Sunday, April 1, 2012

Criminal Law Outline (3)


Tips for Exam Writing
· On any multiple transaction hypothetical, make a breakdown of each transaction.
ex: 1- Burglary, 2- Robbery
· Organize each transaction by legal issue.
· Make a 1 pg. checklist of the most significant issues that you learned in class.
It should be between 9-12 issues, not 38 issues!
Then memorize the checklist so that your outline on an exam will come out of that checklist.
· For each entry on your major issue list, make a subtopic list. (ex: elements of burglary).
· Use IRAC, tell the professor the rule, and state the public policy bases for that rule (to the extent that you can). The more policy that you can discuss, the better.

Elements of a Crime
- any act that can be bodily movement.
· Professor’s love to use on an exam the 3 bodily movements that don’t qualify for criminal liability:
1. An act that is not the product of the person’s own volition. (ex: someone pushes you into a 3rd person and that 3rd person falls into the street and is hit by a car).
2. The reflexive/convulsive act. (ex: epileptic seizure).
3. An act performed while unconscious or asleep. (ex: sleep walking).

· For Criminal Liability you need:
1. an
(a) act or
(b) omission.
2. Culpability (mens rea)
3. Causation
· There is no duty to rescue, but sometimes there is a legal duty to act.
A legal duty to act can arise in 5 circumstances:
1. Statute (ex: filing taxes)
2. Contract
3. Relationship between the parties (ex: parents and their children)
4. Voluntarily assuming a duty of care to someone else and then failing to perform that duty. (ex: you see someone drowning in a lake and you tell everyone that you will save that person. You jump in the water and swim over to him, but when you see that it is someone that you know and don’t like, you turn back and change your mind. You have a duty to save him because someone else probably would have if you didn’t tell them that you would save him).
5. When your conduct created the circumstance. (ex: Pushing someone into a pool).

There are 4 Common Law Mental States for Crimes:
1. Specific Intent- you can qualify for additional defenses here that are not available with other types of crimes. (You Should Memorize These):
a. Solicitation
b. Conspiracy
c. Attempt
d. 1st Degree Murder- if you see murder by itself on an exam, it means common law murder, which is murder in the 2nd degree. This isn’t specific intent, it is a malice crime. So, common law murder cannot be used one of the additional defenses that applies only to specific intent crimes. But, if the professor uses the phrase, 1st degree murder (common law doesn’t have degrees of murder), specific intent can be used and the additional defenses that apply only to Specific Intent crimes can be used to try to reduce 1st degree murder to malice.
1st Degree Murder
1. Unlawful and unjustified
2. killing
3. of another human being
4. with malice aforethought
5. premeditation and deliberation

2nd Degree Murder
- All of the 1st four elements in 1st Degree Murder apply except (5), premeditation and deliberation.

Voluntary Manslaughter
- The unlawful killing of another human being without malice aforethought. You cannot have a cooling off period for voluntary manslaughter

Involuntary Manslaughter
- Reckless conduct and willful and wanton.
e. Assault- *** This will be discussed later. Look under the Common Law Crimes Section
f. Larceny
g. Embezzlement
h. False Pretenses
i. Robbery
j. Burglary
k. Forgery
2. Malice- Only 2 types of Malice Crimes:
a. Murder
b. Arson
Malice has 2 meanings:
1. Intent
2. (a) Subjective
} Recklessness
(b) Objective
Malice Aforethought- 3 types:
1. intent to kill
2. intent to cause grevious harm
3. gross recklessness (indicating a depraved heart).
3. General Intent Crimes- this is a catch all category; almost every crime in the criminal Code is a General Intent Crime. (ex: rape and battery, but there are many more).
4. No Intent Crimes (Strict Liability)- any defense that negates intention cannot be a defense to the no intent crimes of Strict Liability.
- Consent or state of mind is not a defense to Strict Liability, so the only defense to Strict Liability is that the statute is unconstitutional.
- If the crime is in the administrative, regulatory, or morality error, it is strict liability. If you don’t see any adverbs in the statute, (ex: willfully, intentionally, etc.), it usually falls under strict liability.
· On an exam, you should say generally, there is no defense to strict liability. However, it has to be a voluntary act.

