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Criminal Law

Published on October 2018 | Categories: Documents | Downloads: 2 | Comments: 0



CRIMINAL LAW & PROCEDURE 1. OVERV ERVIEW IEW a. Essent Essential ial elem element ent of of crimes crimes i. Ac Actt requ requir irem emen entt ii. ii. Mens Mens rea rea (me (menta ntall stat state) e) iii. Causati ation iv. iv. Conc Concurr urren ence ce princ princip ipal al b. Speci Specific fic crim crimes es i. Again gainst st pers perso on ii. Property rty c. Liabili Liability ty for for cond conduct uct of othe others rs i. Ac Acco comp mpli lice ce liabi liabili lity ty d. Inchoat Inchoate e (incom (incomple plete te)) offenses offenses i. Soli Solic citat itatio ion n ii. Consp spiiracy acy iii. Attempt e. Defens fense es i. Insanity ii. ii. Volu Volunt ntary ary int intox oxic icat atio ion n iii. Infancy iv. Mistake v. Sel Self-de f-defe fen nse vi. Nec Necessit sity vii. Duress viii viii.. Entr Entrap apm ment ent 2. Prelim Preliminar inary y matter matters: s: a. Juri Jurisd sdic icti tion on i. Crime Crime may may be prosecuted prosecuted in in any state where where an act that was part of the crime took place; or the result took place b. Bu Burd rde en of proo proof  f  i. P must must prove prove each each eleme element nt of the the crime crime beyond beyond a reasonable doubt c. Defe Defense nses: s: 2 type types s i. “Defenses” “Defenses” – P must must prove prove beyond beyond a reasonable reasonable doubt ii. Affirm Affirmati ative ve defen defenses ses – D must must prove prove by a preponderance of evidence d. Classif Classifica icatio tion n of crime crimes s i. Felony Felony:: crime crime punish punished ed by more more than than 1 yr in in prison prison ii. Misdemea Misdemeanor: nor: crime crime for which which maximu maximum m punishm punishment ent may not exceed 1 yr in prison 3. Essent Essential ial Elem Element ents s of Crime Crime a. Physical Physical acts acts (comm (commissi issions) ons) i. All bodily moveme movements nts are physical physical acts acts that that can can be





basis for criminal liability provided they are voluntary ii. Involunt Involuntary ary does does not equa equall crimina criminall acts acts 1. One that that is not the the product product of the the actors actors volition volition 2. Sleep Sleep walking walking (not (not falling falling asleep) asleep) or or otherwise otherwise conscious conduct 3. Refle Reflex x or convul convulsio sion n (seizur (seizure) e) Omissions: Omissions: failure failure to to act can can also be basis basis for crimina criminall liability provided: i. Legal du duty by statute; K; status relationship; voluntary assumption of care; creation of peril ii. Knowle Knowledge dge of facts facts g givin iving g rise rise to duty duty iii. iii. Ab Abil ilit ity y to to hel help p Commo Common n law law Ment Mental al stat states es i. Specific Specific intent: intent: not just just the the desire desire to do the act but but also desire to achieve a specific result 1. Defe Defens nse es = a. Volunt Voluntary ary intoxi intoxicat cation ion b. Unreas Unreasona onable ble mist mistake ake of of fact ii. Malice: Malice: D acts intent intentionall ionally y or with with reckles reckless s disregard disregard of an obvious known risk iii. General General intent: intent: D need need only only be gene generally rally aware aware of  of  factors constituting the crime; he need not intend a specific result iv. Strict liability: liability: when when crime requires requires simply simply doing doing the the act; no mental state needed NY Mental Mental States States (Model (Model Penal Code) Code) i. Intent Intent (Purpo (Purpose) se) when when D consc consciou ious s desire desire to accomplish a particular result (D wants to do) ii. Knowledge Knowledge:: D aware aware of of what he is doing; with respect respect to a result, when D is aware that its practically certain that his conduct will cause that result iii. iii. Reckle Recklessne ssness: ss: D is aware aware of a subst substant antial ial and and unjustifiable risk, and consciously disregards that risk iv. Neglig Negligenc ence: e: when when D should should have have been been aware aware of a substantial and unjustifiable risk v. Strict liability: liability: no no mental mental state required required (simi (similar lar to common law) Causat Causation ion (2 (2 TypesTypes- Need Need both! both!)) i. D is an an actual actual cause cause (cause (cause-in-fac -in-fact) t) if bad result result would would not have happened but for D conduct 1. Exception: Exception: “acceleratin “accelerating g cause: cause: is is an actual actual cause ii. Proximate Proximate (legal) (legal) causation: causation: D is proximate proximate cause if  the bad result is natural and probable consequence of  D’s conduct 1. D not be cons conside idered red proxi proximat mate e if an

