Criminal Procedure Handout-2

CRIMINAL PROCEDURE
PROFESSOR KIP CORNWELL
Copyright © 2016 by BARBRI, Inc.

CRIMINAL PROCEDURE
Professor Kip Cornwell

Seton Hall University School of Law
LECTURE OVERVIEW
Most important topic: Fourth Amendment Search and Seizure
Second most important topic: Confessions, especially in the context of the Fifth
Amendment Miranda doctrine
Additional topics: Wiretapping and Eavesdropping; Law of Arrest; Pretrial

Identifications; Grand Juries; Pretrial Proceedings; Trial Rights; Guilty Pleas and Plea
Bargaining; Punishment; Double Jeopardy; Fifth Amendment Privilege Against
Compelled Self-Incrimination (“Taking the Fifth”)
I. SEARCH AND SEIZURE OVERVIEW - FOUR “GLOBAL” ISSUES:
1. Whether a search or seizure is governed by the Fourth Amendment;

2. Whether a search or seizure conducted with a warrant satisfies Fourth
Amendment requirements;
3. Whether a search or seizure conducted without a warrant satisfies Fourth
Amendment requirements; and
4. The extent to which evidence obtained through a search and seizure that violates
the Fourth Amendment is nonetheless admissible in court.
II. SEARCH AND SEIZURE – ISSUE ONE:

Threshold question: Is the search or seizure governed by the Fourth Amendment?
For the Fourth Amendment to apply, there must be an affirmative answer to

four key questions:
1. Was the search or seizure executed by a government agent?
2. Was the search or seizure of an area or item protected by the Fourth Amendment?
3. Did the government agent either (a) physically intrude on a protected area or
item to obtain information; or (b) violate an individual’s reasonable expectation
of privacy in a protected area or item?
4. Did the individual subjected to the search or seizure have “standing” to challenge
the government agent’s conduct?
Copyright © 2016 by BARBRI, Inc.

2. CRIMINAL PROCEDURE—MULTISTATE
QUESTION 1: Was the search or seizure executed by a government agent?
Most important category:
1. ________________________________, on or off duty;
Additional categories of potential government agents:
2. ________________________________, if (and only if) they are acting at

the direction of the police
3. _________________________________, but only if they are deputized
with the power to arrest
Most common example: campus security at public universities
4. __________________________________, e.g., principals; vice-principals
If the search or seizure was conducted by someone who falls into one of the
categories above (and it likely will), move on to Question 2, which asks:
QUESTION 2: Was the search or seizure of an area or item protected by the

Fourth Amendment?
1. The Fourth Amendment expressly protects individuals from unreasonable

searches and seizures of their:
A. _________________ (i.e., bodies);
B. _________________ (including hotel rooms);
C. _________________ (e.g., personal correspondence); and
D. _________________ (personal belongings, e.g., purses,

backpacks, cars)
2. The protection of “houses” includes the “curtilage,” an area

__________________ to the home “to which the activity of home life
extends.”
Examples: front porch; back yard enclosed by fence

CRIMINAL PROCEDURE—MULTISTATE 3.
3. Unprotected items
There are certain categories of items whose routine exposure to third
parties renders them sufficiently “public” in nature that they merit no
Fourth Amendment protection, even if they are searched or seized by
government agents.
Mnemonic: “Public Observation Generally Obliterates Fourth

Amendment Protection.”
P ________________________________ (e.g., the sound of your

voice, the style of your handwriting)
O ____________ that emanate from your car or your luggage
G ________________________ left at the curb for collection
O ______________________: anything that can be seen in or across
the __________________________
F __________________________________ held by a bank
A ______________________: anything that can be seen below when
flying in _______________________________
P _____________________________: devices that list the telephone
numbers someone has dialed
QUESTION 3: Did the government agent’s conduct satisfy one of the two tests necessary
to implicate the Fourth Amendment?
There are two ways in which searches and seizures by government agents can
implicate an individual’s Fourth Amendment rights:
1. Trespass-based test: The agent ________________________________

on a constitutionally protected area in order to obtain ________________;
Example: The government’s installation of a GPS tracking device on a
vehicle, and the use of that device to monitor the vehicle’s movements,
constituted a physical intrusion on an “effect” for the purpose of gathering
information and, as such, was a “search” governed by the Fourth
Amendment.
OR
2. Privacy-based test: The agent’s search or seizure of a constitutionally
protected area violated an individual’s ____________________________
_____________________________ of privacy.
A. To satisfy the privacy-based test, an individual must show:

(1) an ______________ or ___________________ expectation
of privacy in the area searched or items seized; and
(2) that the privacy expectation was be “one that society
recognizes as ______________________________.”
B. A police search is presumptively unreasonable under the Fourth
Amendment when it uses a device that is not in _______________
to explore details of the home that officers could not have known
without _______________________________________.
Example: Police violated the Fourth Amendment when,

positioned outside the home without a warrant, they used a
“thermal imaging device” to detect “hot spots” inside the home
where the homeowners had placed high-intensity lights to grow
marijuana.
QUESTION 4: Did the individual subjected to the search or seizure have “standing” to
challenge the government agent’s conduct?
*Key principle: To have authority, or “standing,” to challenge the lawfulness of a

search or seizure by a government agent, an individual’s personal privacy rights
must be invaded, not those of a third party.
Accordingly, does a search or seizure by a government agent implicate

individuals’ reasonable expectation of privacy so as to confer “standing:”
1. if they own the premises searched? ___________________
2. if they do not own the premises, but they reside there? ___________
3. if they neither own nor reside in the premises searched, but they are
overnight guests there? _______________, as to areas overnights guests
can be expected to access
Examples: YES: living room; dining room; bathroom
NO: closet in host’s bedroom
4. if they neither own, nor reside, nor are staying overnight but are merely
using someone else’s residence solely for business purposes? __________
Example: Apartment of acquaintance used only to bag cocaine
5. if they own the property seized? Only if they have a reasonable

expectation of privacy in the __________ from which the property was
seized
Example: Man who hides drugs in girlfriend’s purse? NO!
6. if they are passengers in cars? Not as to searches of the automobile, since

they do not have a reasonable expectation of privacy in a vehicle in which
they are “____________________________________”
Example: Passenger has no standing to challenge the search of a car
where the officer found a sawed-off rifle under the front passenger’s
seat
If you find, at the end of ISSUE ONE, that a government agent has either
(1) physically intruded on a protected area or item to obtain information or
(2) violated an individual’s reasonable expectation of privacy in a
protected area or item and the person subjected to the search has standing
to challenge the agent’s conduct, the Fourth Amendment applies to the
search and/or seizure.
We must now determine if the search or seizure complies with Fourth

Amendment requirements.
Searches or seizures require warrants, unless an exception applies. As we

will see, there are many exceptions.
ISSUE TWO addresses the constitutional requirements of those searches

and seizures that are conducted with a warrant.
ISSUE THREE will address warrantless searches and seizures.
III. SEARCH AND SEIZURE – ISSUE TWO:

Did the search or seizure conducted pursuant to a search warrant satisfy Fourth
Amendment requirements?
This issue asks four key questions:
1. Was the warrant issued by a neutral and detached magistrate?

2. Is the warrant supported by probable cause and particularity?
3. If not, did police officers rely on a defective warrant in “good faith?”
4. Was the warrant properly executed by the police?
QUESTION 1: Was the warrant issued by a neutral and detached magistrate?
Standard: A judicial officer ceases to be sufficiently “neutral and detached” for

Fourth Amendment purposes when her conduct demonstrates _________ in favor
of the prosecution.
Example: Salary of town official responsible for issuing search warrants
comprised entirely of cash award for each warrant issued (!)
QUESTION 2: Is the warrant supported by probable cause and particularity?
1. Probable cause
Probable cause requires proof of a “______________________________”

that contraband or evidence of crime will be found in the area searched.
A. Is hearsay admissible for this purpose? ___________