· The Professor wants you to answer which crimes go with which Mental State on an exam.
Memorize the Specific Intent Crimes. All other crimes will be General Intent unless they fall under Strict Liability.

What is the difference between Specific Intent Crimes & General Intent Crimes?
Specific Intent- the state must prove the intent and it cannot be inferred by conduct (they must have independent evidence of what you intended).
General Intent- the state does not have to put in any independent evidence of what you intended and intent can be inferred from conduct. (ex: battery is a general intent crime).

Transferred Intent- you intend to kill someone with a gun, but the bullet accidentally hits and kills someone else. You are still guilty because the intent was transferred.

· Professors Love To Put This On An Exam:
1. Murder- the guy you killed
2. Attempted Murder- the guy you intended to kill

Model Penal Code (MPC)- Know the 4 Intents:
- It is not important to line up all of the crimes under the MPC.
1. Purposely- If you engage in conduct no matter how unlikely to produce the result, but he dies anyway. (ex: I want to kill the guy. I want the result that he die).
2. Knowingly- You didn’t want X to die, but you engaged in conduct knowing very likely that he would die.
· Purposely and Knowingly equate to Specific Intent at Common Law
3. Recklessness- You engage in conduct where there is a great risk of harm, was aware of the risk and disregarded it. (ex: drunk driving; driving past a school bus w/flashing lights on).
4. Negligence- This is like civil negligence, but in a much higher standard.
· Recklessness and Negligence are not Specific Intent Crimes,
they are intents under the MPC only.

Accomplice Liability
- accomplices are liable for the crime itself and all other foreseeable crimes.
1. Specific intent or purpose to commit a crime, or specific intent or purpose to engage in the underlying crime (ex: drag racing)
2. Shared intent of the crime of principle.
· It is important that you do not give just anyone accomplice liability on an exam unless the person is actively aiding, abetting, or counseling a crime. Don’t give accomplice liability to a person who was just present at the scene when the crime was committed, even if they seemed to be consenting or didn’t call the police at the time.
· Conspiracy and accomplice liability very ofter occur together.
Under the Pinkerton rule, if you make an agreement to commit a crime, and the crime was foreseeable, it makes you an accomplice.

Joint Venture- group criminal conduct.

Incohent Crimes- 3 Types
1. Solicitation- asking someone to commit a crime. Solicitation ends when the person agrees to commit the crime. Then it becomes conspiracy.
· Conspiracy is almost certain to be on an exam.
2. Conspiracy- There are 3 elements of conspiracy:
a. An agreement
b. An intent to agree
c. An intent to pursue an unlawful objective.
- The liability for conspiracy is very large. Each conspirator is liable for all the crimes of a co-conspirator if those crimes were committed in furtherance of the conspiracy and were foreseeable. (ex: There was a conspiracy to import drugs from San Diego to LA and the drugs were then sold in LA. The people in San Diego are conspirators for the drugs sold in LA even if they don’t know each other).
· This is an all-time favorite on an exam: The agreement does not have to be expressed; it doesn’t have to be written or spoken.
Defenses to Conspiracy:
Overt Act- any little act that will be in furtherance of the conspiracy. (ex: Conspirator shows up in an agreed upon place to commit a robbery and a 2nd meeting is held that he didn’t know about. This is an overt act).
· State both the majority and minority rule unless the professor tells you to only state one of the rules. (ex: if the prof. states that there was an agreement plus an overt act).
Majority Rule- there must be an agreement plus some overt act in furtherance of the conspiracy.
Minority Rule- grounded liability with the agreement itself.
- Impossibility is no defense to conspiracy.
· This is a professor’s favorite:
Withdrawals. A conspirator can never withdraw from liability for the conspiracy itself, even if it is adequate. A co-conspirator can only withdraw from liability for the other co- conspirators’ subsequent crimes.
3. Attempt= Specific Intent + a substantial step beyond mere preparation in the direction of the commission of the crime. Mere preparation for a crime cannot ground liability for a crime. You need specific intent.
Acts of Attempt
1. Physical proximity test- Another way to think about physical proximity is dangerous proximity.
2. Last Act Step (this is an early attempted crime).
3. Substantial Step (Model Penal Code).
4. Unequivocality (Acts): there’s a much broader scope of liability. Here, the actions must be certain.
Defenses to Attempt:
State the MPC position and the majority rule today:
- Impossibility is no defense to a charge of attempt.
MPC Position- If the facts were as D believed them to be, and if that would be a crime, then he can be guilty of attempt. The MPC has abolished impossibility and used purpose and knowledge.