unforeseeable intervening even causes bad result BUT EGG SHEEL VICTIMS! f. Concurrence: D must have required mental state at the same time he engages in the culpable act 4. CRIMES AGAINST THE PERSON a. Common Law: i. Battery: unlawful application of force to another resulting in either bodily injury or offensive touch 1. Mental: General Intent ii. Assault: attempted battery or intentional creation other than by mere words of a reasonable fear in the mind of the victim of imminent bodily harm 1. Mental = Specific Intent 2. NY Mental = Intentionally causing (mental state) physical injury to another person b. Degrees of Crimes: for each crime memorize one degree and make an educated guess as to others i. Know 3 typical factors: 1. Weapons: add a gun, add a degree 2. Injury physical injury; serious physical injury; permanent or life threatening injury 3. Quantity (money, drugs) kicks it up or down c. ASSAULT: i. 2nd degree: intentionally causing serious physical injury 1. 1st degree = intentionally causing serious physical injury (so 2nd degree +) a weapon 2. 3rd degree = intentionally causing non-serious physical injury ii. Battery is NOT a separate crime in NY 1. ALL VERSIONS OF ASSAULT REQUIRE INJURY (NO “OFFENSIVE TOUCHING” VERSION LIKE COMMON LAW BATTERY) 2. Attempted assault in NY requires the intent to assault – merely creating a “reasonable apprehension” (w/o intent to actually injure = different crime, MENACING) d. CRIMES AGAINST THE PERSON: HOMICIDE i. Common Law: Death must occur w/in a year-and-a day of homicidal act 1. NY- Death may occur at any time ii. Common Law Homicide Crimes – 1. Murder: causing the death of another person with malice aforethought a. Mental: “Malice Aforethought” satisfied id D has any of the following

i. Intent to kill ii. Intent to inflict serious bodily injury iii. Deprave Heart (extreme recklessness meaning reckless indifference to human life or having an abandoned or malignant part” iv. Intentional commission of  dangerous felony = FELONY MURDER b. Intent to Kill: intentional use of a deadly weapon creates an inference of an intent to kill i. ****Transferred Intent**** ii. Transferred intent does not apply attempts, only to crimes with completed harms c. Statutory Variations: i. 1st degree Murder: any killing committed with premeditation and deliberation; felony murder if  following enumerated ii. First Degree: an intent to Kill; and D is more than 18 years old; and at least one aggravating factor 1. Victim is law enforcement officer engaged in official duties at time of killing 2. D committed murder for hire 3. Felony murder where victim intentionally killed 4. Killing for purpose of witness intimidation 5. More than one victim intentionally killed in same criminal transaction nd iii. 2 Degree: intentional Killing that does not qualify for 1st degree (premeditation and deliberation irrelevant) 1. Highly reckless killing demonstrating depraved indifference to human life by engaging in conduct that creates a grave risk of death generally involving more than one victim

2. Felony murder: where victim is not a co-felon and killed intentionally iv. Felony murder: any killing caused during the commission of or attempt to commit a felony 1. D must be guilty of underlying felony: D need not be convicted of the felony as long as there is sufficient evidence that he committed it felony must be inherently dangerous: “BRAKES”  a. B = BURGLARY b. R = ROBBERY c. A = ARSON d. K = KIDNAPPING e. E = ESCAPE f. S = SEXUAL ASSAULT 2. Felony must be separate from killing itself  3. Take place during the felony or during immediate flight from felony (temporary safety = felony ended) 4. Death Foreseeable 5. Victim not co-felon 6. Vicarious Liability: if one cofelon causes death, all of  other co-felons guilty of  felony murder even if actual killing committed by third person so long as one of the felons is “proximate cause” of  death v. Non-Slayer Defense: affirmative defense to felony murder if  1. D did not kill victim 2. D did not have deadly weapon 3. D had no reason believe his co-felons had deadly weapon 4. D had no reason to believe that his co-felons intended to do anything likely to result in death