B. Use of informants’ tips: Police may rely on information obtained
through an informant’s tip, even if the information is
______________________. The sufficiency of the informant’s tip
rests on corroboration by the police of enough of the tipster’s
information to allow the magistrate to make a “_______________
___________________________” determination that probable
cause exists based on a _________________ of the circumstances.
Hypo: The NYPD receive an anonymous letter stating that Bill and Terry
Jones, who reside at 505 Cocaine Lane in Brooklyn, sell drugs out of their
home. The letter explains how Terry drives the couple’s 2000 Honda
Odyssey to Miami and loads it with drugs. Bill then flies to Miami and
drives the car back to their home in Brooklyn where he unloads the drugs.
Terry flies home. Before applying for a warrant to search the Jones’s
home, the police confirm substantially all of the critical information
contained in the letter. They discover, at the same time, that a few minor
details included in the letter were factually inaccurate. Should the
magistrate issue the warrant?
________. The police have confirmed enough of the tipster’s information

to allow the magistrate to make a __________________________,
__________________ determination that probable cause exists, based on
a totality of the circumstances.
2. Particularity
To satisfy the particularity requirement, the search warrant must specify
two things:
A. the ______________ to be _____________________; and

B. the ______________ to be _____________________.
Hypo: The police have probable cause to believe that Ted has murdered
his wife, Elaine. Forensic evidence has established that Elaine was
stabbed to death with a long, serrated knife. The district attorney applies
for a warrant to search Ted and Elaine’s apartment for the knife. The
warrant issued by the magistrate authorizes police to search “the entire
apartment, including all closed containers, for evidence linked to Elaine’s
murder.” Does this warrant satisfy particularity requirements?
________. This is a “__________________________” that authorizes a

fishing expedition in private areas that could not possibly house the
evidence for which there was probable cause to search.
A warrant that is invalid due to the absence of probable cause or

particularity can still be saved if the officer relied on it in “good faith.”
Thus, if multiple choice question or essay question presents a

defective search warrant, proceed to Question 3, which asks:
QUESTION 3: Does an officer’s “good faith” save a defective search warrant?
An officer’s “good faith” overcomes constitutional deficits in probable cause

and particularity. However, there are four categorical exceptions to the
“good faith” doctrine:
1. The affidavit supporting the warrant application is so egregiously lacking

in _____________________________ that no reasonable officer would
have relied on it.
Example: “Bare bones” affidavit that states only that the police have
“received information from a confidential informant” who is “known to
them” and “has provided reliable information in the past.”
2. The warrant is so facially deficient in _____________________________

that officers could not reasonably presume it to be valid.
Example: Warrant authorizes a search for “all serial numbers and
identification numbers on all property” at an address where probable cause
existed only as to the presence of a stolen vehicle parked outside.
3. The affidavit relied upon by the magistrate contains knowing or reckless

____________________ that are necessary to the probable cause finding.
4. The magistrate who issued the warrant is __________________ in favor
of the prosecution.
Example: The local government official, discussed earlier (see page 6),
whose salary was based entirely on a cash award for each warrant he
issued.
If the police had either a valid warrant or a defective warrant saved by

officers’ good faith, you must move on to Question 4 which asks:
QUESTION 4: Was the search warrant properly executed by the police?

There are two aspects of this inquiry:
1. Compliance with the warrant’s terms and limitations:
A. In executing the warrant, officers are allowed to search only those
areas and items authorized by the language of the warrant.
Hypo: A warrant allows police to search “the living room and all bedrooms for stolen
iPads.”
What areas or items, if searched, would be outside the scope of the warrant?
Areas: any rooms other than the _______________________ and the

____________________________ (e.g., kitchen, dining room)
Items: any containers ___________________ to hold an iPad (e.g., pill box, wallet)
B. When executing a search warrant, officers may detain occupants

found __________________ or __________________________
____________________ the residence (e.g., the front steps or
adjacent pathway) at the time of the search.
2. “Knock and Announce” rule:
Police must “knock and announce” their presence and their purpose
before forcibly entering the place to be searched, unless the officer
reasonably believes that doing so would be:
A. _____________________; or
B. _____________________; or
C. would ___________________ the investigation.
Example 1: “No-knock” entry was deemed reasonable where there was

probable cause to believe the occupant was dealing drugs out of his
home, had a violent criminal history, and kept a cache of weapons in the
home.
Example 2: “No-knock” entry was deemed unreasonable where

occupants believed to be making methamphetamine in their home had
no violent criminal record, no evidence suggesting they were armed,
and no demonstrated risk of destruction of evidence in the time it would
take to knock and announce.
ISSUE TWO focused on searches and seizures conducted pursuant to a search

warrant. You may, however, be presented with a search or seizure conducted
without a warrant. This is permissible, provided the circumstances fit within one of
the eight (8) categorical exceptions to the warrant requirement.
In ISSUE THREE, to which we now turn, we address those exceptions, each of

which has its own justifications, rules and limitations.
IV. SEARCH AND SEIZURE – ISSUE THREE:

Is the warrantless search through which criminal evidence was gathered valid under
any of the eight (8) exceptions to the warrant requirement?
“ESCAPIST”
E xigent Circumstances
S earch Incident to Arrest
C onsent
A utomobile
P lain View
I nventory
S pecial Needs
Terry “Stop and Frisk”
(Note: Your BARBRI materials organize these exceptions slightly differently, but
there is no substantive difference between the principles presented here and those
in your BARBRI books.)
1. Exigent Circumstances (three types)

A. Evanescent Evidence: evidence that would ________________
or __________________ in the time it would take to get a warrant
Example: tissue under a suspect’s fingernails

(1) Note: The natural dissipation of alcohol in the bloodstream

does not automatically create an exigency sufficient to
justify a warrantless blood alcohol content (“BAC”) test.
B. “Hot Pursuit” of a Fleeing Felon:

(1) Hot pursuit allows police officers to enter the ___________
of a suspect or a third party to search for a fleeing felon.
(2) During hot pursuit, any evidence of a crime discovered in
_______________________ while searching for the
suspect is admissible.
C. “Emergency Aid” exception: Police may enter a residence
without a warrant when there is an objectively reasonable basis
for believing that a person inside is in need of emergency aid to
address or prevent ____________________ .
2. Search Incident to Arrest
A. Arrest (also called a “custodial” arrest) must be ______________.
B. *Timing: The search must be _____________________________
in time and place with the arrest.
C. Geographic scope: the ___________________, which includes
the body, clothing, and any containers within the arrestee’s
________________________________________ without regard
to the offense for which the arrest was made.
(1) CELL PHONES: Police may not, without a warrant, search
____________________ on the cell phone of an arrestee;
however, they may examine the cell’s _______________
aspects to ensure that it will not be used as a weapon.
(2) DNA EVIDENCE: Police may lawfully take a DNA sample
by swabbing the cheek of an individual arrested for a
serious offense.
Hypo: After making an arrest for driving while intoxicated, an officer

searches a cigarette pack in the arrestee’s front shirt pocket and seizes
the crack cocaine he finds inside. Are the search and seizure lawful?
______. The contraband was found in a ___________________ inside

the arrestee’s ____________________and, as such, was within the
arrestee’s _________________________________________.
D. Automobiles searched incident to a custodial arrest:
(1) PERMISSIBLE SCOPE: ___________________________,

including ________________________________, but not
the __________________.
(2) “SECURED” VERSUS “UNSECURED” ARRESTEES: Once an
officer has “secured” an arrestee (by, for example,
handcuffing him and placing him in the squad car), the
officer can search the arrestee’s vehicle only if she has
reason to believe the vehicle may contain ____________
relating to the crime for which the __________ was made.
Hypo: Jill is arrested for driving with a suspended license. Officer Jack
tells Jill, who is not handcuffed, to remain in the vehicle while he
searches it. In Jill’s purse on the floor of the car, Jack finds cocaine
and seizes it. Are Jack’s actions lawful?
_____, because Jill is ___________________ at the time of the search.