Defenses to Insanity- There are 4 tests to Insanity:
1. McNaughton Rule- This is the traditional insanity test. D is not guilty if he lacked the ability at the time of the conduct to know the wrongfulness of his actions or to understand the nature and quality of his actions. (ex: A grabbed for B’s throat, but thought he was squeezing a lemon).
2. Irresistible Impulse- D lacked the capacity for self-control and free choice.
3. Durham Rule- test in DC and Columbia. D‘s conduct was a product of a mental illness.
4. MPC Test- D lacked the ability to conform conduct to the requirements of the law.

Defense for Intoxication:
1. Voluntary Intoxication- self induced. Addicts and alcoholics are voluntarily intoxicated. It is a defense only to specific intent and no others. (ex: A drinks too much and breaks into B’s house. He then beats B up, takes his keys and gets into a car accident with B’s car. Voluntary Intoxication is a defense to burglary[which is specific intent], but not to battery [which is general intent], or the car accident [which is Strict Liability]).
2. Involuntary Intoxication- (ex: something was slipped in your drink). This is a form of insanity and is a defense to all crimes.

Self-Defense- 2 Types can be used here:
1. Non-deadly Force- a victim may use non-deadly force anytime the victim reasonably believes that force is about to be used on him. You have to have a imminent (immediate) threat of harm.
2. Deadly Force-
a. Majority Rule- it can be used anytime the victim reasonably believes that the deadly force is about to be used on him.
b. Minority Rule- requires the victim to retreat to the wall if it is safe to do so.
If the professor tells you that you are in the retreat jurisdiction, there are 3 exceptions:
1. You do not have to retreat out of your own home.
2. You do not have to retreat if you are a victim of rape or robbery.
3. Police officers have no duty to retreat.
· You should mention both the majority and minority rules for Deadly Force unless the professor says otherwise.
The Model Penal Code- gives a little leeway stating when the harm is immediate or present. Present expands the immediate standard.

When can an original aggressor give a defense of self-defense?
An original aggressor has to withdraw and then stop and tell the victim that he is withdrawing. (He has to communicate to the original victim that he is withdrawing).

Defense of Others- There is 1 concept here:
The reasonableness of the believer that the person you aided needed your assistance. The key is the factual question of assistance.

Defense of A Dwelling:
Rule- Deadly force may never be used solely to defend your property. Deadly force can only be used in defense of a dwelling if you are in the house at the time. With a burglary, you are protecting family and with a spring gun, you are only protecting property.

Duress & Necessity:
They are defenses to all crimes, except homicide.
Duress- ex: someone puts a gun to your head and tells you to rob a store.
1. Fear of imminent danger
Necessity- ex: a plane crashes with no food and you have to eat someone to survive.
1. Genuine belief that it was necessary.
2. Reasonable person would have made that choice.
3. No other legal alternative available.

Mistake of Fact:
Professors will make the defenses here vary depending on the mental state:
1. Reasonable. Any mistake is a defense if they are charged with a Specific Intent Crime. It is a defense only when it negates intention, so mistake of fact (go to #2)
2. Never negates Strict Liability.