2. Voluntary Manslaughter: an intentional killing committed in heat of passion after adequate provocation a. Adequate provocation = i. Objectively adequate – arouse a sudden intense passion in mind of a reasonable person ii. D actually provoked iii. D did not have time to cool-off  iv. D did not actually cool-off between provocation and killing b. Extreme Emotional Disturbance (EED): an intentional killing committed under the influence of a reasonable and extreme emotional disturbance i. EED acts as affirmative defense to 2nd degree murder which means D must prove EED by preponderance of evidence 3. Common Law Involuntary Manslaughter: gross deviation from reasonable standard of care a. Killing committed with criminal negligence or a killing that was committed during crime that does not qualify for felony murder (misdemeanor manslaughter) 4. Manslaughter In NY a. 1st degree: EED manslaughter OR and intent to cause serious physical injury b. 2nd degree: i. Mental = recklessness ii. D is aware and consciously disregards a substantial and unjustifiable risk of death 5. Criminally Negligent Homicide a. Mental = Criminal negligence b. D should have been aware of a substantial and unjustifiable risk of death 6. Aggravated Homicide a. Homicide =when V is a police officer Killed in line of duty b. Murder (new provision): D over age of 18 causes death of child under 14 in an especially cruel and wanton manner 7. REMEMEBER TO DRAW IN TABLE!!!!!!!

5. CRIMES AGAINST PERSON – CONFINEMENT & SEX OFFENSES a. Confinement Offenses: i. False Imprisonment: unlawful confinement of a person w/o consent 1. Mental = general intent ii. Unlawful Imprisonment: 1. 2nd degree: unlawfully restraining someone w/o their consent and with knowledge that the restriction is unlawful 2. 1st degree = unlawfully restraining someone w/o their consent and with knowledge that the restriction is unlawful (so 2nd degree +) + risk of  serious physical injury iii. Kidnapping: false imprisonment that involves either moving the victim or concealing the victim in a secret place 1. General intent iv. Kidnapping: 1. 2nd degree: abducting someone 2. 1st degree: abducting someone (so 2nd +) AND a. Ransom b. Restraint of victim for more than 12 hours with intent to rape, injure or rob the victim; OR c. Death of victim v. Reminder: Kidnapping and Homicide 1. If victim is killed accidentally = 2 nd degree murder (FELONY MURDER) 2. If victim is killed intentionally during a

kidnapping of the 1st degree = murder b. Sex Offenses i. Forcible rape: sexual intercourse w/o victim consent accomplished by force, threat of force, victim is unconscious 1. Mental = general ii. Statutory Rape: sexual intercourse with someone under the age of consent 1. Mental = strict liability 2. MPC/Minority Rule = reasonable mistake of age is a defense 3. Age of consent = 17 & D needs to be at least 21 6. CRIMES AGAINST PROPERTY (theft-related) a. Common Law Theft Crimes i. Larceny: Trespassory taking & Carrying away the tangible personal Property of another with intent to permanently retain the property 1. Thieves Picked Charlies Pocket Inside the  Airport Terminal”  a. Trespassory = wrongful or unlawful b. Taking and Carrying Away  c. Tangible Personal Property of Another  d. With the Intent to Permanently Retain Property: If D intends to give back, taking is not a larceny 2. Erroneous takings Rule: taking under a claim of  right is never larceny, even if D erroneously believes property is his 3. Continuing Trespass: D wrongfully takes property w/o intent steal ≠ larceny. But if D later forms intent the initial trespassory taking considered to have continued and will be guilty of larceny ii. Embezzlement: conversion of personal property of  another by a person already in lawful possession of  that property with intent to defraud 1. Mental = specific intent to defraud (if D intends to give exact property back in exact form, he will not have intent to defraud) a. D must already have lawful possession of  property before a taking can be considered embezzlement i. Lawful possession is more than mere custody. It requires the authority to exercise discretion over