However, if Jill were handcuffed inside the squad car at the time of the
search, the search would be _________________, since Jack could not
reasonably expect to find ____________________ relating to driving
with a suspended license inside the vehicle.
3. Consent
A. Standard: Consent must be _____________________. For
consent to be valid, police officers do not need to tell someone that
she has the right to _____________ consent.
B. Scope of consent: An officer’s consent to search extends to all
areas for which a ___________________________________
would believe permission to search was granted.
C. “Apparent” authority: If a police officer obtains consent to search
from someone who lacks “actual” authority to grant it, the consent
is still valid under the Fourth Amendment, provided the officer
_____________________ believed that the consenting party had
“actual” authority.
Example: “Apparent” authority was found where an officer reasonably

believed that a woman had “actual” authority to consent to his entry into
her boyfriend’s apartment since she referred to the apartment as “ours,”
had a key to enter it, and claimed to keep personal belongings there.
D. Shared premises:
(1) When adults share a residence, ______ resident can consent to
a search of common areas within it.
(2) However, if co-tenants who are present on the premises
disagree regarding consent to search common areas, the
____________________ party prevails, as to areas over
which they share dominion and control.
(a) But, if an objecting co-tenant is removed for reasons
unrelated to his refusal (e.g., a lawful arrest), the police
may rely on the consent of the ____________________,
consenting co-tenant.
4. “Automobile” Exception
A. Justifications: vehicles’ _______________________________
and individuals’ _____________ expectation of privacy in vehicles
B. Standard: Police officers need probable cause to believe that
___________________ or _____________________________
will be found in the vehicle.
C. Where can police officers search? The ______________ vehicle
and they may open any package, luggage, or other container that
may reasonably contain the item(s) for which there was probable
cause to search.
Hypo: Officer Evelyn has probable cause to believe that a car is being used to
transport a stolen 27" flat-screen television.
• Where can she search? ________________________

• Can she open a backpack in the trunk? ______. It is __________________to house
a 27” TV!
• What if Evelyn had probable cause to search for drugs? Could she search the
backpack then? _____. Why? Drugs _____________________ inside a backpack.
D. Traffic stops and auto searches: Sometimes what begins as a

routine traffic stop results in a search of all or part of the vehicle.
For the search to be lawful, an officer does not need probable
cause to search the vehicle at the time the car is pulled over,
provided he acquires it before ___________________ the search.
Hypo: A car is pulled over for speeding. When Officer Ed runs the
license plate through the computer, he discovers that the car has
been linked to drug trafficking activity through police surveillance.
He returns to the vehicle and proceeds to search it, finding a 5-lb
package of cocaine under the spare tire in the trunk.
Is this search lawful? _____
Could Ed have lawfully searched the car before he ran the license
plate? _____
5. Plain View
The three requirements for seizure of an item in plain view:
A. lawful access to the ___________ from which the item can be

plainly seen;
B. lawful access to the _________________itself; and
C. the criminality of the item must be _________________________

apparent.
Hypo: A police officer enters a residence in “hot pursuit” of a fleeing

felon. The officer enters an upstairs bedroom and opens a closet door to
see if the felon is hiding inside. He is not. Noticing a backpack on the
floor, the officer opens it and finds a baggie containing a white, powdery
substance labeled “heroin.” He seizes it. The seizure of the heroin is
invalid under the plain view doctrine. Why?
While the officer had lawful access to the bedroom and the closet (the
“place”) and seized what he knew was contraband (“immediately
apparent” criminality), he did not have lawful access to the backpack (the
“item” searched).
Why? The felon could not ________________________________. (!)

6. Inventory Searches
A. Inventory searches most commonly occur in two contexts:
(1) Arrestees: when they are __________________________
(2) Vehicles: when they are ___________________________
B. Inventory searches are constitutional, provided:
(1) the regulations governing them are ___________________
__________________________;
(2) the search itself _____________________ with those
regulations; and
(3) the search is conducted in _________________________;
that is, it is motivated solely by the need to safeguard
the owner’s possessions and/or to ensure officer safety.
7. Terry Stops and Frisks

A. Terry Stops
(1) WHAT IS A TERRY STOP?
It is a ________________ detention or “seizure” for the
purpose of investigating suspicious conduct.
Note: Terry stops can take place anywhere, e.g., on the
street, in a car, in an airport concourse, or on a bus.
(2) WHEN ARE YOU “SEIZED” FOR FOURTH AMENDMENT

PURPOSES?
(a) An individual is seized for Fourth Amendment

purposes when, based on a totality of the
circumstances, a reasonable person would not feel
____________________________ or to decline an
officer’s request to _______________________
____________________.
(b) In evaluating whether an individual has been seized
during questioning by law enforcement, you should
consider:
(i) whether an officer ____________________

a weapon;
(ii) the officer’s ________ and _____________
when interacting with the person questioned;
(iii) and whether the individual was told she had
the right to refuse _________________.
(3) Police Pursuit and “Seizure:”

When being pursued by a police officer, an individual is
seized only if he ________________ to the officer’s
authority by stopping or if the officer _________________
___________________________ him.
Hypo: As Martha hurriedly exits Bloomingdale’s, Officer Alice think she looks
“shifty” and orders her to halt. Martha runs in the opposite direction and Alice
gives chase. As Martha rounds the corner, she collides with a pedestrian,
causing the contents of her purse to spill out onto the pavement just as Alice
approaches. Looking down, Alice sees pills in a baggie labeled “Martha’s
ecstasy.” Alice seizes it. Martha moves to suppress the drugs, claiming that she
was unlawfully seized by Alice. If we assume that Alice was not justified in
ordering Martha to halt, does Martha’s claim have merit?
____. Martha was never seized since she did not _______________ to Alice’s
authority.
(4) Traffic Stops – three important principles:

(a) In a traffic stop, both the _______________ and the
____________ are seized, such that either can
challenge the legality of the stop.
(b) In a traffic stop, the officer may, in her discretion,
order both the driver and the passengers_________
_____________.
(c) Dog sniffs at traffic stops are permissible provided
the “sniff” does not ____________________ the
stop ____________________________.
Example: It is permissible for “K-9” officers to sniff the exterior
of a car during a traffic stop while the computer is checking the
driver’s license and registration.
Contra: A police officer’s use of a drug-sniffing dog to
investigate an individual’s home and its curtilage is a “search”
governed by the Fourth Amendment.
B. Terry Frisks
(1) WHAT IS A TERRY FRISK?
It is a ___________________ of the body and outer clothing for
__________________ that is justified by an officer’s belief that a
suspect is ______________ and ______________________.
(2) WHAT CAN YOU SEIZE IN A TERRY FRISK?
If, during a Terry frisk, an officer finds something she reasonably
believes to be a ______________, it can always be seized. If,
instead, the officer finds something she recognizes as
________________________ without manipulating the object,
she can seize it as well.
Hypo: When Officer Adele pulls Frank over for speeding, he storms out of
his car and begins screaming about how she is wasting his “valuable time”
and that he has “messed with people” for less. Afraid that he might have a
weapon, Adele frisks Frank. In his coat pocket, she detects what she
immediately recognizes to be a crack pipe. She seizes it. Is this seizure
justified?
______, since she did not ______________________________________

the pipe before seizing it.
Further “live” hypo: The pistol and the bag of cocaine …
(3) CAR “FRISKS:”

When conducting a traffic stop, if an officer believes that a suspect
is dangerous, he may search the __________________________
of the suspect’s vehicle, limited to those areas in which a weapon
may be __________________ or ____________________.
(4) “PROTECTIVE SWEEPS”:
When making an in-home arrest, police may “sweep” the residence
to look for criminal confederates of the arrestee whose presence
may threaten ______________________________.
C. Evidentiary Standards
(1) WHAT EVIDENTIARY STANDARD APPLIES TO TERRY STOPS AND
FRISKS?
_______________________________, which is less than
_____________________________
(a) How does this standard apply in Terry stops?

It requires specific and articulable facts that inform an
officer’s belief that _______________________ is present.
(i) An officer’s ________________________intent is
irrelevant in evaluating the legality of the stop; the
Fourth Amendment is concerned solely with its
________________________ reasonableness.
(b) How does this standard apply in Terry frisks?
It requires specific and articulable facts that suggest that a
suspect is _____________________________________.
Remember: A Terry frisk is justified by a concern for
officer safety only; it is not a ______________________
for criminal evidence.
(c) Can informants’ tips satisfy this standard?
______, provided the tip contains sufficient ____________
information, corroborated by the police, to establish the
informant’s ____________________________.
Hypo: An informant tells the police that, the following evening between 11:00PM
and 1:00 AM, two teenagers are planning to transport stolen electronics from a hiding
place located within a 10-block radius downtown. The following evening, Officer
Eve spots two teenagers pushing a baby carriage downtown at midnight in a desolate
commercial area located within that 10-block area.
Does Eve’s observation justify a Terry stop? ____. The teenagers’ conduct, coupled
with Eve’s corroboration of __________________ detail in the tip, provide
_________________________________ that criminal activity is present.
Does Eve’s observation justify a Terry frisk? Only if additional facts suggest that
either or both of the teenagers is _____________________________________.
(2) WHAT EVIDENTIARY STANDARDS APPLY IN “PROTECTIVE SWEEPS”?
(a) Whenever they are making an in-home arrest, officers have

the authority, without probable cause or reasonable
suspicion, to look in areas _________________________
the place of arrest from which an attack could be
immediately launched.
(b) To justify a “sweep” of more remote areas, the arresting

officers must have additional facts sufficient to allow them
to conclude that an individual who may threaten officer
safety is present in the _______________________.
8. Special Needs (“special needs” of law enforcement, governmental
employers and school officials beyond a general interest in law enforcement.)
A. Drug testing (the most prolific “special needs” category):