Mental State of Crime Application of D

1. Specific Intent- Any mistake
(reasonable or unreasonable)
2. Malice & General Intent- Reasonable mistakes only

3. Strict Liability- Never, Never, Never

Mistake of Law:
There is no excuse for Mistake of Law. If you didn’t know it was illegal, it is still no excuse.

Generally, do not indulge in this on an exam. It is almost never a defense to a crime.
ex: Showing consent to intercourse against a charge of forcible rape.

Defense of Entrapment:
All you need to know is that it is very narrow and almost never available because the pre-disposition on part of the D to commit a crime negates entrapment.

Common Law Crimes:
1. Battery- a completed assault. This is a General Intent Crime.
2. Assault- There are 2 theories here:
a. Assault as an attempted battery- (ex: you take a swing at me, I duck and therefore you miss. This is a Specific Intent crime.
b. Assault as a Threat- A threat with bodily injury. This is a General Intent Crime.
3. Homicide- This is an unsubtle point:
a. In any homicide question, the victim must be human!
b. Murder by itself (which is common law murder and murder in the 2nd degree) is a malice crime.

· Voluntary Intoxication and Mistake of Fact are 2 additional defenses that can only be used for specific intent crimes and therefore cannot be used for murder.
· 1st Degree Murder, however, is a specific intent crime and therefore can be used to negate 1st degree murder and reduce it to common law murder (murder in the 2nd degree).

You Need to Show 4 Intents for Murder:
1. Intent to kill
2. Intent to do great bodily harm
3. Abandoned and Malignant Heart Murder (also known as Depraved Heart Murder)- an intentional performance of an act entailing a substantial likelihood to cause murder. (ex: Russian Roulette).
4. Felony Murder- causing death while committing a felony makes that death felony murder.
What are the purposes of felony murder?
1. To discourage the commission of any felon.
2. To discourage death from resulting if a crime is committed.
3. It removes an argument about accidents and it eases the burden of proof. 
Defenses to Felony Murder:
1. If D has a defense to the underlying felony, he has a defense to felony murder.
2. The felony must be independent of the murder- the felony in question has to be something other than the killing. (This is known as the merger rule).
3. The deaths must be foreseeable.
4. The deaths caused while fleeing from a felony are felony murder but once D reaches some point of temporary safety, like spending the night at his mother’s house, the deaths that result are not a felony. (ex: D commits a felony and while fleeing from the felony, he hits a kid named B. D continues on to his mother’s house, sleeps there, and in the morning hits a kid named C. B’s death is felony murder but C’s death is not).
5. D is not liable for the death of a co-felon as a result of resistance by the victim or the police.
The Policy Behind This- a co-felon’s death is a justifiable homicide for self-defense, but if someone is killed as a result of trying to kill the co-felon, they are held liable.
· On an exam, you have to argue all of the elements of an underlying felon.

Manslaughter- 2 Types:
1. Voluntary Manslaughter- you should label the various homicides. Never use voluntary manslaughter unless you can find passion. It is a provoked killing that gives rise to passion without time to cool off.

2. Involuntary Manslaughter- 2 Kinds:
a. Killing from criminal negligence. (ex: falling asleep at the wheel of a car).
b. misdemeanor manslaughter- killing while perpetrating a misdemeanor or an enumerated felony (a felony not specifically stated in a list of crimes).

Sex Offenses:
1. Rape
a. unlawful sexual relations
b. against the will (no consent)
c. force or threat of force (reasonable)
- The slightest penetration completes the crime of rape.
2. Statutory Rape- Strict Liability. Consent of victim and mistake of fact are no defenses to statutory rape.
3. Crimes of Nature- fornication, adultery, bestiality, etc. Professor’s probably won’t go here.

