Criminal Procedure – BARBRI Outline | A+
Graded BAR Exam
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
a. Ex) DA went to Court for search warrant and told magistrate evidence for PC the affidavit
stated police received info from confidential informant who has provided them reliable info
in the past. AKA DA telling magistrate informant is ok.
b. Independent officer must be able to determine probable cause
2. Facially deficient in particularity officers could not presume it to be valid
3. If affidavit contains knowing or reckless falsehoods necessary to the probable cause finding
,a. Only negligently included not enough, at the very least reckless
4. If magistrate is biased in favor of the prosecution
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
Graded BAR Exam
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
a. Ex) DA went to Court for search warrant and told magistrate evidence for PC the affidavit
stated police received info from confidential informant who has provided them reliable info
in the past. AKA DA telling magistrate informant is ok.
b. Independent officer must be able to determine probable cause
2. Facially deficient in particularity officers could not presume it to be valid
3. If affidavit contains knowing or reckless falsehoods necessary to the probable cause finding
,a. Only negligently included not enough, at the very least reckless
4. If magistrate is biased in favor of the prosecution
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