The U.S. Supreme Court has approved warrantless, suspicionless drug
tests in a variety of contexts, including:
(1) _______________________, following an impact accident;

(2) _______________________________ responsible for drug
interdiction; and
(3) ___________________________________ who participate in any

extracurricular activities.
B. Parolees: Warrantless, suspicionless searches of a parolee and his

___________ are permissible as a condition of parole.
C. School searches: Warrantless searches of the _____________ and the
“_______________” (e.g., purses, backpacks) of public schoolchildren are
permissible to investigate violations of school rules, such as the
prohibition of smoking on school grounds, provided the search is
____________________ at its inception and is not __________________
______________________, in light of the age and sex of the student and
the nature of the infraction.
Example: U.S. Supreme Court held that the warrantless strip search of a
13-year-old middle school student suspected of carrying prescription-
strength ibuprofen (Advil) was excessively intrusive in light of her age
and in relation to the potential danger to other students.
D. Government employees: Warrantless searches of government employees’

__________ and ______________________ are permissible, provided the
searches are ________________ at their inception and in scope.
E. Border searches: Neither citizens nor non-citizens have any Fourth
Amendment rights at the ______________, with respect to
_________________searches of persons and effects.
F. “Non-law-enforcement primary purpose” test: The “special needs”

doctrine does not include law enforcement programs or practices whose
primary purpose is to gather criminal evidence for __________________
____________________ by law enforcement.
Example: The Indianapolis police department set up a “checkpoint” in a
part of the city associated with drug trafficking that subjected randomly
stopped vehicles to a search for drugs. The U.S. Supreme Court
disallowed the practice, finding that – unlike sobriety checkpoints – this
checkpoint’s primary purpose was to gather criminal evidence for
general use against drug dealers, not to protect motorists from an
imminent threat to physical safety.
RECAP: ISSUES ONE THROUGH THREE
Searches and seizures conducted by government agents satisfy the

Fourth Amendment if:
1. They are supported by a valid and properly executed warrant; or
2. They are supported by a properly executed but defective warrant saved

by officers’ “good faith;” or
3. They are warrantless and comply with the requirements and limitations
of one of the eight (8) categorical exceptions to the warrant requirement.
If any of these three situations exists, the evidence gathered is fully

admissible and you do not need to move on to Issue Four.
However, if none of these three scenarios applies to your facts, you are
faced with an unconstitutional search and seizure.
If so, you must now move on to ISSUE FOUR, which addresses the
extent to which evidence obtained in violation of the Fourth Amendment
is nonetheless admissible against a defendant in court.
V. SEARCH AND SEIZURE – ISSUE FOUR: To what extent can prosecutors use the evidence
gathered in an unconstitutional search and seizure against the defendant in court?
*Exclusionary rule: Evidence, whether physical or testimonial, that is obtained in

violation of a federal statutory or constitutional provision is inadmissible in court against
the individual whose rights were violated.
Fourth Amendment limits on the exclusionary rule:

1. Case-in-chief vs. cross-examination: Unconstitutionally obtained evidence is
excluded from the prosecutor’s __________________________ only; it may be
introduced to impeach the defendant’s testimony on cross-examination.
2. “Knock and Announce” violations: A failure to comply with the “knock and
announce” rule does not require suppression of evidence that is
_________________________ discovered.
3. Police error: To trigger the exclusionary rule, erroneous police conduct must be
___________________, ___________________, or grossly _________________.
Example: Exclusionary rule did not apply to bookkeeping error by police
employee that led to an unlawful arrest where the error was the result of simple,
not gross, negligence.
4. Officers’ “reasonable” mistakes: The exclusionary rule does not apply to

evidence obtained _________________________ when executing a search
warrant, provided an officer’s mistake was __________________________.
Hypo: The police obtained a warrant to search “John’s premises located at 2036
Park Avenue, third floor.” Upon arriving at the location, six police found two open
doors and, believing they were doors to a single, one-floor apartment, they entered
both. By the time they realized that there were two separate apartments, they had
seized drugs in Brad’s apartment, which they had entered in error. Are the drugs
admissible against Brad?
______. The belief that there was only one apartment was ________________,
based on what the officers knew, and they ______________ the search as soon as
they realized their mistake.
5. “Fruit of the Poisonous Tree”:

A. General Principles:
(1) “DIRECT” EVIDENCE: Most of the unlawfully seized evidence that
we have addressed thus far has been directly linked to the
constitutional violation, e.g., evidence gathered pursuant to a
search warrant that violates the Fourth Amendment.
(2) “DERIVATIVE” EVIDENCE: Evidence (both physical and testimonial)

can also be obtained by exploiting _________ unconstitutional
conduct, e.g., a confession obtained as a result of an earlier
unlawful arrest. This derivative or “secondary” evidence is called
“fruit of the poisonous tree” and, like “direct” evidence obtained in
violation of the Fourth Amendment, it is inadmissible in the
prosecutor’s ___________________________.
B. Admitting Tainted “Fruit:”
To nullify “fruit of the poisonous tree,” prosecutors must show a break in
the ______________________ between the original illegality and the
criminal evidence that is later discovered.
Three doctrines can achieve the requisite break:
(1) “Independent Source”: This doctrine applies where there is a

source for the discovery and seizure of the evidence that is distinct
from the ____________________illegality.
Example: An independent, parallel process initiated by other

officers
(2) “Inevitable Discovery”: This doctrine applies where the evidence

would _______________________ have been discovered through
___________________ means.
Example: The body of a dead girl, discovered by the police
through an unlawful interrogation, would necessarily have been
found lawfully by the police who were presently conducting a
“grid search” of the area in question.
(3) “Attenuation”: This doctrine admits derivative evidence

where the passage of time and intervening events “____________
__________________________” of the original illegality and
restore the defendant’s free will.
Hypo: The defendant is illegally arrested on Friday night, released

on bail on Saturday, meets with his attorney on Monday and then, on
Tuesday, returns to the police station and confesses. Is his
confession admissible?
________. The confession is not the product of the prior

unconstitutional conduct. The defendant’s release from
confinement, his meeting with counsel, and his voluntary decision to
confess four days after his release __________________________
______________ of the unlawful arrest and restored his free will.
VI. WIRETAPPING AND EAVESDROPPING

1. Wiretapping - Four major requirements for a valid wiretap warrant:
Mnemonic: “Screen Telephone Calls Carefully”
S ________________________: The warrant must name the suspected

persons whose conversations are to be overheard.
T _______: The wiretap must be for a strictly limited time period.
C _________: There must be probable cause that a specific crime has been
committed.
C ______________________: The warrant must describe with particularity

the conversations that can be overheard.
2. Eavesdropping - “Unreliable Ear” Doctrine and Assumption of the Risk:

If you speak to someone who has agreed to a wiretap or some other form of
electronic monitoring, you have no Fourth Amendment claim; you ____________
______________________ that the other party will not keep your conversations
private.