Property Acquisition- 3 Types:
1. Larceny- requires an unlawful taking. The key here is that it is an unlawful taking without consent.
a. Common law larceny requires the taking and carrying away (asportation). Be sure that the intent to deprive the owner permanently exists at the time of the taking or it is not common law larceny. Taking property in the belief that it is not yours, or if you believe that you have some right to it is not common law larceny.
Larceny is a Specific Intent Crime, so any mistake, no matter how silly, is a defense to common law larceny.
ex: 1. A takes B’s TV with the intent to return it tomorrow and it breaks in the process.
2. A takes $100 from B since B owes him money.
3. A mistakenly believes that larceny does not include the taking of a dog, so A takes B’s dog and sells it to someone else.
4. A takes B’s car thinking that it is his own.
Only choice 3 would qualify for larceny because A intended to permanently deprive B and mistake of law is no defense to larceny. In choice 1, A didn’t intend to permanently deprive B; and in choices 2 and 4, A honestly believed that it was his own property.

b. Continuing Trespass-
2 best examples:
1. You take an umbrella believing it is yours. You realize when you get home that it is not yours, but you keep it anyway. This is larceny by continuing trespass. It is not common law larceny because you didn’t have intent, but it is still statutory larceny.
c. Larceny by trick.- (ex: changing price tags).
· For larceny, D does not have to benefit herself.

2. Embezzlement
a. D has lawful possession
b. fraudulent or unlawful conversion of property
- The secret here is the lawfulness of the possession. A classic embezzler is a trustee over a trust fund.
· With both larceny and embezzlement, D gets possession only, not title.
3. False Pretenses- D persuades owner to convey by false pretenses. The key distinction to false pretenses is that the D convinces the owner to convey title by false pretense. A false promise to do something in the future is not a false pretense. It must be to a present or past act.
-Know how to distinguish these three-

Robbery= larceny + assault:
So you need all the elements of larceny to get to robbery.
In order to have a robbery, D must take from the person or his presence. Presence is broadly drawn- you take from the person either by violence (ex: yanking a necklace off of your neck), or by putting in fear your money or life, and it must be an imminent harm, not a future harm.
Future harm is extortion. (ex: give me $500 in 5 days or I will kill you).

Threats of future harm. You don’t have to take anything from the person or his presence.

a. Common law burglary requires a break-in. It can be actual or constructive burglary.
Common law burglary has to be in a dwelling house of another person at night with the intent to commit a felony inside.
1. Actual Burglary- at common law, it is not a break-in to come through a wide open door or an open window. But, if you push open an interior door after you come through the front door, it is a burglary.
2. Constructive Burglary- the intent to commit a felony has to exist at the time of the burglary or it is not common law burglary. (ex: women gives a cleaning guy a key to her apt. and he uses the key at 3 a.m. to break-in with his friends).
b. Statutory Burglary- breaking or entering at any time of the day.

a. Common law arson is the malicious burning of the dwelling house of another. It only applies to fire, not explosions. Arson has to be a material burning of the fiber of the building itself. Burning a carpet in a hallway that doesn’t touch the walls is not arson. Burning your own house is not common law arson.
b. Statutory Arson includes burning your own house.

· The Most Important Topics to Remember For a Criminal Law Exam ·

1. Specific Intent Crimes
2. General Intent Crimes
3. Strict Liability
4. Transfer Intent
5. MPC Crimes
6. Accomplice Liability
7. Inchoate Crimes (Solicitation, Conspiracy, Attempt)
8. Defenses- Insanity, Intoxication, Self-Defense, Mistake of Fact (the all-time favorite)
9. Law of Crime- Always set out the common law 1st, then the elements. Know assault, battery, homicide, and the defenses to felony murder.
10. Know larceny, embezzlement, and false pretenses.
11. Robbery, burglary, and arson.
12. Essay questions are devoted to Public Policy. Why do we use criminal sanctions, why statutes, etc.
13. Organize by transaction, legal issue, IRAC, state the issue, the rule, and discuss the public policy. Then apply it and reach your conclusion.