property iii. False Pretenses: obtaining title to the personal property of another by an intentional false statement with intent to defraud 1. Larceny D gets only custody false pretenses D gets title (ownership) a. False statement must be past or present even NOT a future promise iv. Larceny by Trick: D obtains only custody (not title) as result of intentional false pretenses v. Robbery: a larceny from another’s person or presence by force or threat of immediate injury 1. Mental = specific intent vi. Forgery: making or altering a writing so that it is false 1. Mental = intent to defraud b. NY THEFT CRIMES i. Larceny: any crime that would be larceny, embezzlement, false pretenses or larceny by trick @ common law = LARCENY 1. Degrees: a. 1st = million b. 2 = 50k c. 3rd = 3k d. 4th = 1k e. Petit = less than 1k ii. Robbery: 1. 3rd degree = forcible stealing 2. 2nd degree = forcible stealing + a. D aided by someone actually present; or b. Victim is injured; or c. Car is stolen (carjacking) st 3. 1 degree: forcible staling + a. Victim is seriously injured; or b. Uses or displays a firearm i. Affirmative defense: If D can prove that the gun was unloaded or inoperable, crime reduced to 2nd degree 4. Robbery and Homicide: (enumerated) a. 2nd degree murder if victim is killed accidentally = felony murder b. 1st degree murder = if victim is intentionally killed c. Possession Offenses: when statute criminalizes the possession of contraband “possession” means: control for a  period of time long enough to have an opportunity to

terminate i. Constructive possession = diminuion and control over it ii. Mental state = knowledge (of the possession and character of item) 1. Examples: a. Drugs: criminal possession controlled substance b. Firearms c. Criminal possession of weapon (gun must be loaded and operable) i. Possessors of gun in vehicle creates a presumption that all occupants of  vehicle possess the gun d. Stolen property: criminal possession of  stolen property 7. CRIMES AGAINST PROPERTY: HABITATION a. Burglary: breaking and entering the dwelling of another at night with intent to commit felony inside (does not include climbing through already open window BUT inside push open door = breaking) i. Constructive breaking: entry gained by fraud threat intimidation ii. Intent commit felony = specific intent crime (intent to steal, rob, rape, assault, kill etc) b. NY Burglary: i. 3rd degree = entering or remaining unlawfully in a building with intent to commit a crime inside ii. 2nd degree = entering or remaining unlawfully in a building (so 3rd degree +) + building is dwelling or non-participant is injured or D carries a weapon iii. 1st = D knows he is burglarizing a dwelling and nonparticipant injured or D carries a weapon c. Arson: malicious burning of a building i. Mental = malice ii. Burning requires material waste and must be building itself that burns d. Arson: i. 4th= Reckless burning of building ii. 3rd = intentional burning of building iii. 2= intentional burning of building (so 3rd degree +) + when D knew or should know someone inside building iv. 1st = intentional burning of a building when D knew or should know that someone inside building (2nd degree +) + explosive or incinary device 8. LIABILITY FOR CONDUCT OF OTHERS: ACCOMPLICE

a. Definitions: i. Principal = person who commits crime ii. Accomplice = person who helps iii. Act = aid or encourage D iv. Mental = intent crime be committed b. ACCOMPLICE NEED NOT SPECIFICALLY INTENT THAT CRIME BE COMMITTED. INTENDING TO AID D CONDUCT IS ENOUGH. THEREFORE, POSSIBLE TO BE AN ACCOMPLICE TO NEGLIGENCE OR RECKLESSNESS CRIME c. Scope: accomplice is guilty of all crimes that he aided or encouraged and all other foreseeable crimes committed along with aided crime i. Not an accomplice mere presence or mere knowledge d. NY REQUIRES INTENT FOR ACCOMPLICE LIABILITY BUT MERE KNOWLEDGE CAN MAKE SOMEONE GUILTY OF LESSER CRIME OF CRIMINAL FACILITATION e. WITHDRAWL: i. Encourager may with draw by discouraging the crime ii. Aider must neutralize the assistance or prevent crime from happening f. RENUNCIATION: accomplice must make a substantial effort to prevent the commission of the crime i. Affirmative defense and burden on D g. Accessory after the fact: D must help a principal who ahs committed a felony with knowledge that the crime has been committed, and with intent to help the principal avoid arrest or conviction h. OBSTRUCTION OF JUSTICE; HARBORING A FUGITIVE; HINDERING PROSECUTION 9. INCHOATE OFFENSES: a. THREE INCHOATE OFFENSES: i. Solicitation: asking someone to commit a crime with intent that crime be committed 1. Mental = specific intent 2. Completion unnecessary ii. Conspiracy: agreement between two or more people to commit a a crime + an overt act in furtherance of  crime 1. “Overt” = any act even if merely prepatory 2. Mental = specific intent 3. Completion UNNECESSARY 4. IF ALL PARTIES TO AGREEMENT ARE AQUITTED  THE LAST REMAINING D CAN NOT BE CONVICTED 5. UNILATERAL APPROACH: D MAY BE GUILTY OF CONSPIRACY EVEN IF OTHER PARTIES ARE