VII. THE LAW OF ARREST
1. When does an arrest occur?
A. An arrest occurs whenever the police take someone into custody against
her will for ____________________ or ________________________.
B. It is considered a de facto arrest when the police compel someone to come
to the police station for ___________________ or __________________.
2. What standard of proof applies to arrests? __________________________
3. For what offenses does the Fourth Amendment permit a custodial arrest?
_____ offenses, even those punishable by a __________________________ only
4. When do you need an arrest warrant?
A. Police officers do not need a warrant to arrest someone in a ____________
_________________.
B. Absent an emergency, police officers need a warrant to arrest someone in
his or her ___________.
C. To arrest someone in the home of a third party, police officers need an
_______________ warrant and a ___________________ warrant.
VIII. CONFESSIONS (Second most important topic, especially Miranda)
1. Overview: There are three federal constitutional challenges that can be
brought to exclude a confession:
A. Fourteenth Amendment ________________________________
B. Sixth Amendment ________________________________
C. Fifth Amendment _________________________________
2. Excluding Confessions under the Due Process Clause:
What is the standard for excluding a confession under the Due Process Clause?
________________________________, which means that the confession is the
product of police coercion that ______________________ the suspect’s will.
Hypo: Believing that God has commanded him to do so, a man flies across the country
to confess to a murder he had committed years earlier. Before the officer takes his
confession, the officer gives the man his Miranda rights and obtains a waiver. In the
next 24 hours, the suspect decompensates mentally and becomes overtly psychotic. A
psychiatrist later testifies that he was psychotic at the time he confessed. Does
admitting the confession at trial violate due process, if it is found to be unreliable?
_____. The confession was ______________________ since the suspect’s will was not
_______________________ by police coercion.
3. Right to Counsel under the Sixth Amendment:

A. This is an ________________ constitutional guarantee.
B. *It attaches when the defendant is _______________________________,
not upon arrest!
C. It applies at all “______________________________” of the prosecution

that take place after the filing of formal charges, including arraignment,
probable cause hearings, police interrogation and plea bargaining.
D. *This right is “offense specific.” This means it applies only to the crimes
with which a defendant is ______________________________. It
provides no protection for uncounseled interrogation for other
______________________ criminal activity.
E. Incriminating statements obtained from the defendant by law enforcement
about charged offenses violate the Sixth Amendment if those statements
are _____________________________________ and the defendant did
not knowingly, intelligently, and voluntarily waive his right to have his
attorney present.
Hypo: Kevin is charged with burglary. At the bail hearing, a public defender is
appointed to represent him and he is remanded to custody. Two weeks later,
during questioning by Assistant District Attorney Tamara outside the presence of
Kevin’s attorney, Kevin makes incriminating statements about the burglary and an
unrelated murder. Did Tamara’s conduct violate Kevin’s Sixth Amendment Right
to Counsel:
With respect to the burglary? ______. Tamara _______________________

____________________ incriminating statements from Kevin without first
obtaining a valid _________________ of his right to counsel.
With respect to the murder? _____. Kevin had not been __________________
___________________ with the murder when Tamara questioned him about it.
4. Fifth Amendment Miranda doctrine:
A. Implied rights: Miranda rights are implied rights grounded in the Self-
Incrimination Clause of the _____________ Amendment.
B. There are four core Miranda warnings:
(1) the right to remain silent
(2) anything you say can and will be used against you in a court of law
(3) the right to an attorney
(4) if you cannot afford an attorney, one will be appointed for you
C. When are Miranda warnings necessary?

There are two core requirements:
(1) CUSTODY: A two-part, totality-of-the-circumstances test is used
to determine if a suspect is in custody for Miranda purposes.
(a) Part One: A reasonable person would have felt that she
was not at liberty to _________ the interrogation and
_______________; and
(b) Part Two: The environment presents the same
___________________________________ pressures as
the station-house questioning at issue in Miranda.
(c) Age and custody: While the custody inquiry is
_________________, it should take account of a juvenile
suspect’s age, where age is relevant and when the officer
knew or should have been aware of a child’s age at the time
of questioning.
(2) INTERROGATION: The Fifth Amendment Miranda doctrine defines
interrogation as any conduct the police _______ or ____________
________________________ was likely to elicit an incriminating
response.
*Remember: Miranda does not apply to incriminating statements
made __________________________, since they are not the
product of interrogation.
Miranda hypo 1: Four police officers entered the defendant’s bedroom at 4:00 AM. They
awakened him and immediately began questioning him about his involvement in a homicide
earlier that evening. After he gave his name, an officer told the defendant he was under
arrest. During the course of the interrogation, the defendant incriminated himself. The
prosecution argued that this in-home interrogation was not custodial for purposes of the
Miranda doctrine. Is this argument persuasive?
____. While the interrogation did not take place in an “official” setting, it was conducted by
four police officers at 4:00 AM in the bedroom of a suspect placed under arrest. Under
these circumstances: (1) a reasonable person would not feel free to _________ the
interrogation and ____________; and (2) the atmosphere reflected the same
__________________ pressures that existed in Miranda’s station-house interrogation.
Miranda hypo 2: A police officer, posing as an inmate, is placed in a jail cell with the
defendant, who is being detained pending trial on a charge of aggravated battery. The
officer befriends the defendant and questions him about his involvement in an unrelated
murder. In response to the officer/inmate’s questions, the defendant incriminates himself.
Did the officer’s conduct violate the defendant’s Miranda rights?
_____. Because the defendant thought he was talking to a friend, the

“____________________________________________” of the Miranda doctrine – an
atmosphere of police domination and coercion -- were absent.
Note: No Sixth Amendment violation because the interrogation concerned uncharged
criminal activity.
(3) “PUBLIC SAFETY” EXCEPTION: If a suspect is subjected to

custodial interrogation, as defined above, the Miranda doctrine
applies with one important exception: If custodial interrogation is
prompted by an immediate concern for _____________________,
Miranda warnings are unnecessary and any __________________
statements are admissible against the suspect.
D. Respecting Miranda: Unless the public safety exception applies, a
suspect’s incriminating testimonial responses obtained through custodial
interrogation are admissible if (and only if) an officer does two things:
(a) “________________________________________” to the
suspect his or her core Miranda rights; and
(b) thereafter obtains a valid waiver of a suspect’s Miranda
rights to _________________ and _________________.
E. A valid Miranda waiver:
(1) TWO CORE REQUIREMENTS:
(a) “Knowing and Intelligent:” A Miranda waiver is “knowing
and intelligent” if the suspect understands:
(i) the _______________ of the rights; and
(ii) the __________________________ of abandoning

them.
(b) Voluntary: A Miranda waiver is voluntary if it is not the

product of _________________________________.
(2) EXECUTING THE WAIVER: A Miranda waiver need not be

“express;” it may, instead, be ________________ by a course of
conduct that indicates the desire to speak with police interrogators.
(a) If a suspect has received and understood his Miranda
rights, he waives his right to remain silent by making an
_________________________ statement to the police.
(3) BURDEN OF PROOF: The ______________________ bears the
burden of proving a valid waiver of a suspect’s Miranda rights by
a __________________________of the evidence.
Hypo: Upon learning that Leigh has been arrested, her lawyer calls the station
house and tells the desk sergeant that he wants to be present if she is interrogated
that evening. An hour later, the sergeant sees detectives take Leigh into an
interrogation room, but he does not notify Leigh’s attorney and does not tell
Leigh about her attorney’s call. After receiving her Miranda rights, Leigh
acknowledges that she understands them. She then signs a waiver form and
confesses, in response to the detectives’ questions. Is her waiver valid?
______. Leigh ___________________ her rights and the ___________________

of her actions and was not __________________ by the detectives.
Note: Justice O’Connor has commented, in this regard, that suspects are not
entitled to “a flow of information to calibrate their self-interest.”
F. Invoking Miranda rights:

(1) INVOKING THE RIGHT TO REMAIN SILENT:
(a) Suspects must ___________________________ invoke
their right to remain silent.
(b) Once the suspects invoke the right to remain silent, police
officers must “_________________________________”
the invocation. This means, at the very least, that the
police cannot ________________ a suspect into talking; in
addition, police detectives must wait a ________________
period of time before reinitiating questioning and must first
obtain a valid _________________________________.
(2) *INVOKING THE RIGHT TO COUNSEL:

(a) The request for counsel must be ____________________
that a reasonable officer in the same situation would
understand the statement to be a request for counsel.
(b) Once a suspect asks for counsel (“lawyers up”), _______
interrogation must cease unless initiated by the
____________________.
(c) Unlike the Sixth Amendment, the Fifth Amendment right
to counsel is not offense-specific; therefore, interrogation
following a request for counsel under Miranda is prohibited
as to _______ topics, outside the presence of the suspect’s
attorney.
(d) The request for counsel expires _______________ after a
suspect is released from custody; a waiver of the Miranda
right to counsel obtained after this period is valid, provided
it is knowing, intelligent, and voluntary.
G. Limitations on evidentiary exclusion as applied to Miranda violations:
(1) Incriminating statements obtained in violation of a suspect’s
Miranda rights are inadmissible in the prosecutor’s case-in-chief
but may be used to impeach the _________________________
testimony on cross-examination.
*(2) Failure to give a suspect Miranda warnings does NOT require the
suppression of the __________________________________ of
incriminating statements, provided the statements are voluntary.
Hypo: Jim confesses to killing his business partner and tells the
officer where he hid the murder weapon. The officer retrieves the
weapon. The entire interrogation is found to violate Miranda.
Will Jim be able to suppress:
The statements? ______

