Criminal Procedure (BARBRI)
Final Paper – Fully Solved Questions for Revision
4th Amendment: Search and Seizure - Whether search and seizure falls under 4th AM must
affirmatively answer all:
i. Was the invasion upon an area/item protected by 4th AM
ii. Did Government agent
1. Physically intrude protected area/item to obtain information or
2. Violate individual's reasonable expectation to privacy in protected area/item
iii.Did individual have authority/standing to challenge government agent conduct?
The 4th AM Protects: - 1. Persons (body)
2. Houses (hotel rooms) + Curtilage (area of domestic use immediately surrounding house)
3. Papers
4. Effects (wearing/carrying/cars/purses)
The 4th AM Does NOT Protect: - Generally: anything public in nature, routinely exposed to 3P
1. Account records (banks)
2. Public airspace
3. Garbage (curbside)
4. Odors (emanating from car/luggage)
5. Open fields (in or across)
Government Agent: Physical Intrusion or Privacy Expectation Violation - i. Remember Jones
Case: GPS device tracking car's movement was violation b/c car is protected and was done to
obtain information on movement of car
,ii. Reasonable Expectation Privacy Test
1. Individual must show actual/subjective expectation to privacy of area
2. Expectation must be recognized as reasonable by society (most important requirement)
iii. Device not in public use
1. Searches are presumptively unreasonable when a device not in public use is used to explore
details of home that could not have been known without physical intrusion (thermal sensor)
Standing/Authority - Must have standing to challenge lawfulness of government conduct
1. Individual's own privacy rights must be implicated
Standing Includes: - 1. Owners and renters of premises
2. Guests of premises in areas overnight guests are expected to be (common area)
3. Ownership of seized property SO LONG AS owner has reasonable expectation to privacy of
area it was seized
Standing Does NOT Include: - 1. Brief commercial contact (one time visit, friends using
apartment)
2. Ownership of seized property that has no reasonable expectation to privacy of area it was
seized
3. Passenger of car (no reasonable expectation to privacy)
Was the Government Agent's Action Constitutional? (With Search Warrant) - Warrant Must:
1. Issued by neutral and detached magistrate
2. Supported by probable cause and particularity or if defective police must rely in good faith
3. Properly executed by police
, Neutral and Detached Magistrate - Conduct must not demonstrate bias in favor of prosecution
Probable Cause and Particularity Gates Test (Modern) - Probable cause requires proof of fair
probability contraband or evidence of crime will be found in area searched.
Hearsay can be used to furnish PC
Informant Testimony:
1. Informant tips may be used to furnish PC even if anonymous
2. Sufficiency of the tip turns on corroboration by the police of enough of the tipster's
information to allow magistrate to make "common sense practical determination" that probable
cause exists based on the totality of the circumstances.
Probable Cause Aguilar Spinelli Test (Stricter/Former) - Probable cause based on information
from informant is ok so long as prosecutor shows two elements:
1. Informant's basis of knowledge
2. Informant's reliability or veracity
Particularity - Requires search warrant to specify two things:
1. Place to be searched
2. Item to be seized
When there is an issue with a warrant: - Good Faith Doctrine saves defective search warrants
UNLESS one of the categorical exceptions to the Good Faith Doctrine exists
1. If affidavit supporting the warrant is so egregiously lacking in probable cause
Final Paper – Fully Solved Questions for Revision
4th Amendment: Search and Seizure - Whether search and seizure falls under 4th AM must
affirmatively answer all:
i. Was the invasion upon an area/item protected by 4th AM
ii. Did Government agent
1. Physically intrude protected area/item to obtain information or
2. Violate individual's reasonable expectation to privacy in protected area/item
iii.Did individual have authority/standing to challenge government agent conduct?
The 4th AM Protects: - 1. Persons (body)
2. Houses (hotel rooms) + Curtilage (area of domestic use immediately surrounding house)
3. Papers
4. Effects (wearing/carrying/cars/purses)
The 4th AM Does NOT Protect: - Generally: anything public in nature, routinely exposed to 3P
1. Account records (banks)
2. Public airspace
3. Garbage (curbside)
4. Odors (emanating from car/luggage)
5. Open fields (in or across)
Government Agent: Physical Intrusion or Privacy Expectation Violation - i. Remember Jones
Case: GPS device tracking car's movement was violation b/c car is protected and was done to
obtain information on movement of car
,ii. Reasonable Expectation Privacy Test
1. Individual must show actual/subjective expectation to privacy of area
2. Expectation must be recognized as reasonable by society (most important requirement)
iii. Device not in public use
1. Searches are presumptively unreasonable when a device not in public use is used to explore
details of home that could not have been known without physical intrusion (thermal sensor)
Standing/Authority - Must have standing to challenge lawfulness of government conduct
1. Individual's own privacy rights must be implicated
Standing Includes: - 1. Owners and renters of premises
2. Guests of premises in areas overnight guests are expected to be (common area)
3. Ownership of seized property SO LONG AS owner has reasonable expectation to privacy of
area it was seized
Standing Does NOT Include: - 1. Brief commercial contact (one time visit, friends using
apartment)
2. Ownership of seized property that has no reasonable expectation to privacy of area it was
seized
3. Passenger of car (no reasonable expectation to privacy)
Was the Government Agent's Action Constitutional? (With Search Warrant) - Warrant Must:
1. Issued by neutral and detached magistrate
2. Supported by probable cause and particularity or if defective police must rely in good faith
3. Properly executed by police
, Neutral and Detached Magistrate - Conduct must not demonstrate bias in favor of prosecution
Probable Cause and Particularity Gates Test (Modern) - Probable cause requires proof of fair
probability contraband or evidence of crime will be found in area searched.
Hearsay can be used to furnish PC
Informant Testimony:
1. Informant tips may be used to furnish PC even if anonymous
2. Sufficiency of the tip turns on corroboration by the police of enough of the tipster's
information to allow magistrate to make "common sense practical determination" that probable
cause exists based on the totality of the circumstances.
Probable Cause Aguilar Spinelli Test (Stricter/Former) - Probable cause based on information
from informant is ok so long as prosecutor shows two elements:
1. Informant's basis of knowledge
2. Informant's reliability or veracity
Particularity - Requires search warrant to specify two things:
1. Place to be searched
2. Item to be seized
When there is an issue with a warrant: - Good Faith Doctrine saves defective search warrants
UNLESS one of the categorical exceptions to the Good Faith Doctrine exists
1. If affidavit supporting the warrant is so egregiously lacking in probable cause