I. Exclusionary Rule
This is a remedy that someone who has been the victim of an illegal search can use to have the evidence excluded.
Limitations on Exclusion:
1. Exclusion does not apply to conduct of Grand Juries.
2. Exclusion does not apply in civil proceedings. (ex: tax fraud).
3. In order to qualify for exclusion, the search in question must violate either the federal constitution or a federal statute.
The Good Faith Defense- When can it be used?
1. The police rely on good faith when a judicial opinion is later changed by another judicial opinion.
2. Good faith can apply to reliance on a statute or ordinance that is later declared unconstitutional.
3. Good faith can apply to reliance on a defective search warrant or on a computer error where the record keeping is not attributable to the police.
4 Exceptions to the Good Faith Defense- If you fall under one of these categories, an officer will not get the benefit of the good faith defense:
a. If the affidavit underlying the warrant is so lacking on probable cause that no reasonable officer would have relied on it. (ex: Aguilar case. No word of why the police thought drugs were at D‘s residence).
b. Warrant is invalid on its face. (ex: if the warrant failed to state with particularity the place to be searched).
c. If the affiant, who is usually the police, lied to or misled the magistrate.
d. The magistrate has totally abandoned his judicial role.

Limitations on the Exclusionary Rule:
1. Fruit of the Poisonous Tree Doctrine- not only must the evidence itself be excluded, but all other derived evidence as well.
There are 3 ways to break the chain between the excluded evidence and other derived pieces of evidence:
a. An independent source for that allegedly derived piece of evidence.
b. Inevitable Discovery.
c. Intervening Acts of Free Will on the Part of the D. (ex: hiring and consulting an attorney).

II. The Law of Arrest:
A warrant is generally not required for an arrest.
Common law standards for warrantless arrests are between felonies and misdemeanors.
a. Felonies- those crimes punishable for more than 1yr. in jail.
b. Misdemeanors- those punishable by up to 1yr. or less.

The police may arrest without a warrant:
1. Anytime they have reasonable grounds to believe that the felony was committed.
2. If a misdemeanor was committed in their presence.
3. Arrest warrants are not required prior to a public arrest.

The police need an arrest warrant:
1. For a misdemeanor not committed in their presence.
2. Anytime it is a non-emergency arrest of an individual in his own home.
· The police need probable cause to arrest in order to compel you to come to the station for finger printing or questioning.

III. The Law of Search and Seizure- Ask yourself these questions:
1. With any search and seizure, does this person have a 4th Amendment right?
You have to have both of these to prove a 4th Amendment right:

a. Governmental conduct. Publicly paid police are always governmental conduct. Any private individual acting in the direction of the public police are considered government conduct. Privately paid police are not government conduct unless they are deputized with the power to arrest.

b. Reasonable Expectation of Privacy. Use these 3 standards to check for reasonable expectation of privacy:

1. You own the premises being searched.
2. You live on the premises being searched.
3. You are an overnight guest on the premises being searched.
These are all standards to object to a search warrant. If a person has no standing to object, then it is not a reasonable expectation of privacy.

· Passengers to a car do not have a standing to object to a search just because they were present at the time. 
2. Did the police have a search warrant? If so, test the validity of the warrant:
a. If the warrant is good it can be used.
b. If the warrant is not good, see if the police can use the good faith defense to save the evidence.
3. If you can’t use good faith defense, can this search fit into any of the valid 6 narrowly drawn exceptions to the warrantless search rule?