AQUITTED OR WERE JUST PRETENDING TO AGREE 6. WHARTON RULE: (NY) when 2 or more people necessary to commit a substantive offense there no conspiracy unless more parties participate in the agreement than necessary for crime 7. PINKERTON (VICARIOUS) LIABILITY: in addition to conspiracy D will be liable for other crimes committed by co-conspirators, so long as: in furtherance of conspiracies objective and were foreseeable 8. No vicarious liability for one who merely conspires and does not participate in a crime committed by co-conspirator 9. Impossibility NEVER defense to conspiracy iii. Attempt: overt act, beyond preparation; conduct that gets very close to the commission of a crime; conduct that constitutes a substantial step towards the commission of the crime provided that the conduct strongly corroborates actors criminal purpose 1. Mental = specific intent a. Cant attempt unintentional crimes, therefore, no attempt versions of  recklessness, negligence or felony murder 2. Factual impossibility: physical/ factual condition prevents  never defense 3. Legal: legal circumstance or status is a defense NOT in NY b. INCHOATE OFFENSE DOCTRINES i. Withdrawal; Renunciation; Abandonment 1. Solicitor, co – conspirator or attempter changes his mind? a. Withdrawal not a defense BUT once D withdraws from conspiracy no longer VL for crimes committed by his coconspirators after he left BUT guilty of  conspiracy and all foreseeable crimes prior to withdrawal b. Defense only if: D completely and voluntarily renounces based on “change of heart” NOT fear of failing or being caught ii. MERGER RULES: 1. SOLICITATION AND ATTEMPT MERGE WITH COMPETED CRIME / SOLICITATION DOES NOT


MERGE 2. CONSPIRACY DOES NOT MERGE DEFENSES a. Capacity Defenses: i. Insanity: mental disease or defect 1. M’Naghten Test: (majority) If D did not known that his act was wrong or did not understand nature of his act 2. Irresistible Impulse: D either unable to control actions; OR unable to conform to conduct to law 3. MPC test: D lacked substantial capacity to either: appreciate the criminality of his conduct; OR conform his conduct to requirements of law 4. D must prove he lacked substantial capacity to either: understand the nature of his acts; OR appreciate the wrongfulness of his conduct 5. Insanity = time of crime = not guilty 6. Incompetency = time of trial = postponed ii. Voluntary Intoxication: can be a defense to specific intent crimes only. Therefore, not to malice, general intent, or strict liability 1. It requires such a sever “prostration of the faculties” that D cant form requisite specific intent 2. Can be a defense to intent crimes and knowledge crimes, if intoxication prevents D from forming required state of mind CANT TO CRIMES RECLESSNESS, NEGLIGENCE OR STRICT LIABILITY iii. INFANCY 1. Under 7 = no prosecution allowed 2. Under 14 = rebuttable presumption against prosecution 3. 14 and up = prosecution allowed 4. Under 13 = criminal prosecution as an adult not allowed  Juvenile Delinquency 5. 14 or 15 = criminal prosecution allowed for serious crimes against persons or property 6. 16 and up = criminal prosecution allowed for any crime b. Other Defenses i. Mistake: 1. Of fact: if mental state specific than any mistake will be defense / malice or general intent then only reasonable mistake/ strict liability mistake never defense

2. CRIMES OF PURPOSE, KNOWLEDGE, RECKLESSNESS ANY MISTAKE OF FACT 3. NEGLIGENCE ONLY REASONABLE MISTAKE 4. STRICT LIABILITY NEVER DEFENSE 5. MISTAKE OF LAW: ONLY IF STATUTE SPECIFICALLY MAKES “KNOW O THE LAW” ELEMENT OF CRIME ii. Self- Defense: 1. Deadly vs. Non Deadly Force a. Non-Deadly: reasonably necessary to protect against immediate use of unlawful force against himself  b. Deadly imminent threat of death or serious bodily injury i. Initial aggressor Rule: D cant if  initial BUT can regain if: he withdraws from fight; OR victim suddenly escalates non-deadly  deadly ii. Initial aggressor must withdraw before resorting to deadly self  defense, even if other party suddenly escalates a non deadly fight into a deadly fight c. D mistaken about need to use self  defense? I. REAONABLE MISTAKE = COMPLETE DEFENSE ii. Unreasonable mistake – NO 1. Minority / MPC = mitigate liability iii. “IMPERFECT SELF-DEFENSE” unreasonable belief in need to use deadly force in self defense will mitigate murder to (voluntary) manslaughter iv. Use of force prevent crime 1. Non-deadly = any crime 2. Deadly = prevent felony risking human life a. Deadly force may be used to prevent burglary if D inside home 3. Resisting arrest: unlawful arrest D may use non-deadly

