnesses
testimony is provided under oath and subject to crossexamination. [Crawford v. Washington].
a.Where the witness is called to testify at trial, this right
is satisfied, even if the defendant does not crossexamine the witness.
b.Where the witnesses prior testimonial statements
are offered as hearsay, it will violate the right to
confrontation unless the defendant had a prior
opportunity to subject the hearsay to adversarial
testing, for example at a prior preliminary hearing.
EXAM TIP: Remember, because a Grand Jury is not an adversarial

proceeding, the target has no opportunity to cross examine a witness
at a Grand Jury. Therefore admission of that witness's testimony at
trial against the defendant violates the Confrontation Clause.
EXAMPLE: a prior statement of a witness made during a preliminary
hearing is offered against the accused at trial pursuant to a hearsay
exception because the witness is unavailable. This does not violate
the Confrontation Clause because testimony at a preliminary hearing
is under oath and subject to cross-examination. Another prior
statement from a witness who testified at the Grand Jury that indicted
the accused is also offered as a hearsay exception because the
witness is unavailable. This statement violates the Confrontation
Clause, because although it was made under oath it was not subject
to cross-examination.
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VIII. DOUBLE JEOPARDY
A.Definition: The double jeopardy clause is intended to

prevent undue harassment and expense by eliminating
the risk of: a defendant being placed in jeopardy more
than one time for the same offense.
1. The Fifth Amendment provision ... nor shall any
person be subject for the same offense to be twice
put in jeopardy of life or limb applies to the states
through the Due Process Clause of the Fourteenth
Amendment [Benton v. Maryland, 395 U.S. 784
(1969)].
B.When Jeopardy Attaches

1. When a defendant moves to dismiss a charge based
on a violation of double jeopardy, she must establish
she had been in jeopardy for the: same offense by
the same sovereign previously.
2. Being previously charged is insufficient; the defendant

must prove jeopardy had attached previously:
a. In a non-jury trial: jeopardy attaches when the first
witness is sworn and the court begins to hear the
evidence.
b. In a jury trial: jeopardy attaches when the jury is
impaneled and sworn.
EXAM TIP: When a grand jury fails to indict a target or a

charge is dismissed prior to the jeopardy attachment point,
jeopardy has never attached and that target may again be
the subject of a grand jury investigation for the same
offense or the charge may be brought again.
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C.Same Offense
1. Two crimes occurring out of the same transaction are
considered the same offense, unless:
a. Each charge requires proof of: a separate criminal
impulse (a separate victim in a single transaction),
or
b. Each charge requires proof of: a separate factual
element.

EXAMPLE: D is charged with three counts of violating a federal
narcotics statute. The indictment alleges that during one
transaction, defendant sold oxycontin to two purchasers. Count
I alleges sale to purchaser 1 without a prescription in violation of
Section I of the statute. Count II alleges sale without a
prescription to purchaser 2 without a prescription. Count III
alleges sale to purchaser 2 without a tax stamp for the same
sale as Count II. Each of these three counts are separate
offenses for purposes of double jeopardy. Each purchaser is a
separate unit of prosecution even though the sales occurred
during the same transaction. The two counts arising from the
sale of the same oxycontin to purchaser 2 are separate
offenses because each requires proof of a different factual
element in order to convict.
D.Separate Sovereignties Doctrine

1. The double jeopardy prohibition does not prevent
dual prosecution by separate sovereigns. Therefore,
a defendant may: be prosecuted for the same
criminal conduct by a federal court and then by a
state court, or vice versa.
EXAMPLE: Major Nidal Hassan is tried by court-martial (a

federal military court) at Fort Hood, Texas for the murder
for 13 victims during his November 5, 2010 rampage at Fort
Hood. He is convicted and sentenced to life in prison.
Assume the area where he committed the killings is joint
federal and state jurisdiction. The state of Texas now wants
to prosecute him in order to seek the death penalty, and so
does the U.S. Attorney for that district. Texas may
prosecute him for the same criminal conduct because
Texas is a separate sovereign; if the U.S. Attorney indicts
him, the indictment will be dismissed on a double jeopardy
motion.
50

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1/11/16

KAPLAN BAR REVIEW

Multistate Bar Exam

KAPLAN BAR REVIEW

Multistate Bar Exam Criminal Procedure

KAPLAN BAR REVIEW

Multistate Bar Exam Criminal Procedure

KAPLAN BAR REVIEW

Multistate Bar Exam Criminal Procedure

2. Correctly apply the standards for probable cause,

4. Demonstrate the ability to argue both sides of the

KAPLAN BAR REVIEW

Multistate Bar Exam Criminal Procedure

I. INTRODUCTION TO CRIMINAL PROCEDURE

A.Systems of Criminal Procedure

I. INTRODUCTION TO CRIMINAL PROCEDURE

I. INTRODUCTION TO CRIMINAL PROCEDURE

c. The Sixth Amendment provides a person formally

2. Federal and State System

I. INTRODUCTION TO CRIMINAL PROCEDURE

B. Approach to a Criminal Procedure Question

II. THE FOURTH AMENDMENT

B. Seizure. The Fourth Amendments

II. THE FOURTH AMENDMENT

II. THE FOURTH AMENDMENT

(2) A seizure occurs when the police use physical

II. THE FOURTH AMENDMENT

b. Arrest is a maximum seizure, indicated by police

II. THE FOURTH AMENDMENT

(3) A Terry Stop is not the initiation of criminal action, it

II. THE FOURTH AMENDMENT

c. Terry Stop. A euphemism for a non-arrest seizure.

II. THE FOURTH AMENDMENT

2. Seizure of Property. Property is seized when police

II. THE FOURTH AMENDMENT

C. Search. A search triggers the reasonableness

II. THE FOURTH AMENDMENT

EXAM TIP: Remember, just getting to a place may qualify

II. THE FOURTH AMENDMENT

1. Investigatory trespass. Any government activity that

II. THE FOURTH AMENDMENT

2. Reasonable Expectation of Privacy. A person may

II. THE FOURTH AMENDMENT

II. THE FOURTH AMENDMENT

EXAM TIP: A person does not have a REP in something

Example 1: A person in a closed telephone booth does

II. THE FOURTH AMENDMENT

II. THE FOURTH AMENDMENT

Example 2: A police officer standing on the toilet in a

c. There is no reasonable expectation of privacy when the

II. THE FOURTH AMENDMENT

II. THE FOURTH AMENDMENT

d. Police use of animals trained to detect only contraband

Example: If police use a dog trained to detect the scent of

Use of commonly available equipment to enhance the

II. THE FOURTH AMENDMENT

II. THE FOURTH AMENDMENT

e. A defendant does not have a reasonable expectation of

(6) conversations the suspect believes are private the

II. THE FOURTH AMENDMENT

(7) Open fields: unoccupied areas beyond the curtilage of

II. THE FOURTH AMENDMENT

3. When the government uses a device that is not in

II. THE FOURTH AMENDMENT