The weapon? _____ (It is a “physical fruit.”)
(3) If a statement is inadmissible due to a Miranda violation,

subsequent incriminating statements made after obtaining a
Miranda waiver are admissible, provided the initial, non-
Mirandized statement was not obtained through the use of
____________________________________ police tactics or
methods, offensive to due process.
(4) If testimonial evidence that should have been excluded as violative
of Miranda was improperly admitted at trial and the defendant was
convicted, is the court required to vacate the guilty verdict?
It depends. The guilty verdict will stand if the government can

prove, beyond a reasonable doubt, that the error was ___________
because the defendant would have been convicted _____________
the tainted evidence.
(This “harmless error” rule also applies to physical evidence
improperly admitted under the Fourth Amendment.)
IX. PRETRIAL IDENTIFICATIONS
1. The three types of pretrial identifications:
A. Line-ups: witness is asked to identify the perpetrator from a group

B. Show-ups: one-on-one confrontation between the witness and the suspect
C. Photo arrays: witness is shown a series of photos and is asked if she sees
the perpetrator among them
2. There are two substantive challenges to pretrial identifications:
A. Denial of the Right to Counsel:
(1) FIFTH AMENDMENT: There is no Fifth Amendment right to counsel

under the Miranda doctrine for pretrial identification procedures.
*(2) SIXTH AMENDMENT: A right to counsel exists under the Sixth

Amendment at ____________________ and _______________
that take place after formal charging; however, there is no Sixth
Amendment right to counsel at ________________________.
(This is a Multistate Bar favorite!)
B. Violation of Due Process:

(1) A pretrial identification procedure violates the Due Process Clause
of the Fourteenth Amendment when it is so __________________
_______________________ that it creates a substantial likelihood
of misidentification.
(2) In making this determination, courts must weigh the
__________________________ of a suggestive identification
against its ________________________________________.
3. Remedial Considerations
A. The remedy for constitutional violations in pretrial identifications is the
exclusion of a witness’s ______________________ identification.
B. However, even if there is a constitutional violation in a pretrial
identification procedure, an in-court identification will still be allowed if it
has an “independent source” – that is, if the prosecution can prove that the
in-court identification is based on observations of the suspect __________
____________ the unconstitutional show-up, line-up or photo array.
C. To make this showing, the prosecution can point to factors such as:
(1) the witness’ opportunity to ________ the defendant at the crime
scene;
(2) the ________________________ of the description given to the
police; and
(3) the _______________________of the witness’s identification.
Hypo: A man commits bank robbery and takes a teller hostage as he exits. They drive
to a remote location an hour away. They remain there for two hours, during which time
the teller and robber are in close proximity, and the robber does not disguise his
identity. He then drives away alone and is apprehended the next day. The teller
provides an accurate and detailed description of the robber to the police. The next day,
she picks the defendant out of a line-up, commenting that she is “100% sure” he is the
robber. The line-up, which occurs after formal charging, is conducted outside the
presence of the defendant’s counsel, and thus violates the defendant’s Sixth Amendment
rights. Notwithstanding the constitutional violation, the witness should be allowed to
make an in-court identification because:
her ample opportunity to _____________ the suspect before the line-up, the
_________________________ of the description she provided to the police, and the
__________________________of her identification demonstrate that the in-court
identification is based on the teller’s observations at the ____________________ and
the _________________, not at the uncounseled __________________.
X. GRAND JURIES
1. What do they do? They issue ____________________.

2. Are their proceedings public? ______. They are _____________.
3. Do states have to use grand juries as part of the charging process? ____________
XI. PRETRIAL PROCEEDINGS
1. The “First Appearance:” Soon after arrest, a defendant must be brought before a
magistrate who will:
A. advise him of _______________________;
B. ___________________________________, if necessary; and
C. _____________________.
(1) To comply with the constitutional prohibition on “excessive” bail,
the amount should generally be no greater than what is
necessary to ensure the accused’s presence at trial; however, bail
may be denied, and the accused detained pending trial, based on
proof of ____________________________________________.
2. Evidentiary standard: The government needs ____________________________
that a defendant committed the charged offense to bind him over for trial and to
either impose bail or detain him in jail before trial.
3. Preliminary hearings: A pretrial hearing to determine probable cause (sometimes
called a Gerstein hearing) is unnecessary to justify pretrial detention if:
A. the grand jury has issued an __________________________; or
B. a magistrate has issued an ______________________________.
XII. TRIAL RIGHTS (“Fast Facts”)

1. Speedy Trial: All criminal defendants have the constitutional right to a
_______________ trial; to determine whether that right has been violated,
courts should consider the totality of the circumstances, including:
A. the __________________ of the delay;
B. the ________________ for the delay; and
C. _____________________ to the defendant.
2. Evidentiary disclosure: A prosecutor must disclose to a criminal defendant all
___________________, _______________________ evidence (the Brady rule)
3. Judges: The right to an unbiased judge means two things:

A. The judge has no ______________________________ in the outcome of
the case; and
B. The judge has no ___________________________ towards the defendant.
4. Juries:
A. Fundamental protections: All criminal defendants have the right to a
____________ and _____________________ jury.
B. Right to jury trial: Criminal defendants have the right to a jury trial
when the maximum authorized sentence exceeds ______ months.
C. Requisite number of jurors: The fewest number of jurors allowed in a
criminal trial? ______
D. Unanimity of jury verdicts: Jury verdicts in criminal trials must be
unanimous only if ______ jurors are used; verdicts in ________________
juries need not be unanimous.
E. “Cross-sectional” requirement: The “cross-sectional” requirement
regarding jurors requires that the __________ from which the jury is
drawn represents a cross-section of the community; therefore, a jury that
contains all white women over the age of 60 does not violate the cross-
sectional requirement, provided the _________ from which it was drawn
was appropriately diverse.
F. Peremptory challenges: Peremptory challenges permit both sides to
exclude jurors without stating their reasons for doing so, but they cannot
be used by either side to exclude prospective jurors on account of ______
or ____________.
5. Counsel: Claims of ineffective assistance of counsel are subject to a two-prong
test:
A. “Deficiency” requirement: Defendant must show that his counsel’s
performance fell below an objective standard of ____________________,
meaning that counsel made errors so serious that he was not functioning as
counsel; and
B. “Prejudice” requirement: Defendant must also show that, “but for” the
deficiency, the ________________ of the trial would have been different.
Example of strictness of deficiency standard: Insufficient showing of

deficiency where attorney took “cat naps” during trial but was otherwise
effective.
Example of strictness of prejudice standard: Insufficient showing of
prejudice where attorney slept through entire 15-minute testimony of a
witness for the prosecution and thus could not engage in any cross-
examination; no prejudice because the witness testified as to “non-
contested matters” only.
C. Upshot: Because of the strictness of the two-prong test, unless there is
some colorable argument that the defendant is ___________________,
always deny relief under an ineffective assistance of counsel claim.
XIII. GUILTY PLEAS AND PLEA BARGAINING
1. A valid plea: For a guilty plea to be valid, the judge must establish that it is
__________________________ and ___________________________.
2. “Plea-Taking Colloquy:” Before accepting the plea, the judge must conduct a
colloquy in open court in which she addresses on the record:
A. the ________________ of the charges, including required elements of the

charged offense; and
B. the ________________________ of the plea, e.g., waiver of the right to

plead not guilty; waiver of the right to a trial.
3. Withdrawing the plea: Once a defendant who has pled guilty is sentenced, it is
difficult for him to withdraw his plea. He may do so, however, if:
A. the plea is _________________________, due to a defect in the plea-

taking colloquy;
B. the defendant prevails on a claim of _____________________________

of counsel; or
(1) Special circumstance – deportation risk: If a guilty plea carries

a risk of deportation, counsel’s failure to inform her client of that
fact satisfies the _______________________ requirement of
ineffective assistance of counsel claims; to establish prejudice, a
defendant must further prove that a decision to reject the plea
bargain would have been rational under the circumstances.
C. *the prosecutor fails to fulfill his or her part of the _________________.
Example: Prosecutor agrees to make no sentencing recommendation

but, at the sentencing hearing, he tells the judge to impose the
maximum penalty.
Remedy: Defendant can withdraw plea and go back to square one.
XIV. PUNISHMENT
1. Eighth Amendment standard:
The Eighth Amendment prohibition against cruel and unusual punishment
disallows criminal penalties that are ___________________________
__________________________ to the seriousness of the offense committed.
Example: A repeat offender convicted of felony grand theft for stealing golf clubs
worth $1,200 was sentenced to life in prison under California’s “three strikes”
law, which greatly enhanced penalties for individuals with two or more prior
convictions for “serious” or “violent” felonies. HELD: In light of the defendant’s
long felonious history, the sentence was not grossly disproportionate to the
gravity of the offense and, thus, did not violate the Eighth Amendment.
2. The Eighth Amendment and the Death Penalty:
A. Statutory Limits: A death penalty statute would violate the Eighth