force / force may NOT be used to resist arrest even an unlawful one unless arresting officer uses excessive force 4. Necessity: a. Defense to criminal conduct if D reasonably believed that his conduct was necessary to prevent a greater harm (not a defense to homicide) b. Harm avoided must be greater then harm caused – necessity CAN be defense to homicide 5. Duress: defense if D was forced to commit a crime b/c of threat from another person of imminent death or serious bodily injury to himself or to close family member a. NOT TO HOMICIDE- YES! 6. ENTRAPMENT: a. CRIMINAL DESIGN ORIGINATED WITH GOVERNMENT and D WAS NOT PREDISPOSED  TO COMMIT THE CRIME

CRIMINAL PROCEDURE I. FOURTH AMENDMENT (ISSUE # 1) 1. WAS THE SEARCH OR SEIZURE EXECUTED BY A GOVERNMENT AGENT? YES  2. WAS THERE A REASONABLE EXPECTATION OF PRIVACY IN AREA SEARCHED OR ITEM(S) SEIZED THAT WAS INVADED BY GOVERNMENT AGENT? i. Two Prong Test: implicate 4th amendment search and seizure of person, houses, paper or effects by government agents must invade individuals reasonable expectation of privacy a. Individual must have exhibited an actual or subjected expectation of privacy in the area searched or item(s) seized; AND

b. Privacy expectation must be “one that society  recognizes as reasonable”  c. UNPROTECTED ITEMS: “PATTY ACHIEVED A GLORIOUS VICTORY OVER HER OPPONENTS”  a. Paint scrapings on outside of your car b. Account records held by a bank c. Airspace- anything that can be seen below while flying in public airspace d. Garbage left at curb for collection e. Voice f. Odors (emanate from car or luggage) g. Handwriting h. Open Fields: anything can be seen in or across the open fields ii. Challenging Search or Seizure: to have “standing” to challenge the lawfulness of a search and seizure by government agent, an individuals personal privacy rights must be implicated a. Owners of premises b. Resident of premises c. Overnight gusts as to areas overnight guests can be expected to access d. Never for business purposes e. If own property seized  only if they have a reasonable expectation of privacy in the area from which property seized f. Passengers in cars only if they have a reasonable expectation of privacy in the area searched or item seized a. A passengers effects are considered part of the vehicle for purposes of automobile searches; therefore, if search valid, passenger will lose the challenge b. Passengers can challenge possession of  weapons, if possession is attributed to them II. FOURTH AMENDMENT (ISSUE # 2): DOES THE SEARCH WARRANT UNDER WHICH CRIMINAL EVIDENCE WAS GATHERED SATISFY 4 TH AMENDMENT REQUIREMENTS? 1. Questions to ask. i. IS the warrant supported by probable cause (PC) and particularity? ii. If not, did police officers rely on a defective warrant in “good faith” a. NY rejects good-faith doctrine iii. Did the police properly execute the warrant?

2. QUESTION ONE: DO PC AND PARTICULARITY SUPPORT THE WARRANT? i. PC a. Majority: “fair probability” that contraband or evidence of crime will be found in area searched, based on preponderance of evidence a. Anonymous tips magistrate to make “common sense practical” determination that PC exists b. Aguilar – Spinelli: informants basis of knowledge and his veracity or reliability 3. QUESTION TWO: DOES AN OFFICERS “GOOF FAITH” SAVE A DEFECTIVE WARRANT? YES, with 4 exceptions i. Affidavit supporting the warrant application is so egregiously lacking in PC that no reasonable officer would have relied on it ii. Warrant so facially deficient in particularity that officers could not reasonably presume it to be void iii. Affidavit relied upon by magistrate contains knowing or reckless falsehood that are necessary to PC finding iv. Magistrate who issue warrant is biased in favor of P 4. QUESTION THREE: WAS THE SEARCH WAARANT PROPERLY EXECUTED BY POLICE? i. Whether officer executing warrant complied with its terms and limitations; AND a. In executing the warrant, officers are allowed to search only those areas and items authorized by language of warrant ii. Whether officers executing warrant complied with “Knock and Announce” rule (K&A) a. Requires “K & A” their presence and purpose before forcibly entering place to be searched. UNLESS, reasonably believes doing so would be futile or dangerous or inhibit the investigation III. FOURTH AMENDMENT (ISSUE THREE): IS WARRANTLESS SEARCH  THOUGH WHICH CRIMINAL EVIDENCE WAS GATHERED VALID UNDER ANY OF THE 8 EXCEPTIONS TO WARRANT REQUIREMENT? “ESCAPIST” = Exigent Circumstances; Search Incident to Arrest; Consent: Automobile; Plain View; Inventory; Special Needs; Terry  “Stop & Frisk”  1. Exigent Circumstances: i. Evidence would dissipate or disappear in the time it would take to get a warrant ii. Hot pursuit of fleeing felon: police may enter suspects home or that of a TP in which he has fled- During hot pursuit any evidence of crime discovered in plain view