a. Incident to lawful arrest- the arrest must be lawful:
1. Contemporaneous requirement- it must be contemporaneous in the time and place with the arrest.
2. Geographic scope
3. Person and his wing span can be searched during an arrest. When a person is validly arrested in a car, their wing span includes the entire compartment of the car, but not the trunk. 
b. Automobile exception- there is no greater analytical error than to think that a car has anything to do with the automobile exception. For the automobile exception, police need:
1. Probable cause. The same probable cause they would have needed to get a search warrant is required. This justifies the search of the entire car, including the trunk, any packaged containers, etc.
United States v. Ross- perfect automobile exception. The police had received 30 reports that drugs were being transacted in a car, but didn’t know who the owner of the car was or who was actually selling the drugs. He only knew that it was the correct car. The officer can search the entire car, but cannot arrest the driver. They can open any luggage containers, etc. that can reasonably contain the item(s) in question. Probable cause can arise after the search has occurred. If the police find the drugs, then they can arrest the person in the car. Probable cause can arise after the car is stopped, but it must occur before the search
c. Plain view- the officer has to be legitimately present when he/she does the viewing and they have to see the crime in plain view. (The officer cannot come running across your private property and then see the crime).

d. Consent- it must be voluntary and intelligent.
1. The police do not have to warn you that you have a right to consent.
2. When 2 or more people have an equal right to the property in question, either one can consent.
e. Stop and frisk- One of these 3 are required:
1. You need a reasonable suspicion, which is less than probable consent. 2. Weapons are always admissible so long as the stopping is reasonable.
3. How much like a weapon or contraband (drugs) the items could have looked like from the outside.
f. Hot pursuit and Invanescent Evidence. Invanescent evidence is evidence that might go away by the time you go get a warrant. (ex: the blood sample of a drunken driver. another ex: the scraping underneath of fingernails; if you take the time to get a search warrant, the person may go wash their hands).

ex: A cab driver heard on his CB news of a fleeing felon and saw someone of that description run into a house. The cab driver calls the police and they enter the home without a search warrant on a hot pursuit. The police find bloody clothes and drugs in the washing machine in the basement. If the police are truly in hot pursuit, they can enter anybody’s home and keep the evidence. 
4. A warrant is not required to search or seize something of a public nature- Examples:
a. sound of voice.
b. style of handwriting.
c. paint on the outside of a car.
d. account records
e. monitoring the location of a car on a public street or in your driveway.
f. anything that can be seen from an open view.
g. anything that can be seen from the public air space.
h. odors emanating from luggage.
I. garbage set out on the curb for collection.
The seizure of these items implicates the right of privacy.

Other Legal Searches and Seizures:
All wiretapping and eavesdropping require a search warrant.
· However, all persons assume the risk that the person to whom he is speaking will be wired or will consent to the government monitoring the conversation. (ex: people masquerading as drug dealers). In these circumstances, a search warrant is not required.

IV. What Can Be Used to Obtain a Warrant?
1. Hearsay can be the issue for a warrant. The police can rely on informants.
Rule: You can have a valid warrant based in part on an informant’s tip, even though the informant is anonymous.
Illinois v. Gates- a couple fly and drive to another state for drugs. The police observed this on their own from a tip by an anonymous letter. They got a warrant even though the observation was based on an anonymous tip. All that was necessary was the sum of everything.
2. The warrant must be precise on its face. It must state with particularity the place to be searched.
3. Neutral and detached. The person who is issuing the warrant must be neutral from law enforcement. (ex: the Attorney General is not neutral because she is the principle law enforcer. Who is neutral? Court clerks.

V. Miranda Rights
The police is required to give the Miranda rights before arrest and questioning.
In any Miranda based question, look for:
1. custody- the person must be in custody at the time. If at the time of interrogation, the person was not free to leave, then they are in custody and should be read their Miranda rights. Probation interviews and routine traffic stops are not custodial. They don’t need Miranda warnings.
· You don’t need warrants for spontaneous statements. (ex: The police knock on your door and you run out of the house and say, “Are you here about the car I stole?” The police just wanted a donation to the Police Benevolent Fund, however then can still arrest you and use the statement). The police can always use blurts, etc.
2. interrogation- any conduct where the police knew or should have known that they might solicit a damaging statement.
If you find both custody and interrogation, you have to say the Miranda rights.
If after the rights are read, the guys shrugs his shoulder or says nothing, is this a waiver? NO

· END ·

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