Amendment if it created an __________________________________ for
the imposition of the death penalty.
Example: A statute that provides that “any conviction for first
degree murder where the victim is a police officer requires the
imposition of a sentence of death.”
B. Evidentiary requirements: In deciding whether to impose the death

penalty, jurors must be allowed to consider all ____________________
____________________________ evidence.
C. Categorical exclusions: The Eighth Amendment prohibits the imposition
of the death penalty:
(1) against defendants with __________________________________
(2) against defendants who are presently ___________________
(3) against defendants who were under the age of _____ at the time the
relevant offense occurred (not their present age)
(a) Note: It is also unconstitutional to sentence juvenile

offenders to mandatory life in prison without the possibility
of parole.
(4) on crimes against individual persons, e.g., child rape, where the
victim did not _________
3. Sentence Enhancement:
A. Any fact that increases either the statutory maximum or the mandatory
minimum sentence for a crime must be found by the _________________,
not the _______________.
Example: Where evidence that a crime is motivated by hate allows a
sentence to be increased by 10 years beyond the statutory maximum, such
finding must be made by the jury, beyond a reasonable doubt.
(1) However, the decision as to whether sentences for multiple crimes
are to run ______________________ or _____________________
may be made by the judge.
XV. DOUBLE JEOPARDY (“…nor shall any person be subject for the same offence to be twice
put in jeopardy of life or limb” by the same sovereign)
1. When does “jeopardy” attach?
A. Jury trial: when the ___________ is sworn
B. Bench trial: when the _____________________ is sworn
C. Guilty plea: when the court accepts the defendant’s plea

________________________
2. Does the double jeopardy clause apply to civil proceedings? _____
Example: If the SEC prosecutes civilly for insider trading, the U.S.
Attorney can later prosecute the same individual for securities fraud without
implicating double jeopardy.
3. The “same offense” requirement:
A. General Rule: Two offenses are not the “same offense” for purposes of
the double jeopardy clause if each contains an ____________________
the other does not.
Consider these two statutes:
Vehicular Manslaughter Hit-and-Run
*1. Causing death of another 1. Causing bodily injury to another

2. Through the use of an auto 2. Through the use of an auto
3. Operated negligently 3. Operated negligently
*4. And unlawfully leaving the scene
of the accident
Vehicular Manslaughter and Hit-and-Run are not the same offense for
double jeopardy purposes because:
Vehicular manslaughter requires proof of _________, which hit-and-run

does not; and hit-and-run requires proof that the defendant unlawfully
_________________________, which vehicular manslaughter does not.
B. Greater and “Lesser-Included” Offenses: Are two offenses the “same

offense” if only one offense has an element not contained in the other?
Consider, for example, the following statutes:
Auto Theft Joyriding
1. Taking and operating an auto 1. Taking and operating an auto

2. Without the owner’s consent 2. Without the owner’s consent
*3. With the intent to permanently
deprive the owner of possession
Both offenses contain the first two elements; however, only Auto Theft
contains a third, additional element. Thus, Joyriding is a “lesser-included”
offense of Auto Theft.
Now consider the following facts:

A man steals a car from a parking lot and is apprehended while driving it
two weeks later. He faces charges for Auto Theft and Joyriding.
(1) If he is prosecuted for Auto Theft, can he later be tried for

Joyriding?
_____. Prosecution for the greater offense (auto theft)

_________________ later prosecution for the lesser-included
offense.
(2) Is the reverse permissible? That is, if he is first tried for joyriding
(the lesser-included offense), can he later be prosecuted for auto
theft (the greater offense)?
_____. Prosecution for the lesser-included offense _________

___________________ later prosecution for the greater offense.
4. The “same sovereign” requirement:
A. Double Jeopardy bars retrial for the same offense by the same sovereign
ONLY. Who are the same sovereigns for purposes of the double jeopardy
clause?
(1) State and federal government? _____

(2) Different states? _____
(3) States and municipalities within them? _____
5. The four exceptions to the double jeopardy rule that permit retrial:
A. a _____________________;
B. a mistrial for _________________________________;
Example: Retrial was permitted based on manifest necessity
where a defect was found in the indictment during trial that could
not be cured by amending it.
C. a ________________________________, unless the reversal on appeal

was based on the insufficiency of the evidence presented by the
prosecution at trial; or
D. a breach of the _________________________ by the defendant.
XVI. FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

(“TAKING THE FIFTH”)
1. Who can “take the Fifth?” _______________________
Examples: defendants, witnesses, parties to civil proceedings
2. When can someone “take the Fifth?”

The privilege can be asserted in any proceeding in which an individual testifies
_________________________.
Examples: trial, administrative hearing, Congressional hearing
3. Can the failure to assert the privilege in a civil proceeding undermine the ability
to assert it in a later criminal proceeding?
_____. If an individual responds to questions in a civil proceeding, he cannot

________________ that evidence in a subsequent criminal proceeding on self-
incrimination grounds.
4. What is the scope of this “testimonial” privilege?
A. Because this is a testimonial privilege, it disallows negative prosecutorial

comment on:
(1) a defendant’s decision not to ________________ at his trial; and
(2) a defendant’s invocation of his right to _____________________
or _____________________.
(a) However, prosecutors may comment negatively on the
noncustodial _____________________ during police
interrogation of a defendant who has not invoked his
Miranda rights.
B. Because this is a testimonial privilege, it does not apply to the _________
of documents whose production was mandated by subpoena.
5. The three ways to eliminate the privilege:
A. Grant of immunity:
(1) Prosecutors can grant “use and derivative use” immunity, which
bars the government from using your testimony or anything
___________________________________ to convict you.
Hypo: Erin testifies at Amanda’s trial that the two of them robbed a bank
together. Through a different witness, the prosecutor introduces footage
from the bank’s surveillance cameras that clearly show Erin and Amanda
perpetrating the crime. Can the prosecutor use this footage to convict
Erin of bank robbery in a separate trial if her testimony is subject to use
and derivative use immunity?
_____. The footage was not _________________ from Erin’s testimony.
(2) Remember: An individual can be convicted based on evidence

obtained _____________ to the grant of immunity.
B. Taking the stand: By taking the stand, the defendant waives the ability to
“take the Fifth” as to anything properly within the scope of
_______________________________________.
C. Statute of Limitations: The privilege is unavailable if the statute of
limitations has run on the underlying crime since, in this circumstance, a
witness’s testimony could not expose him or her to _________________
_____________________________.
INDEX
I. SEARCH AND SEIZURE – FOUR GLOBAL ISSUES ......................................................................1

II. SEARCH AND SEIZURE – ISSUE ONE (THRESHOLD FOURTH AMENDMENT ISSUES) ...............1
1. Government agents ..........................................................................................................2
2. Protected areas and items.................................................................................................2
3. The two Fourth Amendment tests....................................................................................3
4. Standing to challenge a search or seizure ........................................................................4
III. SEARCH AND SEIZURE – ISSUE TWO (SEARCHES WITH WARRANTS) ......................................5
1. Neutral and detached magistrate ......................................................................................6
2. Probable cause requirement .............................................................................................6
3. Particularity requirement .................................................................................................7
4. “Good faith” doctrine ......................................................................................................7
5. Executing the search warrant ...........................................................................................8
a) Compliance with its terms and limitations ..........................................................8
b) “Knock and Announce” rule ..............................................................................8
IV. SEARCH AND SEIZURE – ISSUE THREE (WARRANTLESS SEARCHES) ......................................9
1. Exigent circumstances .....................................................................................................9
2. Search incident to arrest.................................................................................................10
3. Consent ..........................................................................................................................11
4. “Automobile” exception ................................................................................................12
5. Plain view ......................................................................................................................13
6. Inventory searches .........................................................................................................14
7. Terry stops and frisks.....................................................................................................14
Terry stops .....................................................................................................................14
Terry frisks .....................................................................................................................16
Evidentiary standards .....................................................................................................16
8. Special needs .................................................................................................................18
V. SEARCH AND SEIZURE – ISSUE FOUR (EXCLUSIONARY RULE AND ITS LIMITS) ..................19
1. Case-in-chief vs. cross-examination .............................................................................20
2. “Knock and announce” violations .................................................................................20
3. Police error.....................................................................................................................20
4. Officers’ reasonable mistakes ........................................................................................20
5. Fruit of the poisonous tree .............................................................................................20
a) General principles .............................................................................................20
b) Admitting tainted fruit.......................................................................................21
(1) “Independent source” doctrine ...................................................................21
(2) “Inevitable discovery” doctrine .................................................................21
(3) “Attenuation” doctrine ..............................................................................21
VI. WIRETAPPING AND EAVESDROPPING ....................................................................................22
1. Wiretapping ...................................................................................................................22
2. Eavesdropping ...............................................................................................................22
VII. THE LAW OF ARREST ............................................................................................................22