while searching for suspect admissible iii. Emergency Aid: objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury Search Incident to Arrest: (Lawful) i. Search must be contemporaneous in time and place with the arrest ii. Wingspan, which includes body, clothing and containers within arrestee’s immediate control without regard to the offense for which arrest made. To search containers within wingspan police must suspect the arrestee is armed iii. FOR AUTOMOBILES: interior cabin including closed containers but not the trunk. One officer “secured” an arrestee officer can search arrestee’s vehicle ONLY if  she has reason to believe vehicle may contain evidence relating to crime for which arrest made. Once occupant out of the car police CAN NOT search closed containers, or bags inside vehicle to look for weapons or evidence of crime Consent: must be voluntary and intelligent. Police do not need tell someone that she has right to refuse consent. i. Apparent authority: if cop obtains consent from someone who lacks “actual” authority… consent still valid provided cop reasonably believed consenting party had actual authority ii. Adults share premises any and all can consent to common areas BUT if disagree the objecting party prevails as to areas over which share dominion and control Automobile: PC to believe contraband or evidence of crime will be found in vehicle i. Can search entire vehicle, open any package, luggage, or other container that may reasonably contain the item(s) for which there was PC to search a. Traffic stop: search of all or part of vehicle: officer does not need PC at time car is pulled over provided he acquires it before initiating the search Plain View: 3 requirements i. Lawful access to place from which the item can be plainly seen ii. Lawful access to item itself  iii. Criminality of item must be immediately apparent iv. Plain view seizure of obscene material requires prior  judicial authorization

6. Inventory searches: arrestees when booked and vehicles when impounded i. Regulations governing them are reasonable in scope ii. Search itself comply with regulations iii. Search conducted in good-faith motivated solely by need to safe guard the owners possession and/or ensure officer safety 7. Special Needs i. Random drug testing: railroad employees following an impact incident; custom agents responsible for drug interdiction; and public school children who participate in extracurricular activities a. Suspiciousness drug tests are not permitted where their primary purpose is to gather criminal evidence for general use by law enforcement ii. Govt employees desks and files to investigate work related misconduct iii. Students “effects” in public school to investigate violations of school rules iv. Boarder searches NO 4 TH A rights with respect to routine searches of person and effects 8. Terry Stop & Frisk i. Terry Stop = brief detention or seizure for purpose of  investigating suspicious conduct a. Seized for 4th when… based on Totality of  Circumstances (TOC) a reasonable person would not feel free to leave or to decline an officers request to answer questions a. Did officer brandish a weapon? Tone and Demeanor or individual told she had right to refuse consent? b. Police pursuit and seizure: federal pursued by cop an individual is seized only if submits to officer’s authority by stopping or if the officer physically restrains them. Police Pursuit is a SEIZURE in itself  c. “Seizure” and traffic stops: both driver and passenger are seized such that either can challenge legality of stop dog sniff permissible provided the “sniff” does not prolong the stop unreasonably ii. Terry Frisks: pat down of body and outer clothing for weapons that is justified by cop belief armed and dangerous

a. ITEMS: a. Weapons always seized b. Contraband only if not manipulated c. Only if feels like a weapon b. Car Frisks: if cop believes suspect is dangerous he may search passenger cabin of suspects vehicle, limited to those areas in which a weapon may be placed or hidden c. Protective sweeps: when making an in-home arrest, police may “sweep” the residence to look for criminal confederates of the arrestee whose presence may threathen officer safety

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