1. When an arrest has occurred .........................................................................................22
2. Standard of proof ...........................................................................................................23
3. Offenses permitting custodial arrest ..............................................................................23
4. When an arrest warrant is required ................................................................................23
VIII. CONFESSIONS........................................................................................................................23
1. Overview........................................................................................................................23
2. Excluding confessions under Due Process Clause ........................................................23
3. Sixth Amendment right to counsel ................................................................................23
4. Fifth Amendment Miranda doctrine ..............................................................................24
a) Implied rights ....................................................................................................24
b) Core Miranda warnings ....................................................................................24
c) Core Miranda requirements ..............................................................................25
(1) Custody requirement ..................................................................................25
(2) Interrogation requirement ..........................................................................25
(3) Public safety exception ..............................................................................26
d) Respecting Miranda ..........................................................................................26
e) Miranda waivers .................................................................................................26
(1) Core requirements .....................................................................................26
(2) Executing the waiver .................................................................................27
(3) Burden of proof .........................................................................................27
f) Invoking Miranda rights .................................................................................27
(1) Right to remain silent ...............................................................................27
(2) Right to counsel ........................................................................................28
g) Limits on evidentiary exclusion .....................................................................28
IX. PRETRIAL IDENTIFICATION ..................................................................................................29
1. The three types of identifications ..................................................................................29
2. Substantive challenges to pretrial identifications ..........................................................29
a) Denial of the right to counsel ............................................................................29
(1) Fifth Amendment .....................................................................................29
(2) Sixth Amendment .....................................................................................29
b) Violations of due process .................................................................................30
3. Remedial considerations ..............................................................................................30
X. GRAND JURIES........................................................................................................................31
1. What they do ..................................................................................................................31
2. Private proceedings ........................................................................................................31
3. Mandatory or optional?..................................................................................................31
XI. PRETRIAL PROCEEDINGS .......................................................................................................31
1. “First Appearance” ........................................................................................................31
2. Evidentiary Standard .....................................................................................................31
3. Preliminary hearings ......................................................................................................31
XII. TRIAL RIGHTS ......................................................................................................................31

1. Speedy trial ....................................................................................................................31
2. Evidentiary disclosure ...................................................................................................31
3. Judges ............................................................................................................................32
4. Juries ..............................................................................................................................32
5. Proving ineffective assistance of counsel ......................................................................32
a) Deficiency requirement .....................................................................................32
b) Prejudice requirement .......................................................................................32
c) Upshot ...............................................................................................................33
XIII. GUILTY PLEAS AND PLEA BARGAINING..............................................................................33
1. Requirements of a valid plea .........................................................................................33
2. “Plea-taking colloquy” .................................................................................................33
3. Withdrawing a guilty plea after sentencing ...................................................................33
XIV. PUNISHMENT ........................................................................................................................34

1. Eighth Amendment standard ......................................................................................34
2. Death penalty and the Eighth Amendment ................................................................34
a) Statutory limits ................................................................................................34
b) Evidentiary requirements ................................................................................34
c) Categorical exclusions ....................................................................................34
3. Sentence enhancement ...............................................................................................35
XV. DOUBLE JEOPARDY .............................................................................................................35

1. When jeopardy attaches .............................................................................................35
2. Application to civil proceedings ................................................................................35
3. The “same offense” requirement ................................................................................36
4. The “same sovereign” requirement ............................................................................37
5. The four exceptions to the double jeopardy rule ........................................................37
XVI. FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED TESTIMONY (“TAKING THE

FIFTH”) ................................................................................................................................37
1. Who may assert the privilege .....................................................................................37
2. When the privilege can be asserted ............................................................................37
3. Effect of waiving the privilege ...................................................................................38
4. Scope of the privilege .................................................................................................38
5. Eliminating the privilege ............................................................................................38

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CRIMINAL PROCEDURE

PROFESSOR KIP CORNWELL

Copyright © 2016 by BARBRI, Inc.

Professor Kip Cornwell

Most important topic: Fourth Amendment Search and Seizure

Additional topics: Wiretapping and Eavesdropping; Law of Arrest; Pretrial

I. SEARCH AND SEIZURE OVERVIEW - FOUR “GLOBAL” ISSUES:

1. Whether a search or seizure is governed by the Fourth Amendment;

II. SEARCH AND SEIZURE – ISSUE ONE:

For the Fourth Amendment to apply, there must be an affirmative answer to

1. Was the search or seizure executed by a government agent?

Copyright © 2016 by BARBRI, Inc.

QUESTION 1: Was the search or seizure executed by a government agent?

Most important category:

1. ________________________________, on or off duty;

Additional categories of potential government agents:

2. ________________________________, if (and only if) they are acting at

4. __________________________________, e.g., principals; vice-principals

QUESTION 2: Was the search or seizure of an area or item protected by the

1. The Fourth Amendment expressly protects individuals from unreasonable

A. _________________ (i.e., bodies);

B. _________________ (including hotel rooms);

C. _________________ (e.g., personal correspondence); and

D. _________________ (personal belongings, e.g., purses,

2. The protection of “houses” includes the “curtilage,” an area

Examples: front porch; back yard enclosed by fence

Mnemonic: “Public Observation Generally Obliterates Fourth

P ________________________________ (e.g., the sound of your

1. Trespass-based test: The agent ________________________________

A. To satisfy the privacy-based test, an individual must show:

Example: Police violated the Fourth Amendment when,

*Key principle: To have authority, or “standing,” to challenge the lawfulness of a

Accordingly, does a search or seizure by a government agent implicate

1. if they own the premises searched? ___________________

5. if they own the property seized? Only if they have a reasonable

6. if they are passengers in cars? Not as to searches of the automobile, since

We must now determine if the search or seizure complies with Fourth

Searches or seizures require warrants, unless an exception applies. As we

ISSUE TWO addresses the constitutional requirements of those searches

ISSUE THREE will address warrantless searches and seizures.

III. SEARCH AND SEIZURE – ISSUE TWO:

This issue asks four key questions:

1. Was the warrant issued by a neutral and detached magistrate?

QUESTION 1: Was the warrant issued by a neutral and detached magistrate?

Standard: A judicial officer ceases to be sufficiently “neutral and detached” for

QUESTION 2: Is the warrant supported by probable cause and particularity?

Probable cause requires proof of a “______________________________”

A. Is hearsay admissible for this purpose? ___________

________. The police have confirmed enough of the tipster’s information

A. the ______________ to be _____________________; and

________. This is a “__________________________” that authorizes a

A warrant that is invalid due to the absence of probable cause or

Thus, if multiple choice question or essay question presents a

QUESTION 3: Does an officer’s “good faith” save a defective search warrant?

An officer’s “good faith” overcomes constitutional deficits in probable cause

1. The affidavit supporting the warrant application is so egregiously lacking

2. The warrant is so facially deficient in _____________________________

3. The affidavit relied upon by the magistrate contains knowing or reckless

If the police had either a valid warrant or a defective warrant saved by

QUESTION 4: Was the search warrant properly executed by the police?

Areas: any rooms other than the _______________________ and the

B. When executing a search warrant, officers may detain occupants

Example 1: “No-knock” entry was deemed reasonable where there was

Example 2: “No-knock” entry was deemed unreasonable where

A. the to be _______; and

. This is a “__________________” that authorizes a

. The contraband was found in a _____________ inside

_, because Jill is _______________ at the time of the search.

, since she did not ________________________________

With respect to the burglary? . Tamara _________________